King v. O'Malley

• Court: District Court, N.D. New York
• Decided: September 3, 2024
• Docket: 8:23-cv-00090
• Status: Unknown

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

SCOTT K.,

Plaintiff, v. Civil Action No. 8:23-CV-090 (DEP)

MARTIN J, O’MALLEY, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

SCHNEIDER & PALCSIK MARK SCHNEIDER, ESQ. 57 Court Street Plattsburgh, NY 12901

FOR DEFENDANT

SOCIAL SECURITY ADMIN. JASON P. PECK, ESQ. 6401 Security Boulevard Baltimore, MD 21235

1 Plaintiff’s complaint named Kilolo Kijakazi, in her official capacity as the Acting Commissioner of Social Security, as the defendant. On December 20, 2023, Martin J. O’Malley took office as the Commissioner of Social Security. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.2

Oral argument was conducted in connection with those motions on August 15, 2024, during a telephone conference held on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the

Commissioner=s determination did not result from the application of proper legal principles and is not supported by substantial evidence, providing further detail regarding my reasoning and addressing the

specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, a transcript of which is attached and incorporated herein by

2 This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court considers the action procedurally as if cross-motions for judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. reference, it is hereby ORDERED, as follows: 1) Plaintiff's motion for judgment on the pleadings is GRANTED. 2) |The Commissioner’s determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge Dated: September 3, 2024 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SCOTT KING

Plaintiff,

vs. Civil Action No. 8:23cv090

MARTIN J. O'MALLEY, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x

Transcript of a Decision from a Teleconference Hearing held on August 15, 2024, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

A P P E A R A N C E S

For Plaintiff: SCHNEIDER & PALCSIK 57 Court Street Plattsburgh, New York 12901 BY: MARK A. SCHNEIDER, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, Maryland 21235 BY: JASON P. PECK, ESQ.

Lisa M. Mazzei, RPR Official United States Court Reporter 10 Broad Street Utica, New York 13501 (315) 266-1176 1 (The following is an excerpt of a 2 teleconference hearing held on 8/15/2024.) 3 THE COURT: All right. Fine. Thank you. Let me 4 just run through the background real quickly of this case. 5 Plaintiff was born in February of 1968. He is 6 currently 56 years of age, lives in Ellenburg Depot with his 7 mother. He stands 5-foot-7 inches in height, weighs 8 168 pounds. 9 The evidence is a little equivocal as to his 10 educational background. He testified, and there was a 11 statement that he ended his high school days in 10th grade 12 where he was in regular classes. That's at 322 and 65 of the 13 administrative transcript. There is also evidence he 14 received an IEP diploma and was in special ed classes. 15 That's at 79 and 1228. He is right-handed. He does not 16 drive, due to seizures and blackouts, as well as undergoing 17 multiple motor vehicle accidents. 18 Plaintiff worked as a hospital food service worker 19 for 27 years. It's a little equivocal as to when he last 20 worked. At one point it was suggested May of 2020, and 21 another October 29, 2020. In any event, he has not worked 22 since. 23 Plaintiff suffers from Type 1 diabetes, seizure 24 disorder, and generalized idiopathic epilepsy from undergoing 25 a childhood bout with meningitis. He has foot issues, vision

LISA M. MAZZEI, RPR 1 issues. He was hospitalized in November of 2019, in the 2 emergency room for a diabetes-related issue. He was -- he 3 suffered from diabetic ketoacidosis. 4 Mentally he suffers from variously described 5 conditions. Adjustment disorder, anxiety, obsessive 6 compulsive disorder. 7 In terms of activities of daily living, plaintiff 8 can dress, bathe, groom, does some meal preparation. He 9 cleans, he does laundry with his mother. He shops with his 10 mother or sister, reads, walks, watches television, plays 11 computer games. He has a hobby of woodworking with a scroll 12 saw and stated at one point he hoped to establish it as a 13 business. 14 Plaintiff applied for Title II benefits. The 15 application was made in November 1, 2020, alleging an onset 16 date of October 29, 2020, and claiming disability based on 17 seizures, worsening eyesight, and type 1 diabetes. That's at 18 321. 19 A hearing was initially conducted on October 27, 20 2021, by Mary Sparks, who subsequently retired before issuing 21 a decision. A second hearing was conducted on April 6, 2022, 22 by Administrative Law Judge Jude Mulvey. A decision was 23 rendered -- adverse decision, I should say, by ALJ Mulvey on 24 May 4, 2022. The Appeals Council of the Social Security 25 Administration denied plaintiff's application for review on

