Spears v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: May 10, 2023
• Docket: 5:22-cv-00251
• Status: Unknown

Opinion

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

CODY J. S.,

Plaintiff, v. Civil Action No. 5:22-CV-0251 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICES OF JUSTIN GOLDSTEIN, ESQ. KENNETH HILLER, PLLC 6000 North Bailey Ave, Suite 1A Amherst, NY 14226

FOR DEFENDANT

SOCIAL SECURITY ADMIN. KRISTINA COHN, ESQ. 6401 Security Boulevard Baltimore, MD 21235

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) and 1383(c)(3) are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on May 3, 2023, during a telephone conference held on the

record. At the close of argument, I reserved decision on the motions. At a supplemental hearing held on May 8, 2023, 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 reference, it is hereby ORDERED, as follows:

1) Plaintiff=s motion for judgment on the pleadings is GRANTED.

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 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: May 10, 2023 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x CODY JAMES S.,

Plaintiff,

vs. 5:22-CV-251

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on May 8, 2023, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: LAW OFFICES OF KENNETH HILLER, PLLC Attorneys at Law 6000 North Bailey Avenue - Suite 1A Amherst, New York 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 6401 Security Boulevard Baltimore, Massachusetts 21235 BY: KRISTINA D. COHN, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and counsel present by telephone, 2 2:00 p.m.) 3 THE CLERK: We're on the record in the case of Cody 4 James S. versus Commissioner of Social Security, Case Number 5 5:22-CV-251, Counsel, can you please state your appearances 6 for the record starting with plaintiff. 7 MR. GOLDSTEIN: Good afternoon, this is Justin 8 Goldstein for plaintiff. 9 MS. COHN: Good afternoon, Kristina Cohn for 10 Commissioner of Social Security. 11 THE COURT: All right, good afternoon, Counsel. 12 I've had an opportunity now to reflect on this case further, 13 including the arguments that were raised last week during our 14 hearing, and also the supplemental briefing which I 15 appreciate that both of you provided, and I'm prepared to 16 make a ruling. 17 Plaintiff has commenced this action pursuant to 42 18 United States Code Sections 405(g) and 1383(c)(3) to 19 challenge an adverse determination by the Commissioner of 20 Social Security finding that he was not disabled at the 21 relevant times and therefore ineligible for the benefits for 22 which he applied. 23 The background is as follows: Plaintiff was born 24 in October of 1993, he is currently 29 years of age. 25 Significantly, he was 25 years old on the date he made 1 application for benefits in July of 2018. Plaintiff stands 5 2 foot 5 inches in height and weighs approximately 179 pounds. 3 Plaintiff lives in Cortland in a trailer home with his mother 4 and his mother's boyfriend. Plaintiff has a 12th grade 5 education. While in school he was in special education, 6 classified as learning disabled. It's unclear whether he 7 received an IEP diploma or a regular diploma. Plaintiff has 8 a driver's license but rarely drives, stating that he is too 9 afraid to drive. 10 In terms of work, plaintiff has very little prior 11 work experience. He stopped working in June of 2018. Prior 12 to that time for short periods he was in part-time positions 13 as a restaurant customer service person and a grocery 14 store/retail store stocker. He also spent one month as a 15 laborer/production in a factory. That was a full-time 16 position in 2017. 17 Physically, plaintiff suffers from type II 18 diabetes, and a history of nose and stomach issues. 19 Mentally, he experiences borderline intellectual functioning, 20 a learning disorder, and anxiety. Plaintiff has received 21 treatment from Family Care Medical Group since 2017, 22 primarily from Dr. Lynn Cunningham, who he characterizes as 23 his primary doctor. 24 Plaintiff has several activities of daily living 25 according to him in his function report and in statements 1 that he has made to others. He watches television, plays 2 video games, watches movies, visits with a friend, takes out 3 the trash, he cooks, cleans, does laundry, shops, he can 4 shower and dress. He noted that his mother helps him with 5 many of these chores. As I indicated, he does little 6 driving. He did testify that he can take public 7 transportation. 