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

BAHAR M.,

Plaintiff, v. Civil Action No. 6:19-CV-1471 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LEGAL AID SOCIETY OF ELIZABETH V. KRUPER, ESQ. OF MID-NEW YORK, INC. 221 S. Warren St., Suite 310 Syracuse, NY 13202

FOR DEFENDANT

HON. ANTOINETTE BACON LUIS PERE, ESQ. Acting United States Attorney Special Assistant U.S. Attorney for the 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 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 February 11, 2021, 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 ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED.

2) The Commissioner=s determination that plaintiff was not

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. 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

(g) and closing this case.

U.S. Magistrate Judge

Dated: February 18, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x BAHAR M., Plaintiff, -v- 6:19-CV-1471 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES February 11, 2021 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LEGAL AID SOCIETY OF MID-NEW YORK, INC. 221 South Warren Street Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. KRUPAR, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: LUIS PERE, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all counsel present by telephone. 2 Time noted: 11:24 a.m.) 3 THE COURT: Let me begin by thanking counsel for 4 excellent presentations. The issues raised in this case are 5 interesting and slightly different from some that the Court 6 faces in these types of challenges.

7 I have before me a challenge by the plaintiff to the 8 determination of the Commissioner of Social Security that 9 plaintiff was not disabled at the relevant times and therefore 10 ineligible for the benefits sought. The challenge is brought 11 pursuant to

(g) and 1383(c). 12 The background is as follows: Plaintiff was born in 13 July of 1967. She is currently 53 years of age. She stands 14 5'1" -- between 5'1" and 5'4" in height depending upon the point 15 in the Administrative Transcript that you refer to, and has 16 weighed at various times between 154 to 165 pounds. Plaintiff 17 is divorced and lives in an apartment in Utica, New York with a 18 daughter who is now 18 years of age. 19 Plaintiff attended regular classes while in school 20 and has four years of college education all in Iraq. Plaintiff 21 is currently attending Mohawk Valley Community College and

22 pursuing a criminal justice Associate's degree. She reports she 23 receives As and Bs. She attends class one hour per day Monday, 24 Wednesday, and Friday and three hours on Tuesdays and Thursdays. 25 Plaintiff is right-handed. She has a driver's license, but 1 testified that she only drives on a limited basis. It appears 2 that she has been involved in more than one motor vehicle 3 accident. Plaintiff is able to take public transportation. 4 Plaintiff last worked in June of 2014, although her 5 last significant work was in 2012. While working, she served as 6 an interpreter for the United States Army interpreting primarily

7 conversations and oral statements into English or from English 8 to Arabic. She also was a news television employee in Iraq. 9 After coming to the United States, she worked from 2010 to 2012 10 in Austin, Texas at a Goodwill location as a clothes sorter. 11 She has also been a substitute teacher. 12 Plaintiff suffers from several physical impairments 13 including migraines, neck pain, lower back pain, leg pain, a 14 foot issue, hypertension, carpal tunnel syndrome of the left 15 hand -- although she has refused surgery for that condition -- a 16 left shoulder issue which surgery has been postponed for, and a 17 loss of high frequency hearing based upon testing that occurred 18 in January of 2018. 19 Mentally, she suffers from major depressive disorder 20 without psychotic features, anxiety, and depression. She has no 21 hospitalization or significant mental health treatment.

22 Plaintiff's primary treatment provider, at least since March of 23 2014, is Dr. Naji El-Khoury. For her foot issues, she has seen 24 Dr. Lev Goldiner and Christopher Powers. She has seen 25 Physician's Assistant Heidi Roloson. She had a benign cyst 1 removed in May of 2016 by Dr. Dennis Blom. She has seen Dr. 2 Ahmed Shatla, a neurologist. Since June of 2013, she has seen 3 Dr. Deep Bharaj and Dr. John Sullivan. 4 Plaintiff's activities of daily living include the 5 ability to groom, dress, bathe, shop with her daughter, wash 6 dishes, do some cooking. She likes to read and watch