LISA M. MAZZEI, RPR 1 January 11, 2023, and specifically considered subsequently 2 submitted evidence, including school records and a 3 neuropsychological evaluation from Dr. Taher Zandi, finding 4 no basis to overturn the decision based on the new evidence. 5 This action was timely commenced on January 23, 2023. 6 In the decision, Administrative Law Judge Mulvey 7 applied the familiar five-step sequential test for 8 determining disability, finding substantial gainful -- 9 counsel, I'm going to ask you to mute your phones, please -- 10 finding that he had not engaged in substantial gainful 11 activity since October 29, 2020. 12 At step two, ALJ Mulvey concluded that plaintiff 13 suffers from severe impairments that impose more than minimal 14 limitations on his ability to perform work functions, 15 including diabetes type 1, a seizure disorder, and an 16 adjustment disorder rejecting neuropathy and other related 17 claims concerning plaintiff's feet, rejecting worsening 18 eyesight and hearing loss. 19 The Administrative Law Judge did go through a 20 mental assessment and did note that based on Dr. Hartman's 21 consultative examination, a diagnosis of adjustment disorder 22 that was indicated, and that the various other cognitive 23 neurodevelopmental and related complaints concerning 24 plaintiff's mental capacity and abilities have been 25 considered under that adjustment disorder umbrella and

LISA M. MAZZEI, RPR 1 specifically noted that all claimant's medically determinable 2 impairments, including those deemed not severe were 3 considered when assessing the claimant's residual functional 4 capacity or RFC. 5 At step three, the ALJ concluded plaintiff's 6 impairments do not meet or medically equal any of the listed 7 presumptively disabling conditions set forth at 8 commissioner's regulations. 9 At step four -- I'm sorry. First, there is a 10 determination based on the record that plaintiff was capable 11 of performing light work with the following exceptions. He 12 cannot climb ladders, ropes, or scaffolds; must avoid all 13 exposure to moving mechanical machinery and unprotected 14 heights; cannot drive as a part of job duties; can perform 15 simple, routine and repetitive tasks in a work environment 16 free from fast-paced production requirements and involving 17 only simple, work-related decisions and few, if any, 18 workplace changes; and can tolerate a low level of work 19 pressure defined as work not requiring multitasking, detailed 20 job tasks, significant independent judgment, a production 21 rate pace, sharing of job tasks, or anything more than 22 occasional contact with the public. Applying this RFC at 23 step four, the Administrative Law Judge concluded plaintiff 24 is incapable of performing his past relevant work as a food 25 service worker, hospital.

LISA M. MAZZEI, RPR 1 At step five, with the benefit of testimony from a 2 vocational expert, the Administrative Law Judge found that 3 there are positions in the local economy -- in the national 4 economy that plaintiff is capable of performing, including as 5 a silverware wrapper, marking clerk, and routing clerk, and 6 therefore concluded that he was not disabled at the relevant 7 times. 8 As the parties know, the Court's function is 9 limited to determining whether substantial evidence supports 10 the determination and correct legal principles were applied. 11 Obviously, it is a well-established standard and very 12 differential, as the Second Circuit has noted in Brault vs. 13 Social Security Administration Commissioner, 683 F.3d, 443 14 2012, later reiterated in Schillo vs. Kijakazi at 31 F.4th 15 64, Second Circuit 2022. 16 The plaintiff has raised several issues in a very 17 comprehensive, multifaceted challenges outlined in his brief. 18 First he challenges the step two determination and the 19 failure to include cognitive impairments, anxiety and 20 depression as severe impairments. 21 He next argues error in finding plaintiff's 22 disability was caused by noncompliance with prescribed 23 treatment. He alleges error in discounting plaintiff's 24 subjective reports of symptomology. 25 The fourth ground is alleged error in the