8 Procedurally, plaintiff applied for Title XVI 9 Supplemental Security Income benefits on July 10, 2018, 10 alleging disability based upon a learning disability, slow 11 comprehension, anxiety, and diabetes. A hearing was 12 conducted by Administrative Law Judge John P. Ramos on 13 November 19, 2019 to address that application. ALJ Ramos 14 issued an unfavorable decision on December 17, 2019. That 15 decision was vacated and the matter remanded by the Social 16 Security Administration Appeals Council on October 21, 2020. 17 ALJ Ramos conducted a second hearing on February 23, 2021, 18 following which he issued another unfavorable decision on 19 March 17, 2021. The Social Security Appeals Council denied 20 plaintiff's application for review of that determination on 21 January 20, 2022. This action was thereafter commenced on 22 March 15, 2022, and is timely. 23 In his second decision, Administrative Law Judge 24 Ramos applied the familiar five-step sequential test for 25 determining disability. 1 He found at step one that plaintiff had not engaged 2 in substantial gainful activity since July of 2018. 3 At two, he concluded that plaintiff does suffer 4 from severe impairments that impose more than minimal 5 limitations on his ability to perform basic work functions, 6 including borderline intellectual functioning and a learning 7 disorder. He rejected diabetes based upon medical showing 8 that the diabetes is controlled through medication and 9 treatment. 10 At step three, ALJ Ramos concluded that plaintiff's 11 conditions do not meet or medically equal any of the listed 12 presumptively disabling conditions set forth in the 13 Commissioner's regulations, including Listing 12.05 and 14 12.11. 15 After surveying the evidence in the record, ALJ 16 Ramos concluded that plaintiff has a residual functional 17 capacity, notwithstanding his impairments, to perform a full 18 range of work at all exertional levels with various 19 additional limitations, many of which, if not most, frankly, 20 relate to his mental capabilities, and I'll discuss that in 21 more detail further on. 22 At step four, ALJ Ramos concluded that plaintiff 23 does not have any past relevant work to compare and went on 24 at step five where he concluded, after considering the 25 testimony of a vocational expert, that plaintiff can perform 1 the work of a janitor, packager, and a warehouse worker as 2 three representative positions, and therefore concluded that 3 plaintiff was not disabled at any relevant time. 4 As the parties know, my function is limited, the 5 standard that I apply is extremely deferential. I must 6 determine whether correct legal principles were applied and 7 whether the resulting determination is supported by 8 substantial evidence, which is defined as such relevant 9 evidence as a reasonable mind would find sufficient to 10 support a conclusion. The standard has been addressed on 11 many occasions by the Supreme Court and the Second Circuit 12 Court of Appeals. The latter court addressed it in Brault v. 13 Social Security Administration Commissioner, 683 F.3d 443, 14 from June of 2012, and characterized the standard as 15 extremely stringent. The Second Circuit reiterated the 16 standard in Schillo v. Kijakazi, 31 F.4th 64 from April 6, 17 2022. 18 In support of his challenge to the determination, 19 plaintiff offers several arguments. He contends that the 20 residual functional capacity finding, or RFC, is not 21 supported. As subthemes of that argument, he questions Judge 22 Ramos' elimination of the need for frequent direct 23 supervision from his earlier decision and whether that 24 violates the Social Security Administration Appeals Council's 25 remand order. 1 Secondly, he contends that the administrative law 2 judge failed to evaluate the opinion of Connie Mantey, who is 3 an employment specialist, regarding the need for constant 4 supervision. He also argues that there improperly is no 5 discussion of a report from a school psychologist Tamara 6 Cass, and fourth, that the administrative law judge failed to 7 properly evaluate the achievement test results reflected in 8 Ms. Cass' opinion. He also argues that the step five 9 determination is improper, and indefensible because the jobs 10 identified require reasoning and language skills above 11 plaintiff's ability. 12 Third, he argues that step two and step three 13 determinations are not properly explained and subsumed with 14 that is the contention that if the education records of the 15 plaintiff were properly considered, he would meet or equal 16 one of the listed presumptively disabling conditions. 17 The fourth argument is that there was an improper 18 evaluation of Dr. Grassl's opinion. 