Lumpkin v. Commissioner of Social Security

Filing 17

ORDER. Plaintiff's motion for judgment on the pleadings is GRANTED; The Commissioner's determination that plaintiff was not disabled at the relevant times is VACATED; The matter is hereby REMANDED to the Commissioner for further proceedings. The clerk is directed to enter judgment based on this determination. Signed by Magistrate Judge David E. Peebles on 3/26/2015. (lah)

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

BARBARA DIANE LUMPKIN,
Plaintiff,
v.

Civil Action No.
1:14-CV-865 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
DOLSON LAW OFFICE
126 North Salina St., Suite 3B
Syracuse, NY 13202

MAGGIE W. McOMBER, ESQ.

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

VERNON NORWOOD, 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 March 25, 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

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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.

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ORDERED, as follows:
1)

Plaintiff motion for judgment on the pleadings is GRANTED.
s

2)

The Commissioner determination that plaintiff was not
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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 42 U.S.C. 
405(g) and closing this case.

Dated: March 26, 2015
Syracuse, New York

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
BARBARA DIANE LUMPKIN,
Plaintiff,
vs.

1:14-CV-865

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on March 25, 2015, at the
James Hanley Federal Building, 100 South Clinton
Street, Syracuse, New York, the HONORABLE DAVID E.
PEEBLES, United States Magistrate Judge, Presiding.
A P P E A R A N C E S
(By Telephone)
For Plaintiff:

LAW OFFICES OF STEVEN R. DOLSON
Attorneys at Law
126 North Salina Street
Suite 3B
Syracuse, New York 13202
BY: MAGGIE W. McOMBER, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza
Room 3904
New York, New York 10278
BY: VERNON NORWOOD, ESQ.

Jodi L. Hibbard, RPR, CRR, CSR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

Well, I appreciate the excellent oral

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and written presentations of counsel.

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I have a request for judicial review of an administrative

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determination of the Commissioner.

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As I indicated before,

The background of this case is as follows:

The

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plaintiff was born in August of 1960 and is currently 54

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years of age.

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sometimes, although, and it was a little -- she was a little

She lives with her daughter and family

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reluctant I think to admit until it was brought out during

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the hearing, she also takes care of her elderly aunt who

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suffers from dementia approximately 80 percent of the time.

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Her past relevant work has included working as a life skills

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assistant with ARC, an office administrator, an office

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worker, a receptionist, and a submarine sandwich maker.

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is found at various places including 147 of the

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administrative transcript.

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That

She underwent surgery on September 14, 2010 by

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Dr. Craig Goldberg.

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and foraminectomy and a discectomy, that's at 290 and 291 of

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the administrative transcript.

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doing well and she was released by Dr. Goldberg to work on

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November 5, 2010, that's at 291.

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She had a right L5-S1 hemilaminectomy

After the surgery she was

The situation was exacerbated when she slipped
exiting her daughter's pool in or about September of 2011 and

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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required a trip to the emergency room the next day.

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since that time, has been on Flexeril and hydrocodone, has

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seen both Dr. Darah Wright since December of 2010, and saw

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Dr. Goldberg once in September of 2011.

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Dr. Peter Bennett and a Dr. Korn.

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She,

She has also seen

She underwent magnetic resonance imaging or MRI

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testing in November of 2011.

That testing did result in

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findings of some, I will say degenerative situations.

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MRI report indicates a small right paracentral disk

The

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protrusion and enhancement causing right lateral recess

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stenosis at L5-S1, status post right laminectomy and

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discectomy, a sacral cyst which causes slight mass effect on

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the right S1 nerve root sleeve, a small left foraminal

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annular tear of the L3-L4 disk, and mild degeneration of the

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L4-L5 disk.

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She has visited with various of her treating

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sources who from time to time have observed decreased range

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of motion and tenderness in her back although it was -- it

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has alternatively been reported that her pain is well

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controlled by medication.

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As counsel has noted, there was a medical source

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statement issued by Dr. Wright in August of 2012 at 281, 282

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that was very restrictive and inconsistent with a finding of

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light work.

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Procedurally, the plaintiff applied for Disability

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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Insurance benefits in September of 2011, alleging an onset

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date of June 7, 2010.

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November 28, 2012 by Administrative Law Judge Arthur Patane.

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Judge Patane issued the decision on January 25, 2013, in

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which he concluded that plaintiff retains residual functional

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capacity to perform a full range of light work, and concluded

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that she is capable of performing her past relevant work as a

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receptionist.

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disabled at the relevant times.

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The hearing was conducted on

The ALJ therefore determined she was not

The ALJ's decision became final determination of

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the agency when, on June 4, 2014, the Social Security

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Administrative Appeals Council denied review.

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The standard of review, as you know, is extremely

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deferential.

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principles were applied and the decision is supported by

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substantial evidence.

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substantial evidence as "such relevant evidence as a

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reasonable mind might accept as adequate to support a

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conclusion."

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I am required to determine whether proper legal

The Supreme Court has defined

The first argument that counsel has made concerns

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the rejection of the treating source assessment statement

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from Dr. Wright.

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proper and that it was well explained.

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lift-and-carry limitations in particular of Dr. Wright are

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inconsistent with and directly contradicted by testimony and

I find that that, the rejection of that was
The extreme

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

17
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statements of the plaintiff concerning her ability to lift

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and carry.

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statements were made during the hearing at page 31 that

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plaintiff can lift 30 pounds, at page 137; 139 she stated she

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can lift 20 pounds; in June of 2010 she stated she can lift

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25 pounds, that's at 194; in November of 2011 she stated she

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could do light duty, that's at 288, and there are several

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other references.

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good health in February of 2012 and can lift up to 25 pounds.

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As I indicated in my -- during the oral argument,

Dr. Korn notes that she stated she was in

The issue I have here, quite honestly, is that

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there is absolutely no medical evidence that specifically

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states what plaintiff's limitations are concerning sit-stand

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and the number of days she would be absent, if you discount

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Dr. Wright's opinions, you're left with nothing.

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I read with great interest the case that was cited,

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Walker v. Astrue, and it was actually cited I think by the

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Commissioner, from the Western District of New York at 2010

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WL 2629832, it was from June 11, 2010, and I found this to be

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an extremely similar case.

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that because of the limited evidence in the record concerning

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plaintiff's functional limitations, the ALJ should have

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ordered a consultative examination or attempted to recontact

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plaintiff's treating physicians to complete the record, and I

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was persuaded that that's the case here as well.

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In that case the judge concluded

The -- I know the plaintiff has asked for a remand

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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with a directed finding of disability.

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persuasive evidence of disability and I am convinced that in

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the end, when a consultative exam is ordered and proper

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medical evidence adduced, she will be found not to be

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disabled, but I cannot say that there is substantial evidence

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in the record to support the ALJ's conclusion.

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consultative examination should have been ordered, and so I

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will therefore grant judgment on the pleadings to the

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plaintiff and vacate the Commissioner's determination and

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remand for further proceedings, including scheduling of a

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consultative examination.

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I don't find any

I think a

Again, I appreciate oral argument this afternoon
and I hope you have a good afternoon, thank you.

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MS. McOMBER:

Thank you.

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MR. NORWOOD:

You're welcome.

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(Proceedings Adjourned, 4:07 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 26th day of March, 2015.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]