Webb v. Colvin

Filing 15

ORDER. 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 not entitled to benefits under the Social Security Act, is VACATED. The matter is hereby REMANDED to the Commissioner, with a direct finding of disability, for the purpose 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 U.S.C. 405(g) and closing the case. Signed by Magistrate Judge David E. Peebles on 2/28/2017. (dpk)

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

WILLIAM WEBB,
Plaintiff,
v.

Civil Action No.
3:16-CV-0338 (DEP)

NANCY A. BERRYHILL, 1 Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
LACHMAN, GORTON LAW FIRM
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089

PETER A. GORTON, 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

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PRASHANT TAMASKAR, ESQ.
Special Assistant U.S. Attorney

Carolyn Colvin, the former Acting Commissioner of Security who was named as
the defendant in plaintiff's complaint, was recently replaced by Nancy A. Berryhill, who
currently serves in that position. Because Carolyn Colvin was sued only in her official
capacity, Nancy A. Berryhill has been automatically substituted for Carolyn Colvin as the
named defendant. See Fed. R. Civ. 25(d).

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
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) and 1383(c)(3), are
cross-motions for judgment on the pleadings. 2 Oral argument was
conducted in connection with those motions on February 24, 2017 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
ORDERED, as follows:
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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. Under that General Order once issue has been joined, an action such as
this is considered procedurally, 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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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
sentence four of 42 U.S.C. ' 405(g) and closing this case.

Dated:

February 28, 2017
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
WILLIAM WEBB,
Plaintiff,
vs.

3:16-CV-338

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on February 24, 2017, 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:

LACHMAN, GORTON LAW FIRM
Attorneys at Law
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089.
BY: PETER A. GORTON, ESQ.

For Defendant:

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

Jodi L. Hibbard, RPR, CSR, CRR
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:

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All right.

Thank you both for

excellent and spirited presentations.
I have before me a request for judicial review of

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an adverse determination by the Commissioner under 42 United

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States Code Sections 405(g) and 1383(c)(3).
The background is as follows:

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Plaintiff was born

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in October of 1983 and is currently 30 -- 33 years old?

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Let's see.

October, so he is, yes, 43 years old -- sorry,

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no, 33.

He was born -- he is 5-foot-9 and 180 pounds.

He

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has an eighth-grade education, he dropped out in ninth grade.

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He was in regular education courses while at school, he's not

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achieved a GED.

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Plaintiff has a history of alcohol abuse but has not consumed

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alcohol since 2008 when he was hospitalized for alcohol

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poisoning, that's at 321.

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history, a drug conviction of 2004.

He's right-hand dominant and does not drive.

Plaintiff has some modest criminal

Plaintiff has never worked on a full-time basis.

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He's quit several jobs, allegedly due to anxiety.

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barber at one point.

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driver helper, that's at 236.

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seizures.

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He was a

He last worked in 2005 as a furniture
He quit as a barber due to

His primary care physician is Dr. Aranda.

He also

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has seen several others for his seizure issues.

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correctly noted, he -- there is a chronicled history of both

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

As counsel

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petit and grand mal seizures with tongue biting.

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underwent some testing which confirmed the presence of the

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seizures.

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had to be pulled out of the river by a friend, that's at 303,

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305 and 46.

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in time that I listed, April of 2014, has characterized these

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seizures as poorly controlled, also at -- not well controlled

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in 2015, that's at 1107 and 1117.

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He

In 2008 he suffered a seizure, nearly drowned and

Dr. Aranda at several points including the point

The plaintiff underwent EEG testing in April of

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2008, showed irregularities.

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emergency room with a grand mal seizure, that's at 629, and

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in June of 2011, again went to the emergency room with

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seizures, that's at 673.

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having anxiety and/or panic disorder with or without

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agoraphobia and also on occasion been diagnosed as having

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major depressive disorder.

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a link between the mental condition and his seizure disorder

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including at 1158.