19 At the hearing, plaintiff raised the additional 20 contention that the statement that, in Administrative Law 21 Judge Ramos' decision that plaintiff has a high school 22 education is erroneous and also clarified that there is a 23 conflict between the Dictionary of Occupational Titles, or 24 DOT, and the vocational expert's testimony, that is, should 25 have been teased out by the administrative law judge 1 concerning the language and reasoning skills required for the 2 three jobs identified. 3 Let me first address the high school diploma issue 4 which I found to be fascinating. It is true that in his 5 decision at page 21, Administrative Law Judge Ramos stated 6 that plaintiff has at least a high school education. The 7 matter is addressed in 20 C.F.R. Section 416.964 which sets 8 out four categories of education. The fourth is high school 9 education and above which is defined to mean, "abilities in 10 reasoning, arithmetic, and language skills acquired through 11 formal schooling at a 12th grade level or above." It goes on 12 to say, "We generally consider that someone with these 13 educational abilities can do semi-skilled work through 14 skilled work." 15 The achieved -- well, the achievement tests, the 16 Wechsler Individual Achievement Test Third Edition, or WIAT, 17 results were reported by Ms. Cass in her report dated 18 February 27, 2012. It reflects that plaintiff has a reading 19 comprehension score of 68, which puts him in the 2nd 20 percentile; a word reading score of 61, .5 percentile; oral 21 reading fluency, 61, .5 percentile; spelling, 64, puts him in 22 the 1 percentile. These would suggest plaintiff is more 23 likely in the limited education category as defined in 24 Section 416.964 of the Regulations which provides as follows: 25 "Limited education means ability in reasoning, arithmetic, 1 and language skills, but not enough to allow a person with 2 these educational qualifications to do most of the more 3 complex job duties needed in semi-skilled or skilled jobs. 4 We generally consider that a 7th grade through the 11th grade 5 of formal education is a limited education." 6 Social Security Ruling SSR 20-01p speaks in terms 7 of evaluating an individual's education quality. It says 8 that, "education primarily means formal schooling or other 9 training that contributes to an individual's ability to meet 10 vocational requirements, such as reasoning ability, 11 communication skills, and arithmetical ability." The ruling 12 goes on to say that, "the highest numerical grade level that 13 the individual completed in school may not represent his or 14 her actual educational abilities." It goes on further to 15 say, "When determining the appropriate education category, we 16 may consider whether an individual received special 17 education. For example, an extensive history of special 18 education may show that the individual's educational 19 abilities are lower than the actual grade he or she 20 completed." 21 I think in this case the administrative law judge 22 did commit error when stating that plaintiff has at least a 23 high school education. The error, however, I find is 24 harmless because in the vocational expert hypothetical 25 included at page 61 to 62 of the administrative transcript, 1 the vocational expert was told that the plaintiff is of 2 limited education and as a result, identifies the three jobs 3 at issue, so I don't find any error in that regard. 4 Plaintiff's next arguments focus on the residual 5 functional capacity finding of the plaintiff. A claimant's 6 RFC, of course, represents the range of tasks he is capable 7 of performing notwithstanding his impairments. That means a 8 claimant's maximum ability to perform sustained work 9 activities in an ordinary setting on a regular and continuing 10 basis, meaning eight hours a day for five days a week, or an 11 equivalent schedule, and of course an RFC determination has 12 been formed by consideration of all of the relevant medical 13 and other evidence. 14 In this case, the RFC provides as follows, after 15 identifying the -- that the plaintiff can perform all 16 exertional levels, ALJ Ramos went on to find the following: 17 "He retains the ability to understand and follow simple 18 instructions and directions; perform simple tasks with 19 supervision and independently," not sure what that means, 20 "maintain attention/concentration for simple tasks; and 21 regularly attend to a routine and maintain a schedule. He 22 can relate to and interact with coworkers and supervisors to 23 the extent necessary to carry out simple tasks -- i.e., he 24 can ask for help when needed; accept instructions or 25 criticism from supervisors; handle conflicts with others; 1 state his own point of view; initiate or sustain a 2 conversation; and understand and respond to physical, verbal 3 and emotional/social cues associated with simple work. He 4 can have brief, occasional interaction with the public. He 5 can make decisions directly related to the performance of 6 simple work, and he can handle usual workplace changes and 7 interactions associated with simple work. The claimant 8 should work in a position where he is not responsible for the 9 work of or required to supervise others. He should work in a 10 position with little change in daily work processes or 11 routine. Finally, the claimant can perform work that 12 involves one- or two-step rote tasks with no written 13 instructions or written record keeping." 