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

ISMIR T.,

Plaintiff, v. Civil Action No. 5:19-CV-0445 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF:

OLINSKY LAW OFFICE HOWARD D. OLINSKY, ESQ. 250 South Clinton St. MELISSA A. PALMER, ESQ. Suite 210 Syracuse, NY 13202

FOR DEFENDANT:

HON. ANTOINETTE L. BACON CHRISTOPHER L. POTTER, ESQ. United States Attorney for the Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

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 Acting Commissioner of Social Security, pursuant to 42 U.S.C. ' 405(g), are cross-motions for judgment on the pleadings.1 Oral argument was

conducted in connection with those motions on September 22, 2020, 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 reference, it is hereby

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. 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, for further proceedings consistent with the attached transcript. 4) The clerk is directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of

(g) and closing this case.

David E. Peebles U.S. Magistrate Judge Dated: September 30, 2020 Syracuse, New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x ISMIR T.,

Plaintiff,

vs. 5:19-CV-445

COMMISSIONER OF SOCIAL SECURITY, Defendant. -------------------------------------------------------x DECISION - September 22, 2020 HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: OLINSKY LAW GROUP Attorneys at Law 250 South Clinton Street Syracuse, New York 13202 BY: MELISSA A. PALMER, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 15 New Sudbury Street Boston, MA 02203 BY: CHRISTOPHER POTTER, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: All right. I'll have to let that be 2 the last word. Let me begin by thanking counsel for 3 excellent and spirited presentations. I found this to be an 4 interesting and extremely challenging case because of the 5 unique circumstances surrounding plaintiff's background. 6 This is an action brought pursuant to 42, United 7 States Code, Section 405(g) to challenge an adverse 8 determination by the Commissioner of Social Security finding 9 that plaintiff was not disabled at the relevant times and, 10 therefore, ineligible for the disability insurance benefits 11 sought. 12 Plaintiff was born in January of 1973 and is 13 currently 47 years old. He was 43 years of age at the time 14 of the alleged onset of disability in January of 2016. 15 Plaintiff stands 5-foot 6-inches in height and weighs 16 somewhere between 195 and 207 pounds. 17 Plaintiff was originally from Bosnia and emigrated 18 to the United States in 1997. Plaintiff's living 19 arrangements are somewhat unclear. He appears to live in 20 Liverpool, and the evidence is equivocal as to whether he is 21 living with a girlfriend, significant other, or wife. In any 22 event, he also lives with two children who at the time of the 23 hearing in this matter were 16 and 10 years of age and were 24 17 and 11 in October of 2017. 25 Plaintiff has a twelfth grade education, which he 1 underwent in Bosnia. He did not contend that he attended any 2 special education classes while in school. Plaintiff drives. 3 The evidence is somewhat equivocal on the issue of reading, 4 writing, speaking, and understanding English. At page 270 5 plaintiff asserted that he speaks and understands English. 6 The record reflects, however, that he has needed the 7 assistance of an interpreter at both the hearing and in 8 appointments with some of his health care providers, 9 including at page, for example, 378. Dr. Rashid stated at 10 page 441 that plaintiff cannot learn to speak or read 11 English. 12 Plaintiff is right-handed. Plaintiff has worked 13 since the alleged onset of his disability on January 28, 14 2016, although not at substantial gainful activity levels. 15 While employed he has worked in various cleaning and 16 custodial positions, including as a church cleaner and a 17 college custodian at Onondaga Community College, or OCC. 18 Those were both part-time positions. He also worked at 19 Colonial Laundromat. The evidence appears to suggest that he 20 had the assistance of job coaches at least at the Colonial 21 Laundromat and OCC positions. Plaintiff was let go from his 22 position at OCC based on an incident where he was harassed 23 and had difficulty with fellow employees in 2017. 