Lynn v. Colvin

Filing 15

ORDER: It is ORDERED that Plaintiff's motion for judgment on the pleadings is GRANTED. It is further ORDERED that the Acting Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to ben efits under the Social Security Act, is VACATED. It is further ORDERED that the matter is hereby REMANDED to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. It is further ORDERED that the clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 5/26/2017. (mc)

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

GORDON LYNN,
Plaintiff,
v.

Civil Action No.
3:16-CV-1187 (DEP)

NANCY A. BERRYHILL, Acting Commissioner
of Social Security1,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
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

FERGUS J. KAISER, ESQ.
Special Assistant U.S. Attorney

Carolyn Colvin, the former Acting Commissioner of Security, who was the
originally-named defendant, 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).
1

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
Acting 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 May 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 Acting 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:
2

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.
2

1)

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

2)

The Acting 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 Acting 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 Acting Commissioner
pursuant to sentence four of 42 U.S.C. ' 405(g) and closing this case.

Dated:

May 26, 2017
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
GORDON LYNN,
Plaintiff,
vs.

16-CV-1187

NANCY A. BERRYHILL, Acting Commissioner
of Social Security Administration,
Defendant.
------------------------------------------------------x
Decision - May 24, 2017
James Hanley Federal Building, Syracuse, New York
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
1500 East Main Street
Endicott, New York 13761
BY: PETER A. GORTON, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza
New York, New York 10278
BY: FERGUS J. KAISER, ESQ.

Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
[phone]

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16-cv-1187 - Decision - 5/24/2017
THE COURT:

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I have before me a request for judicial

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review of an adverse determination by the Acting Commissioner

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of Social Security pursuant to 42, United States Code,

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

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Plaintiff was born

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in May of 1983 and today turns 34.

Happy birthday.

He was

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32 at the time of the hearing in this matter and 30 at the

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time of his application for benefits.
Plaintiff lives in Appalachian with his grandmother

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and his sister.

He graduated high school with an IEP

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diploma.

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he has children.

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had one child who was removed by child protective services in

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2005, but in his meeting with Dr. Lumina at page 461 he

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denied having children.

There is some confusion in the record as to whether
There is a reference at page 389 that he

In 2012 the plaintiff attended truck driver school

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and achieved a CDL license.

He also has a driver's license.

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He is not, however, medically cleared currently to drive

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commercially.
Plaintiff last worked September through December 1

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of 2014.

He has worked in various capacities casually and an

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assembly line position, which he stopped due to back issues.

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He has driven 18 wheeler trucks.

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food environment.

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driver.

He has operated in a fast

He has performed maintenance and as a taxi

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16-cv-1187 - Decision - 5/24/2017

Plaintiff was sentenced to prison and served time

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from 2006 to 2010 for passing bad checks.

He also has an

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extensive juvenile delinquent record and a history of arrest

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for fraud, assault, harassment and resisting arrest.
Medically he suffers from several physical and

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mental impairments.

Physically he suffers from severe

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hypertension with organ damage that has led him to experience

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migraines, has lumbar disc disease, asthma and obesity.
Mentally he has a history of attention deficit and

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hyperactivity disorder, or ADHD, and intermittent explosive

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disorder.

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disorder, episodic depressive disorder, personality disorder,

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and social anxiety.

He has also been diagnosed at times with bipolar

In 2002 he was hospitalized with suicidal ideation.

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He has also a history of expressing homicidal ideation.

He

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was diagnosed by Dr. Loomis, the consultative examiner,

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suffering from a mood disorder not otherwise specified, or

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NOS, ADHD, social anxiety, and personality disorder not

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otherwise specified with antisocial features.

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Procedural history is as follows.

Plaintiff

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applied for Supplemental Security Income payments on

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August 22nd, 2013, alleging an onset disability date of May

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25, 2013.

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Administrative Law Judge John Ramos.

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adjourned in order to permit plaintiff to obtain counsel.

The hearing was conducted on April 11, 2015 by
An earlier hearing was

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16-cv-1187 - Decision - 5/24/2017
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On September 3, 2013 Administrative Law Judge Ramos

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issued an unfavorable decision.

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determination of the Agency on September 15, 2016 when the

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Social Security Administration Council denied plaintiff's

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request for review.

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That decision became a final

In his decision ALJ Ramos applied the five step

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well-known sequential test for determining disability.

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will note that ALJ Ramos's decision is extremely

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comprehensive.

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I

At step one he determined that plaintiff was not

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engaged in substantial gainful activity since the date of his

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application, even though he did receive some income during

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that period.

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At step two he concluded that plaintiff suffers

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from severe impairments, including degenerative disc disease

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of the lumbar spine, hypertension, headaches and migraines,

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obesity, mood disorder, social anxiety disorder, and

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personality disorder.

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He concluded, however, that those impairments did

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not rise to a level sufficient to meet or medically equal the

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listings of presumptively disabling conditions as set forth

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in the Commissioner's regulations, considering several,

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including 1.02, 1.04, 14.09, 11.00, 1.00 and 14.00.

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went through, among other things, the examination of the B

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criteria of the mental limitations of 12.02, 12.04, 12.05,

And he

16-cv-1187 - Decision - 5/24/2017
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12.06 and 12.08.
He then engaged in the requisite two-step

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credibility analysis and explained his reasoning for not

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fully crediting plaintiff's reports of symptomology.
After reviewing the medical evidence, ALJ Ramos

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concluded that plaintiff retains the capacity to perform

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sedentary work with limitations.

