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

TERRI M. D.,

Plaintiff, v. Civil Action No. 1:24-CV-801 (DEP)

COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DENNIS KENNY LAW JOSEPHINE GOTTESMAN, ESQ. 288 North Plank Road Newburgh, NY 12550

FOR DEFENDANT

SOCIAL SECURITY ADMIN. KRISTINA D. 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

(g), are cross-motions for judgment on the pleadings.1

Oral argument was conducted in connection with those motions on August 7, 2025, 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 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. 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: August 14, 2025 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x TERRI D., Plaintiff, -v- 24-CV-801 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES August 7, 2025 100 South Clinton Street, Syracuse, NY 13261 For the Plaintiff: DENNIS KENNY LAW 288 North Plank Road Newburgh, New York 12550 BY: JOSEPHINE GOTTESMAN, ESQ. For the Defendant: Social Security Administration Office of the General Counsel 6401 Security Boulevard Baltimore, MD 21235 BY: KRISTINA D. COHN, 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 parties present be telephone. 2 Time noted: 2:13 p.m.) 3 THE COURT: Let me begin by commending both 4 attorneys. I appreciate your spirited arguments and your 5 excellent written presentations. 6 Before I address the merits of the case, I wanted to

7 broach the subject of consent. The consent form that was filed, 8 Docket No. 7, on June 26, 2024, appears to be intended to 9 consent to the jurisdiction of a United States magistrate judge, 10 without specifying which judge, to conduct proceedings with 11 direct review to the Second Circuit Court of Appeals. 12 Unfortunately, the form that was filed is not signed and it 13 should have been rejected, but the Clerk's Office nonetheless 14 filed it. 15 So my first question to you, Attorney Gottesman, is: 16 Does your client consent to my deciding this case with direct 17 appeal to the Second Circuit Court of Appeals? 18 MS. GOTTESMAN: Yes, your Honor. 19 THE COURT: Excellent. Thank you. 20 I have before me a challenge to an adverse 21 determination by the Commissioner of Social Security finding

22 that the plaintiff was not disabled at the relevant times and 23 therefore not entitled to the benefits for which she applied. 24 The proceeding is brought pursuant to 42, United States Code, 25 Section 405(g). 1 The background is as follows: Plaintiff was born in 2 January of 1974. By my calculation, she is 51 years of age. 3 She was 46 at the alleged onset of disability on December 16, 4 2019, and 49 on the date of last insured status of March 31, 5 2023. She stands 5'6" in height and weighs approximately 140 to 6 154 pounds.

7 Plaintiff is either separated or divorced. It's 8 unclear whether the divorce actually occurred. In 2022, she was 9 at least separated. She has one child who, by my calculation, 10 is roughly 21 years of age. 11 Plaintiff has two Associate's degrees, in nursing and 12 early childhood. She attended regular classes while in school. 13 She is a Registered Nurse. Plaintiff drives. 14 Plaintiff last worked in December of 2019, although 15 at page 48, at the hearing she testified that it could have been 16 2018. When she was working, she served as a substitute school 17 bus attendant, a bakery cashier, a nurse case manager, a pre- 18 and postoperation nurse, a PACU nurse, and a nursing home nurse. 19 Plaintiff suffers physically from lupus and 20 inflammatory arthritis, lumbar degenerative disc disease, 21 trochanteric bursitis of the left hip, polyarthritis or

22 arthralgia, fibromyalgia, and chronic fatigue syndrome, and 23 undergoes infusions roughly every two weeks. 24 Mentally, she suffers from anxiety, attention deficit 25 and hyperactivity disorder, depression, panic disorder, and 1 posttraumatic stress disorder or PTSD. She was hospitalized in 2 2006, again in 2011, for suicide attempts, and in 2016 for an 3 overdose. She has a history of opioid and alcohol abuse. In 4 2017, she underwent treatment and is currently on a Suboxone 5 protocol. 6 She has a history of sexual and physical abuse in her

7 past, being the victim of it, not committing it, and she sees a 8 therapist and a psychiatrist. 9 Plaintiff is a smoker. She apparently smokes roughly 10 one half pack a day. That's at 339 and 349 of the 11 Administrative Transcript. 12 In terms of activities of daily living, plaintiff is 13 able to dress, bathe, groom, cook, clean, do laundry, shop, 14 drive, and take public transportation. She gardens and takes 15 care of her flowers. She engages in some socialization. She 16 watches TV, listens to the radio, and reads. 17 Procedurally, plaintiff applied for Title II benefits 18 on January 16, 2020, alleging an onset date of December 16, 19 2019. At page 270, she alleged disability based on lupus, 20 anxiety, depression, ADHD, PTSD, bilateral hips, bilateral feet, 21 Lyme disease, and neuropathy.