14 The RFC in this case I find is supported by 15 substantial evidence, including the report of Dr. Grassl, who 16 found no limitations -- Dr. Corey Anne Grassl in her report 17 dated October 15, 2018 found no evidence of limitations in 18 certain areas and only moderate limitations in the ability to 19 understand, remember, and apply complex directions and 20 instructions, use reason and judgment to make work-related 21 decisions, and sustain concentration and perform a task at a 22 consistent pace. The RFC is also supported by the prior 23 state agency administrative determination of Dr. S. Hennessey 24 from November 13, 2018. 25 The issue of elimination of direct supervision 1 requirement in the RFC is a more troublesome one. The 2 earlier decision provides that the claimant requires frequent 3 direct supervision. In its remand order, the Appeals Council 4 noted that the residual functional capacity indicates that 5 the claimant requires frequent direct supervision. It is 6 unclear from the decision what basis exists for such a 7 limitation. It goes on to direct that on remand, the 8 administrative law judge further evaluate the claimant's 9 mental impairments, give further consideration to the 10 claimant's maximum RFC, and if warranted by the expanded 11 record, obtain supplemental evidence from a vocational expert 12 to clarify the effect of the assessed limitations on 13 claimant's occupational base. Rather than directly heeding 14 the Appeals Council's position, the administrative law judge 15 simply eliminated the requirement. I do agree with the 16 Commissioner that ordinarily, after a remand order from the 17 Appeals Council, review is de novo and there is no obligation 18 to include the same limitations in a subsequent decision. 19 This is a little different situation, however. The first RFC 20 included that limitation, there's no question that it 21 obviously came from an opinion provided by employment 22 specialist Connie Mantey on August 30, 2019. It's frankly 23 the only thing in the record I could find that deals with the 24 need for a job coach or continuous supervision, that appears 25 at 358 and 359. Unfortunately, however, the administrative 1 law judge did not discuss or even mention Ms. Mantey's 2 opinion in either of his two decisions. Under the 3 circumstances, I think the Administrative Law Judge Ramos 4 committed a legal error, and one that requires remand. 5 The next argument addresses the evaluation of 6 opinions. Based on the filing date of this case, it is 7 subject to the new Commissioner's regulations concerning 8 evaluation of opinions which considers whether they are 9 persuasive, primarily by considering whether the opinions are 10 supported by and consistent with the record in the case. The 11 ALJ, under the regulations, must address the issues of 12 supportability and consistency but need not address the other 13 relevant factors, although they should be taken into 14 consideration. The -- of course the weighing of conflicting 15 opinions, if there are any in the record, is reserved to the 16 Commissioner in the first instance. Veino v. Barnhart, 312 17 F.3d 578, Second Circuit 2002. 18 As I indicated, Connie Mantey gave an opinion in 19 this case at 358, 359, from August 27, 2019. After a trial 20 run at a position with an agency, Ms. Mantey stated the 21 following: "Cody will need a supervisor on site to give him 22 continuous directions to help him stay focused." Her title 23 is employment specialist which I liken to a vocational 24 rehabilitation counselor. The regulations suggest at 20 25 C.F.R. Section 416.902(j) that, while it isn't specific to 1 this position, it suggests that the, Ms. Mantey is a 2 nonmedical source. 