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exclusively, he found that plaintiff retains the ability to

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understand and follow simple instructions and directions, can

Significantly, but not

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perform simple and some complex tasks with supervision and

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independently, can maintain attention/concentration for

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simple and some complex tasks, can regularly attend to a

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routine and maintain a schedule, can relate to and interact

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with others to the extent necessary to carry out simple

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tasks, but should avoid work requiring more complex

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interaction or joint effort to achieve work goals, and can

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handle reasonable levels of simple work-related stress in

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that he can make simple decisions directly related to the

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completion of his tasks and handle usual workplace changes or

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interactions associated with simple work.
Applying that RFC at step four, ALJ Ramos concluded

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the plaintiff did not have any significant past relevant

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work.

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And proceeded to step five where he concluded that
the Medical-Vocational Guidelines set forth in the

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16-cv-1187 - Decision - 5/24/2017
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regulations, or grids, specifically Rule 201.27, directed a

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finding of no disability and finding it unnecessary to resort

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to the testimony of a vocational expert in order to carry the

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Commissioner's burden at step five.
As you know, my task is extremely limited.

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I must

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determine whether correct legal principles were applied and

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the determination is supported by substantial evidence.
The focus of plaintiff's arguments clearly are on

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non-exertional limitations associated with plaintiff's mental

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conditions.

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the record, as we've discussed; the opinions and report of

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Dr. Cheryl Loomis of her October 2, 2013 examination of the

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plaintiff, and Dr. Kamin's report authored on October 31,

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2013.

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There are two key pieces of medical evidence in

Dr. Loomis gave the diagnoses that I just mentioned

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a moment ago.

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concluded that claimant exhibited moderate impairment in his

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ability to maintain a regular schedule and relate adequately

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to others, and marked impairment in his ability to make

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appropriate decisions and appropriately deal with stress.

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Dr. Loomis' opinions were accorded great weight by the

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Administrative Law Judge at page 32 of the Administrative

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Transcript.

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And as we've been discussing, significantly

Dr. Kamin went through the psychiatric review
technique directed toward whether or not any of the listings

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16-cv-1187 - Decision - 5/24/2017
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were satisfied and did not perform a functional capacity

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analysis.

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In my view, the Commissioner erred in not according

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weight and rejecting Dr. Loomis' statements concerning the

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marked impairment in plaintiff's ability to make

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appropriately decisions and appropriately deal with stress.

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SSR 85-15 makes it clear that the ability to handle the

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demands of work is highly individualized.

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the following statement:

SSR 85-15 makes

"Because response to the demands of

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work is highly individualized, the skill level of a position

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is not necessarily related to the difficulty an individual

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will have in meeting the demands of the job.

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condition may make performance of an unskilled job as

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difficult as an objectively more demanding job."

A claimant's

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In other words, it is not sufficient, in my view,

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to include in the RFC to limit the claimant to simple tasks

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and unskilled work to address the marked impairment in the

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plaintiff's ability to make appropriate decisions and

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appropriately deal with stress.

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As the Commissioner candidly has noted, while ALJ

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Ramos makes the statement that Dr. Kamin determined claimant

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is capable of performing the basic mental demands of

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unskilled work, despite his multiple disorders, that

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statement was not made and it's not supported by the record.

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I note that the ALJ also failed to consider

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16-cv-1187 - Decision - 5/24/2017
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plaintiff's moderate limitation in his ability to adequately

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relate to others.

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Administrative Law Judge Ramos says that this is at best a

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mild limitation.

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of Dr. Loomis' opinions as well as the documented history of

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the plaintiff's homicidal ideations, outbursts, his explosive

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disorder, and so I find error there.

And in the area of social functioning,

That's at page 34.

That flies in the face

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I do not find error with regard to concentration,

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persistence and pace, because Dr. Loomis concludes there is

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no impairment in that domain or in that area.

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there was, according to Dr. Loomis, a moderate impairment in

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plaintiff's ability to maintain a regular schedule.

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in this case concludes that plaintiff would have no

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impairment in his ability to maintain a regular schedule.

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That does not draw the support of substantial evidence and a

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moderate impairment in my view in the ability to maintain a

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regular schedule needs to be, A, fleshed out, and B,

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addressed by a vocational expert at step five to determine

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whether there is work that plaintiff can perform despite this

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moderate impairment.

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But again,

The RFC

At step five obviously the burden rests with the

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Commissioner.

SSR 96-9p indicates that a substantial loss in

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making simple work-related decisions and responding

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appropriately to supervisors, co-workers and usual work

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situations, and dealing with changes in routine work settings

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16-cv-1187 - Decision - 5/24/2017
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will substantially erode the unskilled sedentary occupational

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base on which the grids are predicated.

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So I find that the RFC determination of the

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Commissioner is not supported by substantial evidence, and

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that at step five in order to carry her burden, the

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Commissioner should have elicited the testimony of a

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vocational expert.

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evidence of disability such that a remand limited to

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calculation of benefits is warranted.

I do not, however, find persuasive

I think that this

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matter needs to be remanded for further consideration

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consistent with this decision.

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So I will award judgment on the pleadings to the

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plaintiff without a directed finding of disability, vacate

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the Commissioner's determination and remand the matter for

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further proceedings.

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attaching a transcript of this decision.

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I'll issue an order to this effect

Thank you both for excellent presentations.

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Interesting case.

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C E R T I F I C A T I O N

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official
Realtime Court Reporter, in and for the United States
District Court for the Northern District of New York,
do hereby certify that pursuant to Section 753, Title 28,
United States Code, that the foregoing is a true and correct
transcript of the stenographically reported proceedings held
in the above-entitled matter and that the transcript page
format is in conformance with the regulations of the
Judicial Conference of the United States.

________________________________
EILEEN MCDONOUGH, RPR, CRR
Federal Official Court Reporter