22 A hearing was conducted on May 16, 2023, by 23 Administrative Law Judge Davida Isaacs with a vocational expert 24 also testifying. On August 10, 2023, the Administrative Law 25 Judge issued an unfavorable decision, which became a final 1 determination of the agency on April 24, 2024, when the Social 2 Security Administration Appeals Council denied plaintiff's 3 application for review. This action was commenced on June 21, 4 2024, and is timely. 5 In the decision, the Administrative Law Judge applied 6 the familiar five-step sequential test for determining

7 disability, first, noting that plaintiff was last insured on 8 March 31, 2023. 9 At step one, the Administrative Law Judge concluded 10 plaintiff had not engaged in substantial gainful activity during 11 the relevant period. 12 At step two, the Administrative Law Judge found that 13 plaintiff does suffer from severe impairments that impose more 14 than minimal limitations on her ability to perform basic work 15 functions, including lupus/inflammatory arthritis, degenerative 16 disc disease of the lumbar spine, and trochanteric bursitis of 17 the left hip. 18 At step three, the Administrative Law Judge found 19 that plaintiff's conditions do not meet or medically equal any 20 of the listed presumptively disabling conditions set forth in 21 the regulations, specifically considering listings 1.18, 14.02,

22 and 14.09. 23 After surveying the record evidence, the 24 Administrative Law Judge concluded plaintiff retains the 25 residual functional capacity, or RFC, to perform light work as 1 defined in the regulations, except she should never climb 2 ladders/scaffolds. She should avoid all exposure to unprotected 3 heights and large moving machinery. She could no more than 4 occasionally reach overhead bilaterally. She could no more than 5 frequently reach, handle, and finger bilaterally. She could 6 stand/walk for no more than four hours in a workday.

7 Applying that RFC finding at step four, 8 Administrative Law Judge Isaacs concluded that plaintiff is 9 capable of performing her past relevant work as a utilization 10 review coordinator, with the assistance of testimony from a 11 vocational expert, as both actually performed and generally 12 performed in the national economy. 13 Alternatively, at step five, the Administrative Law 14 Judge concluded that there is other available work in the 15 national economy that plaintiff is capable of performing, citing 16 as examples cashier II and medical office receptionist and, 17 therefore, concluded that plaintiff was not entitled to the 18 benefits for which she applied. 19 I note, and I'll come back to this, that there are 20 several misstatements in the Administrative Law Judge's 21 decision. The relevant period in this case ended on March 31,

22 2023. However, the Administrative Law Judge attributes 23 treatment notes of June 24, 2022, that's at 367; September 15, 24 2022, that's at 365; April 27, 2022, that's at 369, to occurring 25 after the relevant period closed and, also, treats the opinions 1 of Dr. M. Kirsch, found at Exhibit 3A, and Dr. Bhoiwala as 2 coming after the date of last insured when, in fact, they both 3 are dated within the relevant period. 4 As the parties know, the Court's function in this 5 case is limited to determining whether correct legal principles 6 were applied and the resulting determination is supported by

7 substantial evidence, defined as such admissible evidence as a 8 reasonable person would find sufficient to support a conclusion. 9 The standard of review was addressed by the Second 10 Circuit Court of Appeals in Brault v. Social Security 11 Administration Commissioner,

, Second Circuit, 12 June 29, 2012, and has been reiterated many times, including in 13 Schillo v. Kijakazi, 31 F.4d 64, from the Second Circuit, 2022. 14 In this case, the plaintiff's contentions are, number 15 one, the residual functional capacity finding is not supported 16 by substantial evidence; two, the medical opinion evidence in 17 the record was erroneously evaluated; three, there was an 18 inadequate analysis of plaintiff's subjective complaints of pain 19 and resulting limitations pursuant to SSR, or Social Security 20 Ruling, 03-2p and 16-3p; and four, those errors infect the step 21 four and step five vocational expert testimony.