3 I note that the prior SSR 06-03p which is now 4 rescinded explicitly listed these types of rehabilitation 5 counselors as nonmedical source and that appears also to be 6 supported by the decision in Sagman v. Commissioner of Social 7 Security, 2021 WL 5831114 from the Southern District of 8 New York, November 17, 2021. The opinion of Ms. Mantey, if 9 accepted, would seem to preclude employment since it would 10 require the presence of a job coach. Ms. Mantey, 11 Ms. Mantey's opinion, as I indicated, is not discussed in 12 either of the decisions by ALJ Ramos. It is true that 20 13 C.F.R. Section 416.920c(d) states that there is no 14 requirement to discuss the evaluation of a nonmedical 15 opinion, however, as you'll see further on, I think that may 16 be trumped by another consideration having to do with 17 plaintiff's age. 18 There is also an opinion in the record of Tamara 19 Cass from 342 to 348, she is a school psychologist, and 20 although this predates the -- the date of application by six 21 years, nonetheless, it is significant. It's not discussed by 22 ALJ Ramos. Ms. Cass is an acceptable medical source. 23 However, there is case law that to suggest that because of 24 its age and the fact that it predated by six years the 25 application in this case, there is no reason to consider and 1 analyze its impact upon the administrative law judge. 2 Williams v. Colvin, 98 F.Supp.3d 614 from the Western 3 District of New York, April 10, 2015, and Krach, 2014 WL 4 5290368 from the Northern District of New York, October 15th, 5 2014. 6 The medical source statement of Dr. Corey Anne 7 Grassl I indicated finds relatively few limitations, it's at 8 396 to 399 from October 15, 2018. As the ALJ references, it 9 was based upon a thorough examination. Granted, she did not 10 have available to her plaintiff's education records but there 11 is no requirement to obtain them. Dr. Grassl's opinion as a 12 consultative examiner can constitute substantial evidence. I 13 believe there is no error in not including greater 14 limitations on the ability to interact than opined, and 15 moderate limitation in ability to sustain concentration, 16 perform at a consistent pace is not inconsistent with simple 17 unskilled work. 18 Another thorny issue in this case really is 19 consideration of plaintiff's education records, and 20 specifically the report of Ms. Cass. As a backdrop, it is 21 clearly plaintiff's burden to establish a limitation in the 22 ability to perform work functions. The RFC in this case is 23 extremely limiting and specific. In his decision, ALJ Ramos 24 addressed the intelligence scores, the IQ scores that were 25 reported in Ms. Cass' opinion, that's at page 15 to page 16, 1 and that formed the basis frankly for the ALJ's finding of a 2 borderline intellectual functioning. Listing 12.05 deals 3 with this, and it is not met or equaled in this case because 4 there's no IQ score of less than 70 and even so, if there 5 was, plaintiff would still have to meet additional B 6 criteria, one extreme limitation or two marked limitations in 7 the domains specified. Clearly the report is from six years 8 ago, when it comes to IQ, the POMS, and specifically DI 9 24583.055, suggests that IQ scores stabilize after age 16 and 10 are generally considered current at that time. This report 11 was prepared when plaintiff I believe was 18 years of age, so 12 the -- it still would be an accurate reflection of 13 plaintiff's IQ. 14 Can't say the same, however, with regard to 15 achievement. Achievement can fluctuate and vary over a 16 period of six years. The achievement scores in my view 17 cannot be substituted for IQ scores to determine if plaintiff 18 meets or equals a listing, and specifically Listing 12.05. 19 There's clearly scores related to low reading ability and 20 spelling ability but it doesn't necessarily translate to an 21 inability to remember and apply information. Plaintiff's 22 case -- and arguing otherwise is distinguishable. Plaintiff 23 relies on F.S. v. Astrue, 2012 WL 514944 from the Northern 24 District of New York, February 15, 2012, that's a childhood 25 disability case and in a childhood disability, it would be 1 appropriate to analyze whether there's functional 2 equivalence. This is not a childhood disability case, 3 however. And even if it could be considered that the 4 achievement test scores, the regulations show that it is not 5 necessarily dispositive, but instead those scores would have 6 to be interpreted in light of all evidence of plaintiff's 7 actual level of functioning. 