McClement v. Commissioner of Social Security

Filing 16

ORDER: It is Ordered that Plaintiff's Motion for Judgment on the Pleadings is GRANTED. The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Ac t is VACATED. The matter related to the # 1 Complaint filed by Susan McClement is hereby REMANDED to the Commissioner, with a directed finding of disability, for the purposes of calculating benefits owing to the plaintiff. The Clerk is directed to enter Judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 USC 405(g) and closing this case. Copy of the Transcript of the Telephone Conference held on 2/13/2015 attached. Signed by Magistrate Judge David E. Peebles on 2/13/2015. (jmb)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK SUSAN McCLEMENT, Plaintiff, v. Civil Action No. 1:13-CV-1450 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF BUCKLEY, MENDLESON LAW OFFICE IRA MENDLESON, III, ESQ. 29 Wards Lane Albany, NY 12204 FOR DEFENDANT HON. RICHARD S. HARTUNIAN United States 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 JASON P. PECK, ESQ. Special Assistant U.S. Attorney ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. ' 405(g), are cross-motions for judgment on the pleadings. 1 Oral argument was conducted in connection with those motions on February 13, 2015 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 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 (formerly, General Order No. 43) which was issued by the Hon. Ralph W. Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on September 12, 2003. Under that General Order an action such as this is considered procedurally, once issue has been joined, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 2 ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED. 2) The Commissioner=s determination that plaintiff was not 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, with a directed finding of disability, for the purpose of calculating benefits owing to the plaintiff. 4) The clerk is directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to IT sentence four of 42 U.S.C. ' 405(g) and closing this case. ___ Dav U.S Dat Dated: February 13, 2015 Syracuse, New York ___________________________ David E. Peebles U.S. Magistrate Judge DENIED: ___________________________ David E. Peebles U.S. Magistrate Judge Dated: ____________________ Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SUSAN McCLEMENT, Plaintiff, vs. 1:13-CV-1450 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Telephone Conference Decision held on February 13, 2015, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States District Judge, Presiding. A P P E A R A N C E S (Via Telephone) For Plaintiff: BUCKLEY, MENDLESON LAW FIRM Attorneys at Law 29 Wards Lane Albany, New York 12204 BY: IRA MENDLESON, III, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: JASON P. PECK, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 9 (The following is an excerpt from the 1 proceedings held on 2/13/15.) 2 (In Chambers, Counsel present via telephone.) 3 THE COURT: 4 5 Very good. I appreciate excellent presentations by counsel. I have before me a request for judicial review of a 6 7 Commissioner's determination that the plaintiff in this 8 action was not disabled at the relevant times and therefore 9 ineligible for the benefits for which she applied. 10 sought under 42 United States Code Section 405(g). Review is As everyone knows, under that provision, the 11 12 court's task is fairly limited and it applies a very 13 deferential standard. 14 legal principles were applied and the ALJ and Commissioner's 15 determination were supported by substantial evidence. 16 Supreme Court has defined substantial evidence as such 17 relevant evidence as a reasonable mind might accept as 18 adequate to support a conclusion. My role is to determine whether proper The background for the case is as follows: 19 The The 20 plaintiff was born in January of 1975 and is 40 years old. 21 She's a high school graduate with some trade school training. 22 She's right-hand dominant, she's divorced, last worked in 23 July of 2009, where she was injured in a submarine shop 24 setting. 25 nursing home, as a cashier in a grocery and drugstore, and as She's also worked as a certified nurse aide in a JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 10 1 2 a bank teller. In July of 2009, she consulted with an orthopedist, 3 Dr. Todd Shatynski, who saw her from then until roughly 4 January of 2010. 5 Group including Drs. Locke and Yoon who appear to be general 6 practitioners. 7 She has also treated with Latham Medical In February of 2010, she saw Dr. Daniel T. Phelan, 8 an orthopedic surgeon, who performed a SLAP repair of the 9 plaintiff's left extremity on July 28, 2010. After the 10 surgery the plaintiff continued to complain of pain in her 11 left shoulder. 12 September and November of 2010. 13 Dr. Kyle Flik for a second opinion on May 25, 2011. 14 diagnosed her with suspected bicipital tendinitis and gave 15 her a Lidocaine injection. 16 plaintiff's complaints of pain. 17 of the administrative transcript. 18 the plaintiff would ever improve. She went to physical therapy between She was ultimately seen by Dr. Flik Didn't appear to question His reports include page 259 He indicated he doubted 19 She has seen several Workers' Compensation 20 consultants, including Dr. Steven Hausmann, in 2010 diagnosed 21 plaintiff with adhesive capsulitis, indicated she had a 22 limited range of motion and no ability to lift with her left 23 extremity. 24 25 She was also consultatively seen by Dr. Louis Benton in the Workers' Compensation setting on November 14th, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 11 1 2011, and again, September 8, 2012. She was seen on behalf of the Commissioner, as 2 3 plaintiff's counsel indicated, by Dr. Jose Corvalan on 4 January 19, 2012. 5 that is in the record. He issued a medical source evaluation and She was seen on September 24, 2012 by Dr. Andrew 6 7 Dubin on referral from Dr. Phelan. 