22 Again, the relevant period in this case is 23 December 16, 2019, through March 31, 2023. The first task, of 24 course, and pivotal to the disability analysis is a 25 determination of the plaintiff's RFC, which represents a finding 1 of the range of tasks the claimant is capable of performing 2 notwithstanding the impairments at issue, 20 C.F.R. Section 3 404.1545(a), Tankisi v. Commissioner of Social Security,

App’x 29, from the Second Circuit, 2013. 5 Ordinarily, an RFC represents a claimant's maximum 6 ability to perform sustained work activities in an ordinary

7 setting on a regular and continuing basis, meaning eight hours a 8 day for five days a week or an equivalent schedule. And, of 9 course, the RFC determination is informed by consideration of a 10 claimant's physical and mental abilities, symptomology, and 11 other limitations that could interfere with work activities on a 12 regular and continuing basis, as well as all of the relevant 13 medical and other evidence. 14 In this case, the starting point of the RFC is light 15 work as defined in the regulations, including 20 C.F.R. Section 16 404.1567(b). It's also indicated in Social Security Ruling, or 17 SSR, 83-10. And significantly, there are weight limitations on 18 lifting and carrying. And the regulations state a job in this 19 category requires a good deal of walking or standing or when it 20 involves sitting most of the time with some pushing and pulling 21 of arm and leg controls. The case law has fleshed out that a

22 full range of light work normally requires intermittent standing 23 or walking for a total of approximately six hours of an 24 eight-hour workday with sitting occurring intermittently during 25 the remaining time, Poupore v. Astrue,

, Second 1 Circuit, 2009. 2 As Commissioner's counsel pointed out, the RFC is 3 further limited in this case by requiring only the plaintiff to 4 never climb ladders and scaffolds, avoiding exposure to 5 unprotected heights and large moving machinery, no more than 6 occasional reaching overhead bilaterally, no more than frequent

7 reaching, handling, and fingering bilaterally, and standing or 8 walking is further restricted to four hours in a workday. 9 One of the bases for the conclusion of the RFC by the 10 ALJ is consideration of the medical opinions of record. Since 11 the application in this case was filed after March 27, 2017, the 12 case is subject to amended regulations concerning consideration 13 of opinion evidence under which the Commissioner no longer 14 defers or gives special evidentiary weight to any medical 15 opinion, but instead must consider whether they are persuasive 16 by primarily considering whether they are supported by and 17 consistent with the record in the case, 20 C.F.R. Section 18 404.1520(c). 19 The Administrative Law Judge must articulate in his 20 or her determination how persuasive he or she finds each medical 21 opinion and explain how the factors of supportability and

22 consistency of those opinions was considered. And those 23 explanations must be sufficient to allow for meaningful judicial 24 review. 25 If there are conflicts in the medical opinions, 1 however, it is in the first instance for the Administrative Law 2 Judge to resolve those conflicts, Veino v. Barnhart,

578, from the Second Circuit, 2002. 4 We start, of course, with the proposition that it is 5 plaintiff's burden to establish her limitations based on her 6 medical conditions, Poupore v. Astrue,

, Second

7 Circuit, 2009, which I cited earlier. 8 In terms of mental, plaintiff's medical records 9 include a prior administrative finding by Dr. S. Hennessey dated 10 December 21, 2020. It appears at pages 90 through 99 of the 11 Administrative Transcript. Dr. Hennessey finds no severe mental 12 impairment. The Administrative Law Judge concluded that that 13 determination was persuasive, that's at page 18 of the 14 Administrative Transcript, finding that it is both supported by, 15 and consistent with, treatment records. And I agree, the 16 treatment notes concerning plaintiff's mental condition show 17 that her ADHD and anxiety were well controlled. And I note that 18 the record contains no notes of the psychiatrist or therapist 19 that plaintiff has treated with for her mental conditions. 20 The record also contains the opinion of Dr. K. 21 Lieber-Diaz. It's a prior administrative medical finding dated

22 August 12, 2022. It's at page 101 to 114, again, affirming that 23 there's no severe mental impairment. It is found to be 24 persuasive at page 18, and with the same reasons. 25 There is a mental assessment by an examining 1 consultative examiner, Dr. David Schaich, from November 20, 2 2020. That's at 333 to 337 of the Administrative Transcript. 3 And the doctor finds some limitations: Significantly moderate 4 limitation in the ability to interact adequately with 5 supervisors, coworkers, and the public; moderate limitation in 6 the ability to sustain concentration and perform a task at a

7 consistent pace; and moderate limitation in the ability to 8 regulate emotions, control behavior, and maintain wellbeing. 9 The Administrative Law Judge considered that medical 10 source statement at pages 18 and 19, and found it not to be 11 persuasive. The reasons stated are that the examination of the 12 doctor did not support the conclusions. Secondly, many primary 13 care records indicated that plaintiff's Adderall prescription 14 was effectively controlling her ADD. Third, the claimant's 15 baseline past relevant work required sophisticated, rather than 16 just superficial, interaction with coworkers and 17 patients/customers. Four, there's no meaningful evidence of a 18 decrease in her function. And five, the other evidence 19 regularly reported that claimant's anxiety and ADHD have been 20 controlled. And it cites an example at part of Exhibit 5F. 21 The Administrative Law Judge was entitled to resolve

22 the conflicts between that report and the prior administrative 23 medical findings. The prior administrative medical findings, if 24 supported, can provide substantial evidence for a determination, 25 Valdes-Ocasio v. Kijakazi,

from the Second 1 Circuit Court of Appeals, 2023. So I find no error with regard 2 to the mental component of the RFC and the fact that there were 3 no mental-related limitations contained in it. 4 Physically, the record contains, again, prior 5 administrative findings in this case by, first, Dr. K. Waldman, 6 January 25, 2021, at 90 to 99 of the Administrative Transcript

7 and, secondly, Dr. M. Kirsch from August 15, 2022, at 101 to 114 8 of the Administrative Transcript. 9 Dr. Kirsch opined that plaintiff's capable of 10 performing basically light work. The Administrative Law Judge 11 found it to be partially persuasive at page 17, but found that 12 plaintiff was more limited. I don't find any error in that 13 determination. And similarly, with regard to Dr. Waldman -- 14 that was Dr. Kirsch. And Dr. Waldman found no evidence 15 sufficient to establish a mentally determinable physical 16 impairment. That was rejected by the Administrative Law Judge 17 at page 18 and I find no error in that determination. 18 The last medical report -- one of the last -- 19 speaking to plaintiff's physical condition is from Dr. Heather 20 Kidd and it was the result of a consultative examination 21 occurring on November 20, 2020. Dr. Kidd concluded that

22 claimant has mild limitations in squatting, kneeling, and 23 overhead reaching. The Administrative Law Judge found that that 24 was not supported and finds greater limitations at page 18. 25 I note that at step five, the Administrative Law 1 Judge found -- well, let me back up. 2 The RFC contains a limitation to squatting and 3 kneeling and limits plaintiff specifically to occasional 4 overhead reaching. The positions cited at step five include 5 receptionist, that is DOT 237.367-038. And according to the 6 DOT, that requires frequent reaching, making it inconsistent

7 with the RFC determination. That inconsistency was not 8 explained by the vocational expert. I note that the reason for 9 that is the hypothetical posed at step five included a 10 requirement of frequent reaching, which is inconsistent with the 11 RFC. That's at page 75 of the Administrative Transcript. The 12 same error was committed with regard to the position of cashier 13 II, which is DOT 211.462-010, which requires frequent reaching, 14 which is inconsistent with the RFC in this case. 15 The same error is committed with regard to stooping, 16 kneeling, crouching -- I'm sorry, the error I find is harmless, 17 however, because the step four determination is supported. The 18 hypothetical that was given to the vocational expert at the step 19 four analysis specified occasional reaching overhead 20 bilaterally. That's page 71. The vocational expert said that 21 plaintiff could perform her past relevant work as a utilization

22 review coordinator at page 71. And according to the DOT, 23 specifically 079.267-010, that requires only occasional 24 reaching. 25 I note that there's also a medical opinion from 1 Dr. Dipti Bhoiwala from May 24, 2023. That's at 389 to 392 of 2 the Administrative Transcript. It is extremely limiting. It 3 limits plaintiff basically to less than sedentary work. The 4 Administrative Law Judge concluded that was not persuasive and 5 cited reasons. First, it was issued after the date of last 6 insured status, which is an error. Second, a limitation of

7 sedentary work is not supported by Dr. Bhoiwala's own notes. 8 Three, it's inconsistent with other evidence of record, which 9 showed a normal gait and stance, et cetera. And four, while the 10 plaintiff has joint arthritis, no impairment could be expected 11 to cause difficulties with her arteries or veins, so no clear 12 explanation for the need to elevate her feet. 13 As I indicated, the first statement is error. We 14 don't really know to what extent the Administrative Law Judge 15 placed reliance on the mistaken fact that this was issued after 16 the date of last insured status, but I find no error. The 17 treatment records which are discussed by the Administrative Law 18 Judge in depth at pages 16 and 17, including 3F, 4F, and 5F, do 19 not support the doctor's opinions. They do reflect occasional 20 flare ups of joint pain and swelling, but also show that those 21 conditions are generally controlled, especially on Enbrel.

22 I note that the opinion of Dr. Bhoiwala on July 10, 23 2020, that plaintiff was 100 percent disabled, it was properly 24 rejected by the Administrative Law Judge as addressing a matter 25 reserved to the Commissioner. 1 The subjective complaints of pain by the plaintiff 2 was subject to evaluation pursuant to well-accepted guidelines 3 set out, among other things, in SSR 16-3p. When addressing 4 subjective reports of pain and other limitations or conditions, 5 the ALJ must consider relevant factors, including daily 6 activities, location, duration, frequency, and intensity of

7 symptoms, any precipitating or aggravating factors, the type, 8 dosage, effectiveness, and side effects of medications taken, 9 other treatment received, and other measures taken to relieve 10 symptoms. 11 If there's a rejection of the subjective complaints, 12 there must be an articulation of the reasoning sufficient, 13 again, to allow meaningful judicial review. And, of course, it 14 is well accepted that an ALJ's assessment of an individual's 15 subjective complaints regarding pain and other symptoms is 16 entitled to substantial deference by a reviewing court, Aponte 17 v. Secretary of Department of Health and Human Services of the 18 United States,

, Second Circuit, 1984. 19 I also note that a plaintiff need not be found to be 20 pain free in order to be found not disabled, Wendy L.B. v. 21 Kijakazi,

, from the Northern District of New

22 York, May 5, 2023. 23 I also acknowledge the requirements of Social 24 Security Ruling 03-2p, although -- and it requires that a 25 plaintiff be diagnosed with regional pain syndrome, which was 1 not the case here. Nonetheless, the Administrative Law Judge 2 applied the two step analysis for determining the extent to 3 which plaintiff's subjective complaints are supported. Those 4 complaints were dismissed entirely -- almost entirely by the 5 Administrative Law Judge at pages 16 to 17. I note that one of 6 the reasons was plaintiff apparently referenced increased pain

7 complaints and those were erroneously attributed to post date of 8 last insured status at page 17. 9 The Administrative Law Judge concluded that there was 10 insufficient evidence to support the pain complaints mostly at 11 page 16 and 17, and there was heavy reliance on matters that 12 occurred after the date of last insured status. There's no 13 explanation that would suggest that if credited, those 14 complaints wrongly attributed to post-DLI would yield the same 15 result. I don't have a firm conviction that that's the case, we 16 simply don't know to what extent they were discounted because of 17 the error in attributing them to post-DLI, so I find error in 18 that regard and it affects the ALJ's decision regarding both the 19 RFC determination, the treatment of plaintiff's pain complaints, 20 and the hypothetical posed to the vocational expert at step 21 four.

22 So I will grant plaintiff judgment on the pleadings 23 without a directed finding of disability because I do not find 24 persuasive evidence of disability, and order that the matter be 25 remanded for proper consideration of the record evidence, 1 including any evidence before the date of last insured status. 2 Thank you, both, for excellent presentations and I 3 hope you have a good day. 4 MS. GOTTESMAN: Thank you, your Honor. 5 MS. COHN: Thank you. 6 (Time noted: 2:45 p.m.)

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23 24 25 1 2 3 4 CERTIFICATE OF OFFICIAL REPORTER 5 6

7 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 8 NYRCR, Official U.S. Court Reporter, in and for the United 9 States District Court for the Northern District of New York, DO 10 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 11 States Code, that the foregoing is a true and correct transcript 12 of the stenographically reported proceedings held in the 13 above-entitled matter and that the transcript page format is in 14 conformance with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 12th day of August, 2025. 18 19 s/ Hannah F. Cavanaugh______________________ 20 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 21 Official U.S. Court Reporter 22

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