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In February of 2011 went to the

He's been diagnosed by some as

There is at least a suspicion of

In terms of daily activities, he plays video games,
watches television.

He does not, however, like crowds.

This case has had a tortured procedural history.

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The application for benefits was first made in

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September 2008, alleging an onset date of January 1, 2006.

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hearing was conducted by Administrative Law Judge Marie

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Greener on March 23, 2010.

A

ALJ Greener issued an unfavorable

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

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decision on April 29, 2010, and the Social Security

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Administration Appeals Council denied plaintiff's request for

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review on December 17, 2010.

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commenced on January 26, 2011 in this court seeking judicial

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review.

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Circuit was perfected or it was filed, on consent, and the

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matter was remanded on March 14, 2013.

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Administration Appeals Council then issued a decision on

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July 30, 2013, implementing the remand back to an ALJ.

The matter -- an action was

The matter was remanded once an appeal at the Second

The Social Security

ALJ Greener conducted a second hearing on April 17,

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2014.

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August 18, 2014.

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on October 21, 2014 by the plaintiff seeking judicial review.

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Again, the matter was remanded on consent on June 3, 2015.

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On June 11, 2015, the Appeals Council issued an order

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remanding the matter and directing that it be reassigned to a

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new administrative law judge.

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She issued a decision, again unfavorable, on
A second action was commenced in this court

On December 22, 2015 a supplemental hearing was

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conducted by Administrative Law Judge John P Ramos.

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January 14, 2016, ALJ Ramos issued a decision, again

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unfavorable.

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On

In his decision, Administrative Law Judge Ramos

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applied the now familiar five-step test for determining

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disability, concluding that plaintiff had not engaged in

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substantial gainful activity since September 19, 2008; at

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

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step 2, concluded that the plaintiff suffers from a seizure

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disorder, and a herniated nucleus pulposus, but rejected

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the -- any other disorders including alcohol abuse and

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anxiety disorder as being sufficiently severe at step 2.

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plaintiff -- the ALJ did notice, did note plaintiff's EEG

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from December 15, 2009 and from April 2008 confirming the

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existence of irregular activity, also from July 13, an EEG.

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At step 3, the ALJ concluded that the plaintiff's

The

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conditions were not sufficiently severe as to satisfy the

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listed presumptively disabling conditions set forth in the

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Commissioner's regulations, and specifically examined 11.02

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and 11.03, as well as 1.04.

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The ALJ then surveyed the available medical

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evidence and concluded that the plaintiff retains the

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residual functional capacity to perform sedentary work and

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went through what sedentary work is, except that he cannot

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operate hazardous equipment such as cutting tools or

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machinery with unprotected moving parts, cannot drive for

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business purposes, and cannot work at unprotected heights or

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around water such as swimming pools, lakes, or rivers.

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addition, he can only occasionally reach in all planes,

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handle, finger, push/pull with either upper extremity/hand

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and cannot operate foot controls with either lower extremity.

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In

At step 4, applying that RFC, the ALJ concluded
plaintiff had no past relevant work.

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

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At step 5, the administrative law judge concluded

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that if the plaintiff was able to perform a full range of

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sedentary work, a finding of no disability would be directed

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by Medical Vocational Guideline Rule 201.24 but he concluded

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that the additional limitations set forth in the RFC eroded

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the job base on which the grids were predicated and therefore

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elicited testimony of a vocational expert and concluded based

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on that testimony that there were two positions that

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plaintiff could perform, notwithstanding his limitations,

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including as a surveillance system monitor and a call-out

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operator, and concluded therefore that the plaintiff is not

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disabled.

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As you know, my task is limited to determining

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whether correct legal principles were applied and substantial

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evidence supports the determination.

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is extremely limited, and deferential.

The standard of review

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At step 2, the step 2 determination is intended to

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eliminate only those limitations, those conditions that have

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no more than a minimal effect on the ability to work.

It's

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intended to screen out frankly only de minimus claims.

