Gray v. Colvin

Filing 16

ORDER: that Plaintiff's motion for judgment on the pleadings is Granted; that 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; that the matter is hereby Remanded to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination; and 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 06/12/2017. (hmr)

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

LAVONDA GRAY,
Plaintiff,
v.

Civil Action No.
3:16-CV-1292 (DEP)

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

KRISTINA D. COHN, ESQ.
JAMES DEISIR, ESQ.
Special Assistant U.S. Attorneys

1
Carolyn Colvin, the former Acting Commissioner of Security, was recently
replaced by Nancy A. Berryhill, who currently serves in that position. Because Carolyn
Colvin has been 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
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 June 5, 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:

June 12, 2017
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
LAVONDA GRAY,
Plaintiff,
vs.

3:16-CV-1292

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Digitally-Recorded Decision
held during a Telephone Conference on June 5, 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: JAMES DEISIR, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right, thank you, I'll have to let

that be the last word.
I have before me a request for judicial review of

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an adverse determination by the Acting Commissioner pursuant

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to 42 United States Code Sections 405(g) and 1383(c)(3).
The background is as follows:

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The plaintiff was

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born in December of 1968, currently she is 48 years old, she

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was 44 years old at the alleged onset of her disability.

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stands 5 foot 2 inches in height and weighs 209 pounds.

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underwent bariatric weight reduction surgery in December of

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2014.

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is right-handed, she has a GED and some college education,

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she took some online courses.

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provider and a CNA, certified nursing assistant or nurse's

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assistant.

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2013.

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worked providing child care and in private duty nursing in

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2013.

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through 2013.

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She
She

The plaintiff lives with her husband, she drives, she

She's a certified child care

She last worked in or about July or August of

She worked 22 years in a nursing home.

She also

She has worked part time as a tax preparer, 2010

Medically, the plaintiff has been diagnosed with

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fibromyalgia since 2006.

She also carries a potential

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diagnosis for regional pain syndrome and arthritis.

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borderline diabetes and has diabetic peripheral neuropathy,

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she has a right shoulder issue.

She has

MRI testing revealed a tiny

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

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partial tear in the right shoulder.

She has in the past

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complained of chest pain, although medical professionals have

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not been able to identify any etiology associated with that,

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and they believe it was probably part and parcel of the

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fibromyalgia.

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level, with no neural compression or stenosis.

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suffers from major depressive disorder, post-traumatic stress

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disorder.

She has a small disk protrusion at C5-C6
She also

She treats with Family and Child Society through

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licensed clinical social worker Esther McGurrin every two

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weeks.

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through Family Nurse Practitioner Trichelle Kirchner.

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plaintiff also treats with Dr. Dura, Dr. Paul Dura, a

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rheumatologist.

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visits to the -- I believe it was the Massena General

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Hospital.

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gabapentin, and Tizanidine.

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computer, folds laundry, and does some cooking although her

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husband does some of the cooking also since she testified

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that she drops food.

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She also treats with Lourdes Primary Care, primarily
The

She has record of several emergency room

Medications have been provided including Cymbalta,
Plaintiff reads, uses the

Procedurally, the plaintiff applied for Title II

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benefits on June 10, 2013 and Title XVI SSI payments on

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November 10, 2013.

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disability date of May 30, 2013.

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by Administrative Law Judge Marie Greener on April 27, 2015.

Both applications allege an onset
The hearing was conducted

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

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ALJ Greener issued a decision on June 15, 2015 finding that

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plaintiff was not disabled at the relevant times.

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Security Administration Appeals Council made that a final

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determination of the agency by rejecting plaintiff's request

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for review on October 13, 2016.

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The Social

In her decision, ALJ Greener applied the well-known

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five-step sequential test for determining disability.

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step one she found plaintiff had not engaged in substantial

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gainful activity since May 30, 2013, although noting that

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At

there was some work activity during the relevant time period.
At step two, she concluded that plaintiff suffers

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from fibromyalgia, herniated nucleus pulposa of the cervical

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spine without compression, right shoulder tendinitis -- I'm

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sorry, tendinosus and diabetic peripheral neuropathy,

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rejecting other conditions as not sufficiently limiting to

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qualify under step two, including depression and

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post-traumatic stress disorder.

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At step three, the ALJ concluded that plaintiff did

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not -- her conditions do not meet or medically equal any of

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the listed presumptively disabling conditions, considering

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several including 1.04, 11.14.

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Then after surveying the record evidence, the ALJ

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concluded that plaintiff is capable of performing the full

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range of light work because she can frequently lift, carry,

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push, pull 10 pounds occasionally, lift, carry, push, pull

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

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20 pounds and in an eight-hour workday can sit for six hours

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and stand/walk for six hours with normal breaks.
At step four, the ALJ concluded that with this RFC

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plaintiff is not capable of performing her past relevant work

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as a CNA or nursing assistant.
At step five, the ALJ applied the medical

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vocational guidelines or the grids, and concluded based on

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Rule 202.21 that plaintiff was not disabled at the relevant

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times.