LISA M. MAZZEI, RPR 1 evaluation of medical opinions. He also challenges the RFC 2 determination. He attacks the step five determination and 3 the sufficiency of job numbers testified to by the vocational 4 expert as satisfying the Commissioner's burden at step five 5 and argues that new evidence should have been considered by 6 Social Security Administration Appeals Council, including the 7 neuropsychological evaluation report of June 8, 2022, 8 addressing first step two. 9 Obviously, the claimant must show that he or she 10 has a medically determinable impairment at step two that 11 rises to the level of a severe impairment, 20 CFR 12 404.1520(a)(4)(2). It does not reach the threshold of 13 severity where it does not significantly limit the claimant's 14 physical or mental ability to do basic work activities. And 15 of course it is a de minimus requirement intended only to 16 screen out the weakest of cases. A medically determinable 17 impairment by regulation must be established by objective 18 medical evidence from an acceptable medical source, 19 20 CFR 404.1521. 20 In this case, plaintiff has no history of 21 outpatient mental services. Dr. Hartman did opine that he 22 suffers from an adjustment disorder, which the Administrative 23 Law Judge did include at step two. Clearly, there was a 24 statement by Dr. Bret Hartman, the consultative examiner that 25 a mild neurocognitive disorder and a mild autism spectrum

LISA M. MAZZEI, RPR 1 disorder should be ruled out. Those, however, do not 2 constitute diagnoses. 3 Plaintiff argues that there was a duty to order 4 cognitive testing based on Dr. Hartman's opinion, but there 5 was -- Dr. Hartman did not recommend it and plaintiff did not 6 request it. In fact, the plaintiff's counsel said the record 7 was complete when asked by the Administrative Law Judge. 8 Dr. Taher Zandi, who issued a post-hearing 9 determination report found a developmental disorder of 10 scholastic skills and borderline intelligence. I am not sure 11 whether that qualifies as a diagnosis, but if it does, it 12 came after the ALJ's determination and therefore has to be 13 analyzed under the new evidence standard, which I will 14 address in a moment. But I find no error in -- at step two. 15 And, furthermore, if there was error, it is harmless because 16 the Administrative Law Judge proceeded to step three and 17 stated that she considered all of plaintiff's mental 18 impairments even those deemed not severe, and so that 19 suffices to establish harmless error. Lorraine H. vs. 20 Commissioner of Social Security, 2022 WL 4545541 from the 21 Northern District of New York, September 29, 2022. 22 In terms of noncompliance, this is an interesting 23 issue. The Administrative Law Judge noted plaintiff's 24 noncompliance, but it was, as part of a credibility -- what 25 we used to call credibility, part of the analysis of

LISA M. MAZZEI, RPR 1 plaintiff's subjective complaints. It was not in and of 2 itself relied upon as a basis to deny disability. There were 3 three areas of noncompliance cited: The refusal to take 4 insulin before rather than after meals. Plaintiff could not 5 avoid high sugar snacks. And he stopped using an InPen 6 Bluetooth device without explanation. 7 The failure to abide by prescribed treatment is a 8 proper consideration in addressing subjective complaints. 9 SSR 16-3P provides, quote, we will consider an individual's 10 attempts to seek medical treatment for symptoms and to follow 11 treatment once it is prescribed when evaluating while the 12 symptom intensity and persistence affect the ability to 13 perform work-related activities for an adult. It goes on to 14 state: If the individual fails to follow prescribed 15 treatment that might improve symptoms, we may find the 16 alleged intensity and persistence of an individual's symptoms 17 are inconsistent with the overall evidence of record. It's 18 also consistent with the finding in Calabrese vs. Astrue, 358 19 F. App'x 274, Second Circuit 2009, where when the so-called 20 back in the day, credibility assessment was addressed by the 21 Second Circuit, it was noted that plaintiff was noncompliant 22 in taking the medication that was prescribed by her doctors. 23 Plaintiff relies on SSR 18-3p, which addresses 24 initial denials of claims on this basis. He argues that the 25 reason he did not take insulin before rather than after

