Second Circuit Victory in Pro Bono Case

This marks one of a handful of times that the Second Circuit has ordered a remand solely for the calculation of benefits over the past 40 years.

January 26, 2021

A Latham team recently achieved a significant victory in a Second Circuit pro bono case, Demars v. Commissioner of Social Security, appealing the denial of Social Security disability benefits.  

Associates Samir Deger-Sen and Allison Herzog drafted the appellate briefing, and Mr. Deger-Sen argued the appeal before a panel of Second Circuit judges. On January 6, 2021, the Second Circuit, in ruling that substantial evidence supported a finding of the appellant’s disability, reversed the District Court’s judgment affirming the Social Security Commissioner’s denial of benefits and remanded for the calculation of benefits. By securing the full relief requested, the case marks a major victory as the Second Circuit has ordered a remand solely for the calculation of benefits in only a handful of cases over the past 40 years.  

In rejecting the administrative law judge’s finding of no disability, the court found that the sporadic omissions of assistive devices in the appellant’s treatment notes were insufficient to outweigh the affirmative evidence of disability. Though declining to grant the 2016 treating physician’s opinion controlling weight, the court concluded that the administrative law judge should have given significant — not “little” — weight to the treating physician’s treatment notes from the contemporaneous period. In reviewing the record, the court found the appellant disabled because he could not ambulate effectively, thus satisfying the Listing 1.03, and likely Listing 1.02, requirements. Because the appellant persuasively proved disability, the court granted the full relief requested and remanded solely for the calculation of benefits owed in lieu of further evidentiary proceedings. 

In addition to Mr. Deger-Sen and Ms. Herzog, the Latham team included partner Roman Martinez and associate Lydia Franzek.

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