7 television. 8 Plaintiff has been prescribed various medications 9 including Cyclobenzaprine, Morphine, Naproxen, Paroxetine, 10 Topamax, Neurontin, Flexeril, Verapamil, Omeprazole, Paxil, 11 Cymbalta, and Imitrex. And I omitted when I -- oh, I did say 12 migraines. I'm sorry. 13 Procedurally, plaintiff applied for Title XVI 14 benefits in August of 2015 alleging an onset date of June 1, 15 2012, and claiming disability based on migraines, a left 16 shoulder injury, and a disc in the neck injury. A hearing was 17 conducted on September 14, 2017, by Administrative Law Judge 18 Roxanne Fuller. That came after two prior hearing dates, both 19 of which were adjourned in order to permit plaintiff to obtain 20 representation. ALJ Fuller issued a partially favorable 21 decision on November 28, 2017, finding that plaintiff was

22 disabled effective when she turned 50 on July -- in July of 2017 23 pursuant to Medical Vocational Guideline or Grid Rule 201.14. 24 On January 16, 2018, the Social Security Administration Appeals 25 Council issued a notice that it had reviewed, or was reviewing, 1 the determination. On May 3, 2018, the Appeals Council issued 2 an order of remand with directions to address several issues 3 that were found to be deficient in the Administrative Law 4 Judge's determination. A subsequent hearing was conducted on 5 October 11, 2018, by Administrative Law Judge Jennifer Gale 6 Smith. The ALJ issued a fully unfavorable decision on

7 November 26, 2018. That became a final determination of the 8 agency on October 17, 2019, when the Appeals Council denied 9 plaintiff's application for a review. This action was commenced 10 on November 25, 2019, and is timely. 11 In her decision, the Administrative Law Judge applied 12 the familiar five-step sequential test for determining 13 disability. She found initially that plaintiff had not engaged 14 in substantial gainful activity since the date of her 15 application on August 24, 2015. 16 At step two, she concluded that plaintiff suffers 17 from severe impairments that impose more than minimal 18 limitations on her ability to perform work functions, including 19 cervical spine disorder, lumbar spine disorder, bilateral 20 shoulder disorder, plantar fasciitis, left carpal tunnel 21 disorder, left knee disorder, migraine headaches, depressive

22 disorder, and anxiety disorder. 23 At step three, Administrative Law Judge Smith 24 concluded that plaintiff's conditions do not meet or medically 25 equal any of the listed presumptively disabling conditions set 1 forth in the Commissioner's regulations, specifically 2 considering listings 1.02, 1.04, 11.14, 12.04, and 12.06. 3 ALJ Smith next concluded that plaintiff retains the 4 residual functional capacity, or RFC, to perform sedentary work 5 with additional limitations addressing both her physical and her 6 mental impairments. When it comes to hearing, which was one of

7 the key issues raised by the plaintiff in this case, the 8 residual functional capacity provides, quote, the claimant can 9 tolerate no more than moderate levels of noise as defined in 10 Appendix D of the Selected Characteristics of Occupations, 1993 11 edition, closed quote. 12 At step four, the Administrative Law Judge concluded 13 that plaintiff is capable of performing her past relevant work 14 as an interpreter/translator pursuant to testimony given by the 15 vocational expert and, therefore, concluded that plaintiff was 16 not disabled and found no need to proceed to step five of the 17 sequential analysis. 18 The Court's function in this case is to determine 19 whether correct legal principles were applied and the resulting 20 determination is supported by substantial evidence, which is 21 defined as such relevant evidence as a reasonable mind would

22 accept to support a conclusion. The Second Circuit Court of 23 Appeals noted that this is a stringent test, it is highly 24 deferential. That was noted in many cases, including Brault v. 25 Social Security Administration Commissioner,

, from 1 2012. 2 The plaintiff has raised four basic contentions in 3 support of her challenge to the Commissioner's determination, 4 the first is the failure to reference and accommodate her 5 hearing impairment, and woven into that or subsumed into that is 6 the contention that the vocational expert and the ALJ both used