LISA M. MAZZEI, RPR 1 dinner was he was concerned about hypoglycemic attacks, which 2 the ALJ noted. She did not, however, address the high sugar 3 snacks and stopping usage of InPen issues. I find the 4 substantial evidence supports the Administrative Law Judge's 5 reliance on this as one of several factors in evaluating 6 plaintiff's claims. 7 Which brings me to the evaluation of those claims, 8 so-called credibility. The assessment of a plaintiff's 9 subjective complaints are -- must be addressed first to 10 whether the claimant has a medically determinable impairment 11 that could reasonably be expected to produce the alleged 12 symptoms. And, if so, then the ALJ must evaluate both the 13 intensity and persistence of those symptoms and the extent to 14 which they may limit the claimant's ability to perform 15 work-related activity. 16 As I indicated before, it's addressed by SSR 16-3p. 17 When addressing this second prong, the ALJ must consider the 18 objective medical evidence and other evidence in the record, 19 including statements by the claimant and reports from both 20 medical and nonmedical sources and must evaluate the 21 intensity, persistence and limiting effects of the claimant's 22 symptoms by considering various relevant factors that are 23 spelled out both in SSR 16-3p and 20 CFR 404.1529(c)(3) i 24 through vi. 25 And of course the ALJ in this case recited

LISA M. MAZZEI, RPR 1 plaintiff's claims at pages 18 to 19 and explained her 2 reasoning for discounting those claims at 19 through 25. I 3 find that the explanation does provide a basis for meaningful 4 judicial review. And of course that determination is 5 entitled to considerable deference if supported by 6 substantial evidence. Madeline S. v. Commissioner of Social 7 Security, 2022 WL 526233, Northern District of New York 8 January 27, 2022; Sherry L. v. Kijakazi, 2022 WL 561563, 9 Northern District of New York, February 24, 2022, and Aponte 10 vs. Secretary of Department of Health and Human Services, 728 11 F.2d 588, Second Circuit 584. 12 As I indicated before, one, but only one of several 13 factors that were relied on was the failure of plaintiff to 14 follow a prescribed treatment. There was also reliance on 15 objective findings showing many normal observations despite 16 failure of the plaintiff to follow a prescribed treatment. 17 The denial of neuropathy, plaintiff's activities of daily 18 living, including his woodworking at home, which he hoped to 19 make into a business. The fact that seizures apparently were 20 controlled well by medications. An EEG which showed mild 21 results. An MRI testing which showed only a right occipital 22 lobe lesion, various medical opinions. The fact that 23 plaintiff had no mental health treatment despite the fact 24 that Dr. Hartman recommended that he do so. 25 The plaintiff argues that it was -- the ALJ should

LISA M. MAZZEI, RPR 1 have considered plaintiff's good work history. Step four 2 shows that the ALJ was aware of plaintiff's work history 3 which clearly is one of many factors, but the failure to 4 mention it is not necessarily fatal. Wavercak v. Astrue, 420 5 F. App'x 91, Second Circuit 2011, and James D. vs. 6 Commissioner of Social Security, 547 F.Supp. 40279, Western 7 District of New York 2021. In my view, the Administrative 8 Law Judge's determination is supported by substantial 9 evidence and not patently unreasonable. 10 The plaintiff challenges the evaluation of medical 11 opinions in the record. Because this application was filed 12 in this case after March 27, 2017, evaluation of medical 13 opinion evidence is subject to new regulations under which 14 the ALJ must articulate how persuasive he or she finds the 15 medical opinions and explain how he or she considered the 16 factors of supportability and consistency of those opinions. 17 20 CFR Section 404.1520(c). 18 In this case, the first challenge is Dr. Hartman's 19 report and medical source statement which appears at 1228 to 20 1231 of the record. In his medical source statement, 21 Dr. Hartman concluded that plaintiff was able to understand, 22 remember and apply simple directions. He was able to 23 maintain personal hygiene and maintain awareness of hazards. 24 He is able to maintain an ordinary routine, mild difficulty 25 in using reason and judgment, mild to moderate difficulty