24 On the issue of work, I note that plaintiff did 25 tell Dr. Shapiro, the examining psychologist, that he could 1 work full time at an easy job. That appears at page 522 of 2 the Administrative Transcript. 3 Physically, plaintiff suffered a traumatic brain 4 injury in March of 1994 when he was shot in the right 5 temporal region of his head, that appears at page 343, 6 resulting in his being in a coma for some extended period of 7 time. He also has a history of seizure disorders, although 8 he stated at 528 his last seizure was in 2010. Those seizure 9 disorders have occurred since 1995, according to 344 of the 10 Administrative Transcript. Plaintiff suffers from right arm 11 pain, but there is no finding of rotator cuff or labral tear. 12 He also experiences numbness in his fingers. He suffers from 13 adhesive capsulitis, that appears at page 466 of the 14 Administrative Transcript, as well as cervical radicular 15 pain, trapezial muscle spasms, and headaches. 16 Mentally, plaintiff has been found to suffer from 17 post-traumatic stress disorder, PTSD, major depressive 18 disorder, anxiety, also characterized as general anxiety 19 disorder. He appears to have anger issues. As described by 20 Dr. Shapiro at 524, his mood was irritable. He was admitted 21 to a CPEP in July of 2017. He was escorted there by the 22 police where he was treated and released. 23 In terms of health care providers, plaintiff sees 24 Dr. Andrew Hathaway for his primary needs; Dr. Ijaz Rashid, a 25 neurologist, who he has seen since March of 2015. Prior to 1 that he saw a neurologist named Dr. Ma at Crouse Hospital, 2 although there are no records from Dr. Ma. Dr. Brett Greenky 3 has seen the plaintiff for his shoulder condition beginning 4 in November of 2017 and has administered at least two 5 Depo-Medrol injections, including at page 463 and 469 6 reference. Dr. Greenky also referred plaintiff to physical 7 therapy, although there are no records in the Administrative 8 Transcript showing that he did actually go to physical 9 therapy. 10 In terms of his mental health needs, plaintiff 11 treated at Psychological Health Care with Dr. Panayotis 12 Petrou in 2016. Since July of 2017 he has treated at the 13 St. Joseph's Hospital Health Center. His treatment there was 14 overseen by Dr. Narayana Reddy. He saw their Licensed Mental 15 Health Counselor James Amodio, as well as Nurse Practitioner 16 Shannon Spina, and Licensed Clinical Social Worker Sara 17 Freer. 18 Plaintiff has been prescribed various medications, 19 including Venlafaxine or Effexor, Tegretol or Carbamazepine, 20 Metformin, Lisinopril, Simvastatin, Zoloft, and Trazodone, as 21 well as Topamax and Percocet, Naproxen, and Nabumetone, also 22 known as Relafen. Plaintiff has never smoked. 23 In terms of activities of daily living, plaintiff 24 is capable of showering, bathing, dressing, he claims he 25 needs assistance with. He exercises, spends time with 1 children, can mow his lawn. He does not shop. He walks his 2 dog and uses the computer. 3 Procedurally, plaintiff applied for Title II 4 benefits on March 21, 2016, alleging a disability onset date 5 of January 28, 2016. In support of his claim for benefits, 6 plaintiff alleges that he suffers from left hand and left leg 7 paralysis due to shot in the head, Type 2 diabetes, severe 8 headaches, memory loss, depression, nightmares and epilepsy. 9 That appears at 271 of the Administrative Transcript. 10 A hearing was conducted by Administrative Law 11 Judge, or ALJ, Laureen Penn on April 16, 2018 to address 12 plaintiff's claim for benefits. Plaintiff was represented by 13 counsel other than the attorney now representing him. During 14 that hearing the vocational expert also appeared and 15 testified at the hearing, and a translator was present. 16 On May 25, 2018, Administrative Law Judge Penn 17 issued an unfavorable decision which became the final 18 determination of the Agency. On February 15, 2019, when the 19 Social Security Administration Appeals Council denied 20 plaintiff's request for review of the Administrative Law 21 Judge's decision, the Administrative Law Judge did review new 22 evidence admitted on behalf of the plaintiff but found no 23 reasonable probability that the new evidence would have 24 changed the outcome. 