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As you know, my task is extremely limited to

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determining whether correct legal principles were applied and

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the determination is supported by substantial evidence.

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is a highly deferential standard.

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It

Addressing first the listings, counsel has argued

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that the claimant suffered from other conditions that should

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have been recognized as severe at step two.

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was plaintiff's burden to establish the limitations

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associated with her conditions.

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the ALJ concluded that there was at least one severe

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impairment at step two and continued through the sequential

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analysis and provided that he or she then considered the

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other impairments when determining the RFC, then the failure

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to list them at step two is harmless.

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I note that it

It is clear that as long as

In any event, there was no showing, I reviewed
carefully plaintiff's brief and the evidence cited, there was

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

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no showing that plaintiff suffers from additional conditions

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that provide significant limitations to the ability to

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perform work functions.

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or equals listings, again, it was plaintiff's burden.

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Commissioner, the ALJ went through the B criteria and went,

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and considered the four domains that also apply to 14.09d at

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page 26, found no marked limitations in the three domain

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areas and no extended duration compressions.

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Also no showing that plaintiff meets
The

So again, I note that the mere diagnosis of

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fibromyalgia does not translate to symptoms.

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comes in various degrees.

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Fibromyalgia

Also, the Commissioner properly relied on the

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treatment notes, plaintiff's testimony, and Dr. Jenouri's

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consultative exam which can constitute substantial evidence

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when considering listings and severe impairments.

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The RFC, if you discount, leave aside for a moment

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Nurse Practitioner Kirchner's opinions and Dr. Dura's

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opinions, the rest of the RFC is supported by substantial

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evidence, including the lifting and sitting, standing.

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However, I agree with counsel that the ALJ failed to take

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into consideration the nature of the fibromyalgia and the

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opinions of both Nurse Practitioner Kirchner and Dr. Dura.

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The Second Circuit has noted that fibromyalgia by

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its very nature is not always readily susceptible to

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detection or verification through clinical testing or other

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

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objective means.

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Barnhart, 335 F.3d 99, Second Circuit decision from 2003.

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The Seventh Circuit similarly recognized the elusive nature

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of fibromyalgia in Sarchet v. Chater, 78 F.3d 305, that's

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Seventh Circuit decision from 1996.

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That was recognized in Green-Younger v.

Let's take Nurse Practitioner Kirchner first.

Her

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opinion was rendered prior to the ALJ's decision.

It is

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clearly inconsistent with the RFC finding.

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plaintiff would be required to take unscheduled breaks at

It opines that

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15-minute intervals for approximately one hour.

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clearly not an acceptable medical source; however, under the

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regulations, her opinions concerning the effects of her

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diagnosed conditions on her ability to perform functions is

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relevant and should have been considered and if rejected, ALJ

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Greener should have explained which parts were being rejected

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and on what basis.

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She is

The real error here is the failure to address

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Dr. Dura's opinions which admittedly came after the ALJ's

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decision, but clearly I agree with Mr. Gorton, this changes

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the landscape considerably.

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recognized in several recent cases the need to consider

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carefully the opinions that talk about absenteeism, working

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off task, and the effect on the ability to perform work

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functions and on the RFC.

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believe Mr. Gorton cited that, versus Berryhill, it's found

The Second Circuit has

Most recently in Gavazzi, I

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

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at 2017 WL 1400456.

Clearly Dr. Dura is a specialist and a

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treating source, and it would be of invaluable assistance to

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the court in making meaningful judicial review to know why it

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was being rejected, and to go through the factors, if it was

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being rejected as controlling to go through the factors to

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determine what weight, if any, it was entitled to.

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more than 15 percent but less than 20 percent off task is

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something that, if it is controlling, should have been

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included in the RFC and presented to a vocational expert.

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The ALJ recognized that plaintiff would have good days and

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bad days in her decision.

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would be absent two days per month.

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been included and presented to a vocational expert.

Clearly,

Dr. Dura also opined that she
Again, that should have

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So on that basis, I find errors and the

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determination is not supported by substantial evidence so I

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will grant judgment on the pleadings to the plaintiff.

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don't find persuasive proof of disability and so I will order

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that the matter be remanded without a directed finding of

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disability or calculation of benefits only.

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Thank you both for excellent presentations.
you have a good afternoon.

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MR. GORTON:

Thank you, your Honor.

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MR. DEISIR:

Thank you, your Honor.

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(Proceedings Adjourned, 2:35 p.m.)

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

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I hope

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

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

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Official Court Reporter in and for the United States

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District Court, Northern District of New York, DO

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HEREBY CERTIFY that I have listened to and

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transcribed the foregoing proceedings and that the

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foregoing is a true and correct transcript thereof

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to the best of my ability.

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s/Jodi L. Hibbard

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________________________________

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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]