The

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record in this case is replete with record entries that the

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plaintiff suffers from anxiety and panic disorder.

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appears to be linked in some way to his seizures.

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indicated, even the report of Dr. Long whose report was given

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substantial -- considerable weight, I should say, by the

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

It
As counsel

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administrative law judge, suggests that the plaintiff,

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plaintiff's ability to perform work activities is impaired by

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the mental limitations.

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results of the present evaluation appear to be consistent

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with psychiatric problems which may interfere with Mr. Webb's

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ability to function on a regular basis."

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as suffering from generalized anxiety disorder and panic

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disorder without agoraphobia.

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At page 240, she states, "The

She diagnosed him

As I also indicated, the report from December 1,

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2008 of P. Kudler, K-u-d-l-e-r, at 265, reflects that

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claimant may have difficulties doing complex detailed tasks

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due to anxiety.

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of people and would probably work best in a low-contact

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environment.

He also states he has difficulty with crowds

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So these and the many other reports that speak to

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the mental limitations satisfy me that it was error for the

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administrative law judge not to include plaintiff's mental

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conditions at step 2.

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opines that plaintiff is only able to work a 20-hour workweek

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with reasonable accommodations.

I also note that Dr. Moore at page 325

So I find that is error.

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Dr. Russell indicated plaintiff cannot work due to

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panic disorder and agoraphobia which is quite severe, that's

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at 306, and assesses a GAF of 45.

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indicates, among other things, serious impairment in social,

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occupational, or school functioning.

GAF of 45 of course

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

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This error is not harmless.

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It's prejudicial

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because it was not included in the RFC finding, and therefore

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not included in the hypothetical that was given to the

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vocational expert and which the step 5 determination is

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predicated.
The RFC also again is infected, Dr. Russell

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assigned that GAF of 45, there's another indication of a GAF

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of 50.

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50 percent, that's at 325.

Dr. Moore indicated plaintiff cannot function,
Dr. Aranda said he would be off

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task more than 30 percent -- 33 percent of the time, that's

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at 834.

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8 to 15 percent off task would not be acceptable.

The vocational expert testified that anything above

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It's clear also that the RFC does not fully take

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into consideration the plaintiff's seizures, the extent of

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the seizures, and his post-seizure symptoms and the effect it

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would have on absenteeism.

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With regard to medical opinions, again, all of the

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people that examined, the professionals that examined and/or

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treated plaintiff essentially said that he's unable to work.

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Dr. Aranda, 835; Dr. Magurno, 330; Dr. Moore, 326;

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Dr. Russell, 306.

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individual, Dr. Devere, to counter that.

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the strict opinion about ability to work is a matter reserved

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to the Commissioner, but if you read those opinions,

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especially Dr. Aranda, the objective components of those

And the ALJ relied on a nonexamining

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

I understand that

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clearly are inconsistent with the ability to perform

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work-related functions.
I think also that Dr. Aranda's opinions were

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entitled to controlling weight in that there's an

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insufficient explanation for rejection, didn't take into

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account the lengthy relationship, the treating relationship

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between Dr. Aranda, the number of times that he treated.

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opinion is supported by medical evidence and it's consistent

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with other opinions including Dr. Kudler, Dr. Long,

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The

Dr. Russell, and Dr. Moore.
So the step 5, I find that the step 5 determination

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is infected by all of these errors.

I am going to grant

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judgment on the pleadings to the plaintiff.

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particularly given the tortured history, the length of time

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it's been pending, and the fact that I believe the record

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convincingly establishes that the plaintiff is disabled, I am

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going to remand with a directed finding of disability for the

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purpose of calculating benefits.

In this case,

Again, thank you both for excellent presentations,

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I hope you have a good afternoon.

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weather.

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MR. GORTON:

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MR. TAMASKAR:

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Go out and enjoy our nice

Thank you your Honor.
Thank you, your Honor.

(Proceedings Adjourned, 3:10 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 24th day of February, 2017.

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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]