25 This action was commenced on April 15, 2019, and is 1 timely. In her decision, ALJ Penn applied the familiar 2 five-step sequential test for determining disability. She 3 first observed that plaintiff was last insured in December of 4 2020. She then concluded at step one that claimant has not 5 engaged in substantial gainful activity since January 28, 6 2016, though noting, as I indicated previously, that he has 7 worked part time since that date but nothing close to SGA 8 level. 9 At step two, the Administrative Law Judge Penn 10 concluded that plaintiff suffers from severe impairments that 11 impose more than minimal limitations on his ability to 12 perform basic work functions, including generalized 13 idiopathic epilepsy, post-traumatic seizures, traumatic brain 14 injury, cerebrovascular disease, tension headaches, left foot 15 drop, unspecified acquired deformity of limb, generalized 16 anxiety disorder, insomnia, major depressive disorder, 17 adjustment disorder with depressed mood, and post-traumatic 18 stress disorder. 19 At step three, the Administrative Law Judge found 20 that none of those impairments either singly or in 21 combination meets or equals any of the listed presumptively 22 disabling conditions set forth in the Commissioner's 23 regulations, specifically considering listings 11.02, 1.02, 24 11.18, 12.02, 12.04, 12.06, and 12.15. 25 The Administrative Law Judge next concluded that 1 notwithstanding his impairments, plaintiff retains the 2 residual functional capacity to perform light work, except 3 with respect to physical limitations, he can occasionally 4 stoop, crouch, kneel, crawl, can occasionally climb stairs 5 and ramps, but cannot climb ladders, ropes, or scaffold. He 6 can occasionally finger and handle with the left upper 7 extremity, which is the non-dominant hand. He can 8 occasionally reach overhead with the right upper extremity, 9 which is the dominant hand. 10 With regard to mental limitations, ALJ Penn found 11 that plaintiff can perform simple, routine, repetitive work, 12 he can occasionally interact with supervisors, co-workers, 13 and the public, but cannot perform teamwork, and he cannot 14 provide direct customer service. Applying that residual 15 functional capacity, ALJ Penn concluded at step four the 16 plaintiff is incapable of performing past relevant work, 17 which with the assistance of a vocational expert was 18 characterized as a janitor, which is generally considered 19 heavy exertion with an SVP level of two. 20 The Administrative Law Judge at step five concluded 21 that there is conflicting evidence with regard to plaintiff's 22 ability to communicate in English, but made the following 23 finding: The claimant has at least a high school education 24 and is able to communicate in English. That appears at 25 page 57 of the Administrative Transcript. 1 The Administrative Law Judge noted that if 2 plaintiff is capable of performing the full range of light 3 work, a finding of no disability would be directed by 4 Medical-Vocational Guideline, or Grid, 202.20. Based on the 5 testimony of the vocational expert who was posed a 6 hypothetical question, the Administrative Law Judge concluded 7 that plaintiff is capable of performing as a conveyor line 8 worker, machine tender, and fruit distributor, 9 notwithstanding the additional non-exertional limitations set 10 forth in the RFC, and concluded that there was sufficient 11 numbers of jobs in those categories nationally that plaintiff 12 was capable of making a successful adjustment. 13 The function of the Court at this point is to 14 determine whether correct legal principles were applied and 15 result in the determination supported by substantial 16 evidence. It is an extremely deferential standard. Relevant 17 evidence means such -- substantial evidence means such 18 relevant evidence as a reasonable mind might accept as 19 adequate to support a conclusion. The Second Circuit Court 20 of Appeals noted in Brault versus Social Security 21 Administration,