LISA M. MAZZEI, RPR 1 interacting adequately with others, mild to moderate 2 difficulty sustaining concentration, moderate difficulty in 3 understanding, remembering and applying complex directions, 4 and moderate difficulty in regulating emotions. 5 The Administrative Law Judge analyzes and addresses 6 Dr. Hartman's report at several locations in her decision at 7 page 15 and 22 through 24. The Administrative Law Judge at 8 page 15 found the following: There is insufficient evidence 9 with which to find a medically determinable learning 10 disorder, neurocognitive disorder or autism spectrum. Again 11 to establish a medically determinable impairment, medical 12 evidence must establish anatomical, physiological, or 13 psychological abnormalities that can be shown by medically 14 acceptable, clinical and laboratory diagnostic techniques. 15 The record lacks any specific diagnosis of such impairments, 16 including from the claimant's treating neurology records. 17 At page 22 addressing, again, Dr. Hartman, the ALJ 18 noted the following: I have accepted Dr. Hartman's diagnosis 19 of adjustment disorder with mixed anxiety and depression -- 20 depressed mood, only when affording extreme deference to 21 subjective reports and when considering the evidence in the 22 light most favorable to the claimant. This is despite the 23 claimant's admission that he had no history of any mental 24 health treatment and with his apparent failure to comply with 25 the Dr. Hartman's recommendation that he pursue such

LISA M. MAZZEI, RPR 1 treatment. 2 It's unclear to me exactly how the plaintiff views 3 this as inconsistent with the Administrative Law Judge's 4 determination. And, specifically, the RFC determination. 5 It's well-established that moderate limitations in such 6 mental health areas are not inconsistent with simple work. 7 Porteus v. O'Malley, 2024, 2180203 from the Northern District 8 of -- I'm sorry, from the Second Circuit 2024. 9 There is also a challenge to Physician's Assistant 10 Daniel Knef, a treating source opinion. His medical source 11 statement is dated April 19, 2021. It appears at 1216 to 12 1220 of the administrative transcript. It is found to be 13 partially persuasive. The Administrative Law Judge addresses 14 it at 23 to 24 of her decision. It is persuasive with 15 respect to the physical restrictions, but not persuasive on 16 standing and walking, the need for a brace and the absences. 17 Also, it is persuasive in calling for low stress work. The 18 Administrative Law Judge's review of the opinion of 19 Physician's Assistant Knef, in my mind, is appropriate and 20 well-explained. 21 There are prior medical administrative findings at 22 1A and 4A that appear to support the residual functional 23 capacity. They are issued by Dr. Y. Sherer on June 25, 2021, 24 addressing mental capacity, and Dr. J. Rosenthal on May 18, 25 2021, addressing physical capacity. There is also one from

LISA M. MAZZEI, RPR 1 March 25, 2021, from Dr. S. Siddiqui, addressing only the 2 physical capacity. They were discussed by the Administrative 3 Law Judge. It is well established that such prior 4 administrative medical findings can supply substantial 5 evidence if they are supported. Woytowicz v. Commissioner of 6 Social Security, 2016 WL 6427787 from October 5, 2016, 7 Northern District of New York. The report and recommendation 8 at that site was subsequently adopted, 2016 WL 6426385 9 October 28, 2016. They support, for the most part, the 10 Administrative Law Judge's RFC finding. Although the 11 Administrative Law Judge, while accepting Dr. Sherer and 12 Dr. Hartman's opinions actually imposed greater limitations. 13 Dr. Siddiqui did say at page 109 that the plaintiff may need 14 to be absent because of his medical condition. That was not 15 included in Dr. Rosenthal's opinion. In any event, it's 16 not -- it does not qualify as an opinion because it simply 17 says "may." Lisa A.S. v. Kijakazi, 2022 WL 4494189 from the 18 Northern District of New York, September 28, 2022. 19 Dr. Zandi's report, as I alluded to earlier, was 20 not before the Administrative Law Judge. It is therefore 21 subject to the analysis under the standard for after acquired 22 or new evidence. The Social Security regulations do 23 authorize the claimant to submit new and material evidence to 24 the Appeals Council when requesting review of an ALJ's 25 decision. 20 CFR 404.970(b). In order to merit the review