8 However, the matter is complicated by consideration 9 of SSR 11-2p. Under that, plaintiff is defined as a young 10 adult, and it requires consideration of evidence, including 11 from medical and nonmedical sources. The ruling specifically 12 provides that evidence from other sources who are not medical 13 sources but who know and have contact with the young adult 14 can also help us evaluate the severity and impact of a young 15 adult's impairments. Those sources include family members, 16 educational personnel, for example, teachers and counselors, 17 public and private social welfare agency personnel, and 18 others. I believe under SSR 11-2p, the opinion of Ms. Cass 19 and also Ms. Mantey should have been considered and it was 20 error not to consider them. I think that trumps the argument 21 that because of its age and it was outside the relevant 22 period, Ms. Cass' opinion, for example, need not be 23 addressed. I think the better practice would have been to 24 address them both. 25 The last issue is the DOT conflict. The vocational 1 expert only identified, when asked about a conflict with the 2 DOT, the off-task, absenteeism, and contact with people and 3 not depending on other persons, not address -- as not being 4 addressed by the DOT, that's at page 64. Clearly, if there 5 is a conflict, then SSR 00-04p requires the administrative 6 law judge to examine the conflict. That is supported by 7 Lockwood v. Commissioner of Social Security Administration, 8 914 F.3d 87 from the Second Circuit, 2019. The Second 9 Circuit in that decision noted the ruling mandates that 10 whenever the -- a vocational ruling -- I'm sorry, the ruling 11 mandates that whenever the Commissioner intends to rely on a 12 vocational expert's testimony, he must identify and inquire 13 into all those areas where the expert's testimony seems to 14 conflict with the Dictionary. In other words, the ruling 15 requires the Commissioner to obtain a reasonable explanation 16 for any apparent, even if nonobvious, conflict, between the 17 Dictionary and a vocational expert's testimony. It goes on 18 to say the importance of teasing out such details is 19 precisely why the Commissioner bears an affirmative 20 responsibility to ask about any possible conflict between the 21 vocational expert's evidence and the information provided in 22 the Dictionary, citing SSR 00-4p. Absent such an inquiry, 23 the Commissioner lacks substantial basis for concluding that 24 no such conflict in fact exists. And of course this must be 25 considered against the backdrop that at step five, it is the 1 Commissioner who bears the burden of proof. 2 There are three positions identified. One is 3 cleaner, industrial. For a language level, DOT 381.687-018 4 requires the following: Reading, passive vocabulary of 5,000 5 to 6,000 words, read at rate of 190 to 215 words per minute, 6 read adventure stories and comic books, looking up unfamiliar 7 words in dictionary for meaning, spelling, and pronunciation, 8 read instructions for assembling model cars and airplanes. 9 The second position identified as packager/hand is 10 the subject of Dictionary of Occupational Titles 920.587-018, 11 it provides for a reasoning level of 2, apply common sense 12 understanding to carry out detailed but uninvolved written or 13 oral instructions, deal with problems involving a few 14 concrete variables in or from standardized situations, and 15 for reading, language level, reading, recognize meaning of 16 2500 two- or three-syllable words, reading rate of 95 to 120 17 words per minute, compare similarities and differences 18 between words and between series of numbers. 19 The third is laborer, stores, it is subject of DOT 20 922.687-058 and for language, it requires reading, recognize 21 between -- meaning of 2500 two- or three-syllable words, read 22 at a rate of 95 to 120 words per minute, compare similarities 23 and differences between words and between series of numbers. 24 For writing, it requires, print sample sentences containing 25 subject, verb, and object and series of numbers, names, and 1 addresses. 2 In my view, since this is not addressed and it's 3 unclear whether plaintiff can meet these requirements, the 4 administrative law judge was required to further examine the 5 vocational expert and the failure to do that, again, 6 constituted legal error. 7 So for all the reasons indicated, I believe there 8 are multiple errors in this case and that judgment on the 9 pleadings should be granted to the plaintiff. I do not find 10 persuasive evidence of disability but I think this frankly 11 should be looked at by a fresh set of eyes and I understand 12 the Commissioner's regulations to require that after an 13 administrative law judge has seen a matter twice, it will be 14 reassigned to another administrative law judge which I think 15 is a good idea in this case. So I will grant judgment on the 16 pleadings to the plaintiff and vacate the Commissioner's 17 determination, remand the matter for further proceedings. 18 Thank you both for excellent presentations last week. Have a 19 great day. 20 MR. GOLDSTEIN: You too, thank you. 21 MS. COHN: Thank you. 22 (Proceedings Adjourned, 2:38 p.m.) 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 9th day of May, 2023. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25