, the substantial evidence 22 standard means once the fact is found by an Administrative 23 Law Judge, that fact can be rejected only if a reasonable 24 factfinder would have to conclude otherwise. 25 The plaintiff in this case raises essentially three 1 contentions. First, he maintains that the physical 2 components of the residual functional capacity are not 3 supported by any medical opinion. Second, the plaintiff 4 claims that the mental residual functional capacity is not 5 supported, and specifically the finding that plaintiff is 6 able to learn new tasks. And third, he challenges the 7 findings regarding his education and his ability to 8 communicate in English as not supported. 9 The function, of course, of the Administrative Law 10 Judge in the first instance and pivotal to her determination 11 is the crafting of a residual functional capacity, or RFC. 12 Applying the RFC represents a finding of the range of tasks 13 he is capable of performing notwithstanding his impairments. 14 An RFC is formed by consideration of all relevant medical and 15 other evidence. To properly ascertain a plaintiff's RFC, an 16 ALJ must assess plaintiff's exertional capability, such as 17 his ability to sit, stand, walk, lift, carry, push, and pull. 18 He must also take into consideration non-exertional 19 limitations or impairments. The resulting RFC determination, 20 of course, must be supported by substantial evidence. 21 In this case the determination was that plaintiff 22 can perform light work with additional limitations. As I 23 noted above, light work as defined in 20 CFR 404.1567(b) 24 involves lifting no more than 20 pounds at a time with 25 frequent lifting or carrying of objects weighing up to 1 10 pounds. The regulation notes that even though the weight 2 lifted may be very little, a job is in this category when it 3 requires a good deal of walking or standing, or when it 4 involves sitting most of the time with some pushing and 5 pulling of arm or leg controls. To be considered capable of 6 performing a full or wide range of light work, he must have 7 the ability to do substantially all of these activities. In 8 this case I note that through step four it is plaintiff's 9 burden under Poupore to establish not only his impairments 10 but, more critically, the resulting limitations on his 11 ability to perform basic work functions. 12 Turning first to the physical residual functional 13 capacity, there is indeed in this case a physical medical 14 opinion that speaks to plaintiff's ability to perform 15 physical functions; it is the consultative examination report 16 of Dr. Kalyani Ganesh. It appears at page 528 to 531 of the 17 Administrative Transcript. In her report Dr. Ganesh finds 18 that plaintiff suffers from no gross physical limitations 19 noted. The Administrative Law Judge discussed Dr. Ganesh's 20 findings and did determine based on treatment records and 21 Dr. Ganesh's objective findings that the plaintiff suffers 22 from additional impairments or limitations, including the 23 history of mild to moderate weakness and foot drop. That's 24 at page 56. 25 And so the determination was given only -- the 1 opinion was given only some weight. Nonetheless, there is 2 case law that suggests that Dr. Ganesh's opinion did provide 3 substantial evidence and it was proper for the Administrative 4 Law Judge to include additional limitations based upon the 5 medical evidence and treatment notes in the record. So I do 6 not find error in this regard. 7 The cases cited by the Commissioner support this 8 proposition, including Gonzalez versus Colvin,