LISA M. MAZZEI, RPR 1 of the decision by the Appeals Council, the additional 2 evidence must be new material and related to the period on or 3 before the date of the hearing decision and also must show a 4 reasonable probability that such additional evidence would 5 change the outcome of the decision. In this case, the Social 6 Security Administration Appeals Council considered this 7 additional evidence and stated, quote, we find this evidence 8 did not show a reasonable probability that it would change 9 the outcome of the decision. This is at page 2 of the 10 administrative transcript. 11 Clearly, the opinion of Dr. Zandi shows that 12 plaintiff cannot perform complex tasks, but this is not 13 inconsistent with the RFC. I agree that it is close enough 14 in time to relate to the period in question coming only one 15 month after the ALJ's decision, but I also agree with the 16 Appeals Council that there is no reasonable probability that 17 would change the outcome. I note that there is no 18 requirement the Appeals Council elaborate on the substance 19 and consideration of after-acquired evidence. In this case, 20 I do not believe that it would undercut the ALJ's decision. 21 The next argument is that the RFC is not supported. 22 An RFC assessment represents a finding of a range of tasks a 23 claimant is capable of performing, not withstanding the 24 impairments at issue, and this means a claimant's maximum 25 ability to perform sustained work activities in an ordinary

LISA M. MAZZEI, RPR 1 setting on a regular and continuing basis, meaning eight 2 hours a day for five days a week, or an equivalent schedule. 3 Tankisi v. Commissioner of Social Security, 521 F. App'x 29, 4 Second Circuit 2013, 20 CFR Section 404.1545(a). It is the 5 burden, of course, on the plaintiff to show any limitations 6 that would impose more than limitations that appear in the 7 RFC. In my view, the plaintiff is requesting a reweighing on 8 the evidence, including the medical opinions. In this case, 9 the ALJ specifically stated she considered all of the 10 plaintiff's impairments, including neuropathy. The RFC is 11 supported by Dr. Siddiqui, Dr. Sherer, Dr. Rosenthal, and not 12 undercut by Dr. Wilson, Zandi, or Physician's Assistant Knef. 13 Regarding absences, Dr. Sherer opined to 14 plaintiff's ability to work within a schedule, maintain 15 attendance, and does not significantly limit it in this 16 regard. That's at 128. There is also a statement that 17 plaintiff can maintain a regular schedule. That's at 131. I 18 don't find that plaintiff carried his burden to show greater 19 limitations. 20 The next argument is concerning step five. The 21 step five determination was based on any testimony -- 22 testimony from a vocational expert, which is, of course, the 23 proper means of fulfilling an agency's burden at step five of 24 the disability test. Bapp v. Bowen, 802 F.2d 601, Second 25 Circuit 1986.

LISA M. MAZZEI, RPR 1 In this case, there was -- the vocational expert 2 testified to three specific jobs that plaintiff is capable of 3 performing that exists in sufficient numbers in the national 4 regional economy, including silverware wrapper, marketing 5 clerk, and routing clerk. Plaintiff argues that plaintiff is 6 incapable of performing level two reasoning jobs. Level two 7 requires the plaintiff to apply commonsense understanding to 8 carry out detailed, but uninvolved written or oral 9 instructions. They must be able to deal with problems 10 involving a few concrete variables in or from standardized 11 situations. 12 And the problem with this argument, of course, is 13 that for 27 years, plaintiff performed in a position, 14 hospital food service worker, that was actually a reasoning 15 level three position, which required him to apply commonsense 16 understanding to carry out instructions furnished in written, 17 oral, or diagramming form, and to deal with problems 18 involving several concrete variables in or from standardized 19 situations. 20 As plaintiff argues, a person's IQ remains 21 relatively stable throughout his or her adult life. And in 22 this case, the fact that plaintiff was able to perform in a 23 level three position for 27 years undermines this argument. 24 In any event, I have found that the residual 25 functional capacity in this case was supported and it's

LISA M. MAZZEI, RPR 1 consistent with a level two reasoning position. Timothy M. 2 v. Kijakazi, 2021 WL 4307445, Northern District of New York 3 2021. 4 In terms of the number of jobs, the regulations 5 state the following: We consider that work exists in the 6 national economy when it exists in sufficient numbers either 7 in the region where you live or in several other regions of 8 the country. It does not matter whether work exists in the 9 immediate area in which you live. That's 20 CFR Section 10 404.1566. 11 In this district, it is well established that 12 anything over 9,000 jobs suffices to meet the Commissioner's 13 burden. Kelly D. v. Saul, 2019 WL 6683542 Northern District 14 of New York 2019. The vocational expert was not asked about 15 regions, but the vocational expert testified to jobs totaling 16 171,199. And I think from that, it's safe to infer that jobs 17 exist in sufficient numbers in several other regions of the 18 country, and so I don't find any step five error. 19 Which brings us to an interesting issue. As 20 plaintiff's counsel noted in a submission, which is Docket 21 21, Social Security Administration made an initial level 22 finding of disability with an onset date of October 27, 2020. 23 An explanation of this occurs at page four of the document 24 which provides as follows: 25 While the evidence is sufficient and consistent to

LISA M. MAZZEI, RPR 1 support the proposed allowance, the onset date has been 2 established as of October 27, 2020. Evidence shows a prior 3 ALJ denial dated May 4, 2020. As explained -- and there's a 4 citation -- only the SSA component as the same or a higher 5 adjudicative level may reopen an administratively final 6 determination or decision. And it found that there were no 7 exceptions and therefore the earliest possible onset date is 8 May 5, 2022, the day after the ALJ's decision. 9 This determination is apparently based on a mental 10 RFC finding in a prior -- in a state prior administrative 11 medical finding prepared by the Department of Social Services 12 and it finds that the mental RFC justifies an inability to 13 sustain a normal workday/workweek based on plaintiff's 14 inability to sustain even the basic mental demands required 15 for unskilled work. 16 The Commissioner has responded to this in a 17 submission, which appears at Docket 23, stating it is not 18 binding. In oral argument, however, we had a healthy 19 discussion as to the impact of this on the Administrative Law 20 Judge's decision in this case and the Commissioner's ultimate 21 determination. 22 So while I was prepared to uphold the 23 Commissioner's determination in this case based upon my 24 review of the arguments raised by counsel and the record that 25 was before the Administrative Law Judge, and considering the

LISA M. MAZZEI, RPR 1 newly-acquired evidence that was before the Appeals Council, 2 in my view, given this determination, which relates to the 3 period at issue and is clearly inconsistent, I believe that 4 the Commissioner's determination should be vacated and the 5 matter remanded. I don't find persuasive evidence of 6 disability at this point. Although I think that ultimately 7 that will be the result based on this finding that he has 8 recently submitted, but -- and I understand 9 Attorney Schneider's argument that reveals the time and that 10 there shouldn't be any undue delay. But nonetheless, I think 11 that caution warrants that the matter be remanded without a 12 directed finding of disability. 13 So I will issue an order to that effect under 14 sentence four, vacating the Commissioner's determination and 15 remanding the matter for further consideration based upon 16 this decision, which will be transcribed and attached to the 17 order. And I appreciate counsels' excellent presentations. 18 I hope you enjoy the rest of your summer. 19 (Court adjourned, 11:58 a.m.) 20 21 22 23 24 25

LISA M. MAZZEI, RPR 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 I, LISA M. MAZZEI, RPR, Official U.S. Court 4 Reporter, in and for the United States District 5 Court for the Northern District of New York, DO 6 HEREBY CERTIFY that pursuant to Section 753, Title 7 28, United States Code, that the foregoing is a true 8 and correct excerpt of transcript of the stenographically 9 reported proceedings held in the above-entitled 10 matter and that the transcript page format is in 11 conformance with the regulations of the Judicial 12 Conference of the United States. 13 14 Dated this 26th day of August, 2024. 15 16 17 /S/ LISA M. MAZZEI

18 LISA M. MAZZEI, RPR Official U.S. Court Reporter 19 20 21 22 23 24 25 LISA M. MAZZEI, RPR