7 incorrect DOT information and mischaracterized the nature of her 8 prior work as an interpreter/translator; secondly, the plaintiff 9 contends that the treating source rule was violated and that Dr. 10 El-Khoury's opinions were not properly weighed and given 11 controlling weight in this case; the third argument is that 12 plaintiff's subjective complaints were improperly evaluated, 13 what we previously referred to as the credibility analysis; and 14 fourth, she contends there was a conflict in the vocational 15 expert's testimony between the testimony and the Dictionary of 16 Occupational Titles that went unresolved and therefore requires 17 a remand. 18 Addressing the first argument, the hearing loss 19 argument, on January 11, 2018, a hearing test was conducted. It 20 was found that there was a moderate to profound high frequency 21 sensorineural loss. The results appear at 1124 to 1125 of the

22 Administrative Transcript. The notation also is that plaintiff 23 qualifies for bilateral hearing aids. The Administrative Law 24 Judge did not discuss or refer to the hearing result. As the 25 Commissioner argues, clearly there is no duty to discuss every 1 piece of evidence and it is also true that it is plaintiff's 2 burden to show limitations and it is -- it is not sufficient to 3 show a diagnosed impairment to carry that burden. 4 It is clear to the Court that the vocational expert 5 and the Administrative Law Judge did misclassify plaintiff's 6 prior job. From the testimony of what she did, it appears clear

7 that it should have been analyzed under DOT 137.267-010, 8 entitled interpreter. The description of that position states, 9 in relevant part, translates spoken passages from one language 10 into another. From the testimony, it's relatively clear that 11 this is exactly what the plaintiff did in her prior work in Iraq 12 for the United States Army. Significantly, that DOT section, 13 when it addresses hearing, states, constant-exists two-thirds or 14 more of the time. 15 So in plaintiff's position, one of the four elements 16 would appear to be the ability to hear and to be able to 17 translate spoken words. In the Court's view, I understand 18 defendant's argument that plaintiff initially did not claim 19 hearing loss as -- either initially or in her hearing as a basis 20 for disability, and I also agree that there are -- many, many 21 treatment notes from Dr. El-Khoury finding no hearing loss,

22 including one from July of 2018 which postdates the hearing 23 test. Nonetheless, in my view, the Administrative Law Judge 24 should have discussed this and should have explained why there 25 was no limitation in the residual functional capacity and 1 present it to a vocational expert as to whether this would 2 impair the plaintiff's ability to perform her past relevant 3 work. 4 I understand the argument that the limitation to 5 moderate levels of noise addresses this, but I don't accept it. 6 I don't see how moderate levels of noise is sufficient to

7 address a hearing loss and a potential inability to perform the 8 past relevant work as a interpreter, so I do find error at the 9 step four determination that plaintiff is capable of performing 10 her past relevant work, and the failure to address and discuss 11 the hearing loss reflected in the January 2018 testing, and so I 12 am going to vacate the Commissioner's determination and order a 13 remand to address this specific issue, including whether 14 additional testing and/or a consultative expert opinion should 15 be elicited. 16 And I will add that although I don't foreclose the 17 submission of the Equal Access to Justice Act petition for fees, 18 I would in all likelihood find that the Commissioner's position 19 in this case was substantially justified. I found it to be a 20 very close case and I went back and forth, candidly, with regard 21 to this issue, but in the end, I think it is so central -- the

22 ability to hear is so central to the job that the plaintiff 23 performed and it was the -- was pivotal to the finding of no 24 disability that I think the hearing test should have been 25 discussed and potentially a limitation in the residual 1 functional capacity should have resulted, so I will grant 2 judgment on the pleadings to the plaintiff. I don't find any 3 persuasive evidence of disability and so the remand will be 4 without a directed finding of disability. 5 As previously stated, thank you both for excellent 6 presentations and I hope you stay safe in this challenging

7 environment. 8 MS. KRUPER: Thank you, your Honor. 9 MR. PERE: Thank you, your Honor. 10 (Time noted: 11:41 a.m.) 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25 1 2 3 CERTIFICATE OF OFFICIAL REPORTER 4 5 6 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR,

7 NYRCR, Official U.S. Court Reporter, in and for the United 8 States District Court for the Northern District of New York, DO 9 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 10 States Code, that the foregoing is a true and correct transcript 11 of the stenographically reported proceedings held in the 12 above-entitled matter and that the transcript page format is in 13 conformance with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 16th day of February, 2021. 17 18 s/ Hannah F. Cavanaugh__________________________ 19 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 20 Official U.S. Court Reporter 21 22

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