1040250, from the Western District of New York 2018, as well 10 as Hall versus Astrue,

, from the Eastern 11 District of New York 2009, and Durante, which is

4852881, from the District of Connecticut 2014. And I note 13 in that regard, Durante, it was also the report of Agency 14 reviewing physicians at issue in this case. 15 The Administrative Law Judge properly considered 16 Dr. Greenky's notes, even though it appears that the shoulder 17 condition being addressed was temporary and found critically 18 that the plaintiff should be limited in reaching with his 19 right overhead dominant extremity, at 55. I don't find any 20 gap in the record because the consultative examiner opinion 21 can provide substantial evidence based on Gonzales, which I 22 already cited. If there is sufficient evidence to permit a 23 residual functional capacity finding, a medical source 24 statement is not required. Second Circuit decision in Monroe 25 versus Commissioner of Social Security,

from 1 2017 makes that observation. In this case I find that the 2 physical portion of the residual functional capacity is 3 supported by substantial evidence, including the opinions of 4 Dr. Ganesh and treatment notes from Dr. Greenky and other 5 providers. 6 The issue of learning new tasks presents an 7 interesting case. The positions that were dealt with are 8 unskilled, and under 20 CFR Section 404.1568 that was in 9 effect at the relevant time, unskilled work is defined as 10 "work which needs little or no judgment to do simple duties 11 that can be learned on the job in a short period of time." 12 In this case, of course, as I indicated, the residual 13 functional capacity concludes that plaintiff can do work that 14 can be learned through observation or verbal instructions. 15 In this case there are a couple of opinions that 16 speak to learning new tasks. Dr. Shapiro at page 525 finds 17 that plaintiff appears to have mild to moderate limitations 18 regarding his ability to learn new tasks. Dr. Petrou at 19 page 435 and 436 from October 2016 indicates that plaintiff 20 has not been able to learn English despite attending refugee 21 school for two plus years, and the following page, can 22 understand English better than he can speak it, which is very 23 limited. And work ability estimate in the fair region 24 according to Dr. Petrou. 25 Dr. Rashid in a May 2017 determination, or opinion 1 I should say, concluded that this patient has multiple 2 disabilities that prevent him from learning, speaking and 3 reading English. That is at page 441 of the Administrative 4 Transcript. The Administrative Law Judge, interestingly, 5 focused on that opinion and it was unclear to me what she was 6 suggesting. On page 55 she states that although the form is 7 apparently signed by Dr. Rashid, the form contains spelling 8 and grammatical errors, including referring to being in a 9 coma as a comma, and do to, D-O T-O, rather than due to, 10 D-U-E T-O. I don't know quite what she is suggesting other 11 than it appears she may be alleging that this is a forged 12 document. It certainly appears to be significantly detailed 13 that I would question that, but in any event, there is no 14 other reason given for rejecting it or minimizing it. She 15 goes on to state, "Furthermore, this statement is 16 inconsistent with other statements indicating that plaintiff 17 could speak some, although limited, English and understood 18 more." And there are citations to the record. 19 The evidence, as I indicated during oral argument, 20 is equivocal concerning plaintiff's ability to speak English; 21 page 270 he indicates he can; page 394, 401 and 436 22 suggesting he may be able to. He underwent a 45 minute 23 session with Sara Freer in English on March 13, 2018 without 24 the benefit of a translator. That's at pages 92 through 94. 25 Dr. Shapiro's objective findings show intact memory. 1 Plaintiff admitted to Dr. Shapiro that he can perform an easy 2 job. That's at 522. There is a finding, as I indicated, by 3 Administrative Law Judge Penn as follows, "The claimant has 4 at least a high school education and is able to communicate 5 in English." That's at page 57. Under Brault that finding 6 cannot be rejected unless no reasonable factfinder could 7 conclude otherwise. 8 I note also that the three jobs in question were 9 all listed as unskilled work, as I indicated. The real 10 problem I have with this is the question of education and 11 literacy. The vocational expert does not appear to have been 12 on the telephone during the entire hearing, but, in any 13 event, the hypothetical given to the vocational expert at 14 page 82 requires the expert to assume a person who is the 15 same age, education, and past work as the claimant. There is 16 no indication, though, that the vocational expert understood 17 that plaintiff was educated in Bosnia in a foreign language 18 and had limited ability to read and understand English. 19 Clearly he has been in the United States since 1997 and 20 worked in several settings; however, it's unclear what his 21 capabilities are. 22 The case is somewhat similar to the decision in 23 Durakovic versus Commissioner of Social Security,

4039372, a decision from this court in 2018 where it was also 25 argued that plaintiff could not communicate in English. In 1 that case the ALJ broadly discussed plaintiff's ability to 2 communicate in English, but failed to set forth with 3 sufficient specificity whether or not plaintiff was literate. 4 The Court went on to state, "It is unclear from the ALJ's 5 written decision, or from her hypothetical at the hearing, 6 whether plaintiff was literate and/or whether plaintiff could 7 communicate in English." 8 The hypothetical that was given to the vocational 9 expert is obviously pivotal to the finding of no disability 10 in this case. In this case I don't think the hypothetical 11 was sufficiently precise on plaintiff's education and his 12 ability to communicate in English, and so I do not find that 13 the Commissioner's determination is supported by substantial 14 evidence. I think rather that the determination should be 15 vacated and the matter remanded so that there can be specific 16 findings with regard to these issues and that a vocational 17 expert could be asked to opine based on those specific 18 findings whether there is available work in the national 19 economy that plaintiff is capable of performing. 20 I do not find persuasive evidence of disability, 21 and so I am not going to direct a finding of disability, but 22 rather vacate the determination and remand the matter for 23 further consideration. 24 Thank you both for excellent presentations and I 25 hope you stay safe. CERTIFICATION

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

Leen WeDeneragh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter