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)

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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 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 motion for judgment on the pleadings is GRANTED. s 2) The Commissioner determination that plaintiff was not s 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 3 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 (315) 234-8547 14 (In Chambers, Counsel present by telephone.) 1 2 THE COURT: Well, I appreciate the excellent oral 3 and written presentations of counsel. 4 I have a request for judicial review of an administrative 5 determination of the Commissioner. 6 As I indicated before, The background of this case is as follows: The 7 plaintiff was born in August of 1960 and is currently 54 8 years of age. 9 sometimes, although, and it was a little -- she was a little She lives with her daughter and family 10 reluctant I think to admit until it was brought out during 11 the hearing, she also takes care of her elderly aunt who 12 suffers from dementia approximately 80 percent of the time. 13 Her past relevant work has included working as a life skills 14 assistant with ARC, an office administrator, an office 15 worker, a receptionist, and a submarine sandwich maker. 16 is found at various places including 147 of the 17 administrative transcript. 18 That She underwent surgery on September 14, 2010 by 19 Dr. Craig Goldberg. 20 and foraminectomy and a discectomy, that's at 290 and 291 of 21 the administrative transcript. 22 doing well and she was released by Dr. Goldberg to work on 23 November 5, 2010, that's at 291. 24 25 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 (315) 234-8547 15 1 required a trip to the emergency room the next day. 2 since that time, has been on Flexeril and hydrocodone, has 3 seen both Dr. Darah Wright since December of 2010, and saw 4 Dr. Goldberg once in September of 2011. 5 Dr. Peter Bennett and a Dr. Korn. 6 She, She has also seen She underwent magnetic resonance imaging or MRI 7 testing in November of 2011. That testing did result in 8 findings of some, I will say degenerative situations. 9 MRI report indicates a small right paracentral disk The 10 protrusion and enhancement causing right lateral recess 11 stenosis at L5-S1, status post right laminectomy and 12 discectomy, a sacral cyst which causes slight mass effect on 13 the right S1 nerve root sleeve, a small left foraminal 14 annular tear of the L3-L4 disk, and mild degeneration of the 15 L4-L5 disk. 16 She has visited with various of her treating 17 sources who from time to time have observed decreased range 18 of motion and tenderness in her back although it was -- it 19 has alternatively been reported that her pain is well 20 controlled by medication. 21 As counsel has noted, there was a medical source 22 statement issued by Dr. Wright in August of 2012 at 281, 282 23 that was very restrictive and inconsistent with a finding of 24 light work. 25 Procedurally, the plaintiff applied for Disability JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 Insurance benefits in September of 2011, alleging an onset 2 date of June 7, 2010. 3 November 28, 2012 by Administrative Law Judge Arthur Patane. 4 Judge Patane issued the decision on January 25, 2013, in 5 which he concluded that plaintiff retains residual functional 6 capacity to perform a full range of light work, and concluded 7 that she is capable of performing her past relevant work as a 8 receptionist. 9 disabled at the relevant times. 10 The hearing was conducted on The ALJ therefore determined she was not The ALJ's decision became final determination of 11 the agency when, on June 4, 2014, the Social Security 12 Administrative Appeals Council denied review. 13 The standard of review, as you know, is extremely 14 deferential. 15 principles were applied and the decision is supported by 16 substantial evidence. 17 substantial evidence as "such relevant evidence as a 18 reasonable mind might accept as adequate to support a 19 conclusion." 20 I am required to determine whether proper legal The Supreme Court has defined The first argument that counsel has made concerns 21 the rejection of the treating source assessment statement 22 from Dr. Wright. 23 proper and that it was well explained. 24 lift-and-carry limitations in particular of Dr. Wright are 25 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 (315) 234-8547 17 1 statements of the plaintiff concerning her ability to lift 2 and carry. 3 statements were made during the hearing at page 31 that 4 plaintiff can lift 30 pounds, at page 137; 139 she stated she 5 can lift 20 pounds; in June of 2010 she stated she can lift 6 25 pounds, that's at 194; in November of 2011 she stated she 7 could do light duty, that's at 288, and there are several 8 other references. 9 good health in February of 2012 and can lift up to 25 pounds. 10 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 11 there is absolutely no medical evidence that specifically 12 states what plaintiff's limitations are concerning sit-stand 13 and the number of days she would be absent, if you discount 14 Dr. Wright's opinions, you're left with nothing. 15 I read with great interest the case that was cited, 16 Walker v. Astrue, and it was actually cited I think by the 17 Commissioner, from the Western District of New York at 2010 18 WL 2629832, it was from June 11, 2010, and I found this to be 19 an extremely similar case. 20 that because of the limited evidence in the record concerning 21 plaintiff's functional limitations, the ALJ should have 22 ordered a consultative examination or attempted to recontact 23 plaintiff's treating physicians to complete the record, and I 24 was persuaded that that's the case here as well. 25 In that case the judge concluded The -- I know the plaintiff has asked for a remand JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 18 1 with a directed finding of disability. 2 persuasive evidence of disability and I am convinced that in 3 the end, when a consultative exam is ordered and proper 4 medical evidence adduced, she will be found not to be 5 disabled, but I cannot say that there is substantial evidence 6 in the record to support the ALJ's conclusion. 7 consultative examination should have been ordered, and so I 8 will therefore grant judgment on the pleadings to the 9 plaintiff and vacate the Commissioner's determination and 10 remand for further proceedings, including scheduling of a 11 consultative examination. 12 13 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. 14 MS. McOMBER: Thank you. 15 MR. NORWOOD: You're welcome. 16 (Proceedings Adjourned, 4:07 p.m.) 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 26th day of March, 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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