Hughes v. Saul ( 2021 )

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------------x ERIC G. HUGHES, MEMORANDUM AND ORDER Plaintiff, Case No. 1:20-cv-01609-FB -against- COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------x Appearances: For the Defendant: For the Plaintiff: JACQUELYN KASULIS, ESQ. EDDY PIERRE PIERRE, ESQ. Acting United States Attorney Pierre Pierre Law, P.C. Eastern District of New York 211 East 43rd Street, Suite 608 By: ANNE M. ZEIGLER, ESQ. New York, New York 10017 Special Assistant United States Attorney 271 Cadman Plaza East Brooklyn, New York 11201 BLOCK, Senior District Judge: Hughes seeks review of the Commissioner of Social Security’s denial of his applications for disability insurance benefits (“DIB”) and supplemental security income benefits (“SSI”). The parties agree that remand is warranted but disagree as to whether benefits may now be awarded. The Court holds that benefits should be awarded. I. Hughes suffers from neck, shoulder, back, hip and knee pain, headaches and migraines, obesity, asthma, sleep apnea, and depression. He has not worked since 2011. The Commissioner concedes that remand is appropriate because the ALJ erred by failing to consider a non-mechanical application of the Medical Vocational Guidelines age category. See ECF No. 22 at 19. Hughes argues that the ALJ further erred by failing to apply the treating physician rule and by failing to properly evaluate his subjective symptom testimony. II. Remand for calculation of benefits is appropriate when the record provides “persuasive proof of disability and a remand for further evidentiary proceedings would serve no purpose.” Demars v. Comm’r of Soc. Sec., 841 F. App’x 258, 263 (2d Cir. 2021) (quoting Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). Additionally, where reversal is based on the Commissioner’s failure to sustain her burden to show that plaintiff can engage in sedentary work, “no purpose would be served by [] remanding the case for rehearing.” Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d Cir. 1983). In this case, proper application of the legal standards supports a finding that Hughes is incapable of performing sedentary work. The vocational expert testified that the jobs available in the national economy based on Hughes’ RFC would only tolerate one absence per month, and that there would be no work available for an individual who had to veer off task every 15 minutes. Hughes’ treating physicians consistently held that his symptoms would cause him to be absent from work 2-3 times a month. See, e.g., A.R. 446, 1317, 1342. Dr. Cohen further opined that Hughes would need to take a break every 15 minutes. See A.R. 444. As in Finnegan v. Berryhill, remand for the calculation of benefits is appropriate “because the record provides persuasive proof of plaintiff’s disability, proper application of the legal standards would not contradict the weight of this evidence in the record, and ‘the Commissioner failed to introduce evidence sufficient to sustain [her] burden of proving that [plaintiff] could perform the exertional requirements of sedentary work.’ ” No. 1:16-CV-03939(FB), 2017 WL 4990565, at *5 (E.D.N.Y. Oct. 30, 2017) (quoting Henningsen v. Comm’r of Soc. Sec. Admin., 111 F. Supp. 3d 250, 273 (E.D.N.Y. June 8, 2015)). Here, the opinions of Hughes’ treating physicians were entitled to controlling weight.1 When given such weight, they support a finding that there are no jobs in the 1 The ALJ’s decision not to assign controlling weight to Hughes’ treating physicians was error since: (1) she ignored relevant objective evidence that supported the treating physicians' opinions (See Fiorello v. Heckler, 725 F.2d 174, 175-76 (2d Cir. 1983); see also Scott v. Astrue, 647 F.3d 734, 740 (7th Cir. 2011) (“The ALJ was not permitted to ‘cherry-pick’ from [a physician's] mixed results to support a denial of benefits”) (internal citations omitted)); and (2) she did not account for Hughes’ subjective complaints of pain (See Green-Younger v. national economy that Hughes can perform. Accordingly, Hughes is entitled to the calculation of benefits upon the remand. CONCLUSION Hughes’ motion is GRANTED, and the Commissioner’s is DENIED. The case REMANDED for the calculation of benefits. SO ORDERED. _/S/ Frederic Block___________ FREDERIC BLOCK Senior United States District Judge Brooklyn, New York July 1, 2021 Barnhart, 335 F.3d 99, 107 (2d Cir. 2003) (“a patient’s report of [subjective] complaints. . . is an essential diagnostic tool”) (citing Flanery v. Chater, 112 F.3d 346, 350 (8th Cir. 1997)).