8 plaintiff had a marked partial disability. Plaintiff underwent a second surgery on April 24, 9 10 He indicated that 2012. Procedurally, plaintiff applied for Disability 11 12 Insurance benefits on November 1, 2010, alleging an onset 13 date of July 2, 2009. 14 and December 15, 2011 by Administrative Law Judge Carl 15 Stephan. 16 Hearings were conducted on May 8, 2012 On May 18, 2012, ALJ Stephan issued a decision. 17 The decision became a final determination of the Commissioner 18 on October 1, 2013 when the Social Security Administration 19 Appeals Council denied plaintiff's application for review of 20 that determination. 21 In his decision, the administrative law judge went 22 through the now familiar five-step test for determining 23 disability, found that the plaintiff was insured through 24 December 31, 2014, at step one concluded she had not engaged 25 in substantial gainful activity since July 2, 2009, noted JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 12 1 that she suffers from severe -- at step two, severe 2 conditions posing work-related limitations including left 3 shoulder pain post-arthroscopic surgery and asthma. 4 three he concluded, however, that she did not -- her 5 conditions did not meet or equal medically any of the listed 6 presumptively disabling conditions. 7 musculoskeletal issues and her respiratory issues under 8 Listings 1.00 and 3.00. 9 At step He considered both the He next determined, after surveying the medical 10 evidence, that she retains the residual functional capacity 11 to work in a sedentary setting, except that she's limited to 12 lifting and/or carrying 5 pounds occasionally and 13 occasionally reaching in all directions with her nondominant 14 left upper extremity but she has no restrictions with her 15 dominant right upper extremity. 16 ability -- no sit, stand, or walk limitations but cannot 17 perform any climbing of ladders or scaffolds and no crawling. 18 He further found she should not be exposed to concentrated 19 amounts of respiratory irritants. 20 In addition, she has no Applying that RFC, he next presented or -- 21 presented a hypothetical, two hypothetical questions, one of 22 which tracked his RFC finding, to a vocational expert, who 23 concluded and testified that plaintiff cannot perform her 24 past relevant work, and that she is unable to perform in 25 other capacities -- that she is able to perform, I'm sorry, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 13 1 work available in the national and regional economies. The second hypothetical which was far more 2 3 restricted, as plaintiff's counsel indicated, resulted in a 4 finding that plaintiff was not disabled. 5 that if the grids were applied, a finding of no disability 6 would be compelled by Rule 202.21, but he determined that 7 with her nonexertional limitations, a vocational expert 8 should be -- should testify based on the possibility of 9 erosion of the job base on which the grids are predicated. The ALJ also noted When I look at the medical evidence, I have to 10 11 conclude that the finding that plaintiff can occasionally 12 lift with her left extremity is not supported by substantial 13 evidence. 14 testimony. 15 to use her left arm. 16 unable to lift above her waist with her left arm at 223 of 17 the administrative transcript. 18 able to work but cannot use her left extremity, left upper 19 extremity for any meaningful work, that is at 276. 20 that the administrative law judge claimed to have given great 21 weight to the opinions of Dr. Benton. 22 indicated that plaintiff has a marked limitation in her use 23 of her left upper extremity, that is at 280. 24 administrative law judge claims to have given at least some 25 weight to Dr. Corvalan's opinions. It is certainly contradicted by plaintiff's At pages 38 and 50, she testified she is unable Dr. Hausmann indicated that she is Dr. Benton said that she is I note Dr. Corvalan also JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 The 14 1 When the ALJ balanced the medical evidence, he 2 focused on Dr. Locke and Dr. Yoon, these are generalists who 3 were treating the plaintiff primarily prior to her even first 4 surgery; Dr. Shatynski, who treated the plaintiff early on; 5 and Dr. Flik, who saw her only once and even then found no 6 reason to question her pain and gave her a Lidocaine 7 injection. 8 9 Her treating source unfortunately has really not provided a medical source statement. Dr. Phelan did, 10 however, say that she was 100 percent disabled, and while it 11 is certainly the law that his, his raw conclusion of 12 disability is not acceptable and entitled to controlling 13 weight since it addresses a matter reserved to the 14 Commissioner, nonetheless, it certainly is an indication that 15 Dr. Phelan concurs with these other opinions about her 16 limitations. 17 So I conclude that the vocational expert's 18 testimony based on residual function -- the first 19 hypothetical that tracks the residual functional capacity is 20 flawed because the residual functional capacity is not 21 supported by substantial evidence. 22 second hypothetical, I would remand the matter with a 23 direction that the matter be reconsidered. 24 with the plaintiff that the second hypothetical does track 25 the medical evidence and is supported and because the And were it not for the JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 However, I agree 15 1 vocational expert testified that given the limitations of the 2 second hypothetical, plaintiff is unable to work in any 3 capacity in any job available in the national and local 4 economy, I conclude that there is persuasive proof of 5 disability and I will therefore vacate the Commissioner's 6 determination and remand with a directed finding of 7 disability solely for purposes of calculating benefits. 8 9 I thank you both for your excellent presentations again and I hope you have a great weekend. 10 MR. MENDLESON: 11 THE COURT: 12 Okay, thank you, your Honor. Thank you. (Proceedings Concluded, 10:28 a.m.) 13 14 15 16 17 18 19 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 13th day of February, 2015. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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