Schaack v. Commissioner of Social Security

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________
LISA S.,
Plaintiff,
v. 	5:24-CV-1455
(DJS)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________
APPEARANCES: 	OF COUNSEL:
OLINSKY LAW GROUP 	HOWARD OLINSKY, ESQ.
Attorney for Plaintiff
250 South Clinton Street, Suite 210
Syracuse, New York 13202
U.S. SOCIAL SECURITY ADMIN. 	DANIEL S. TARABELLI, ESQ.
OFFICE OF THE GENERAL COUNSEL
Attorney for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
DANIEL J. STEWART
United States Magistrate Judge
DECISION AND ORDER
In this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the
Commissioner of Social Security, Plaintiff raises two issues: 1) the alleged failure of the
Commissioner to comply with a previous remand order; and 2) error at Step Five of the
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sequential analysis regarding the identification of work that Plaintiff could perform. See
generally Dkt. No. 11, Pl.’s Mem. of Law. She requests that the matter be remanded to
the Commissioner solely for a calculation of benefits. 	Id. at p. 16. 	In the alternative,
she seeks remand for further proceedings to address the errors identified. 	Id. 	The
Commissioner now concedes that the Administrative Law Judge erred at Step Five. Dkt.
No. 16, Def.’s Mem. of Law at p. 3. 	In his view, however, remand for further
administrative proceedings is the proper remedy. Id. at p. 6. In Reply, Plaintiff argues
that the conceded error cannot properly be remedied by such remand. 	Dkt. No. 19.
Here, the Court agrees that remand for further proceedings is the proper course.
Given the Commissioner’s concession of error, the only question is one of
remedy. 	A remand solely 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.” Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Reversal
for calculation of benefits is considered a “rare case.” Kyle P. v. Comm’r of Soc. Sec.,
2022 WL 1659193, at *7 (N.D.N.Y. May 25, 2022); see also Baldwin v. Astrue, 2009
WL 4931363, *19 (S.D.N.Y. Dec. 21, 2009) (remanding only for benefits calculation
“is an extraordinary action and is proper only when further development of the record
would serve no purpose”).
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The Court does not find this to be such a rare case or one where remand for further
proceedings would serve no purpose. The error identified presents a conflict between
vocational 	requirements 	identified 	in 	the 	Dictionary 	of 	Occupational 	Titles 	and
testimony from a vocational expert (“VE”). See Pl.’s Mem. of Law at pp. 13-16; Def.’s
Mem. of Law at pp. 3-4. This is a conflict ALJ’s are well-versed in addressing. In fact,
“SSR 00-4p creates an affirmative responsibility for an ALJ to ask the VE about any
possible conflict between the VE’s testimony and the Dictionary of Occupational Titles
(DOT) before relying on VE testimony about possible jobs that fit a claimant’s RFC
determination.” Rodriguez v. Comm’r of Soc. Sec., 2023 WL 5019465, at *4 (E.D.N.Y.
Aug. 7, 2023) (internal quotations omitted); see also Robles v. Comm’r of Soc. Sec.,
2016 WL 7048709, at *6 (N.D.N.Y. Dec. 5, 2016) (similar). 	The Court should not
resolve that conflict in the first instance here. Lockwood v. Comm’r of Soc. Sec. Admin.,
914 F.3d 87, 94 (2d Cir. 2019).
The Court recognizes that the application at issue here was first filed in 2019 and
that this claim has once before been remanded from this Court for further proceedings.
However, “delay alone is an insufficient basis on which to remand for benefits.” Lee v.
Astrue, 2011 WL 1675101, at *8 (W.D.N.Y. May 4, 2011) (quoting Butts v. Barnhart,
416 F.3d 101, 103 (2d Cir. 2005)); see also Kim G. o/b/o Erica L. v. Comm’r of Soc.
Sec., 2025 WL 2552598, at *5 (W.D.N.Y. Sept. 4, 2025).
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ACCORDINGLY, it is
ORDERED, the Defendant’s Motion to Remand for Further Proceedings (Dkt.
No. 16) is GRANTED and that this matter is REMANDED for further proceedings
pursuant to sentence four; and it is further
ORDERED, the Defendant’s Motion for an Extension of Time (Dkt. No. 15) is
DENIED as moot; and it is further
ORDERED, 	that 	the 	Clerk 	of 	the 	Court 	shall 	serve 	copies 	of 	this
Decision and Order on the parties.
Dated: January 15, 2025
Albany, New York
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