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)

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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. ยงยง 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 3 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 2 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 3 All right, thank you, I'll have to let that be the last word. I have before me a request for judicial review of 4 5 an adverse determination by the Acting Commissioner pursuant 6 to 42 United States Code Sections 405(g) and 1383(c)(3). The background is as follows: 7 The plaintiff was 8 born in December of 1968, currently she is 48 years old, she 9 was 44 years old at the alleged onset of her disability. 10 stands 5 foot 2 inches in height and weighs 209 pounds. 11 underwent bariatric weight reduction surgery in December of 12 2014. 13 is right-handed, she has a GED and some college education, 14 she took some online courses. 15 provider and a CNA, certified nursing assistant or nurse's 16 assistant. 17 2013. 18 worked providing child care and in private duty nursing in 19 2013. 20 through 2013. 21 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 22 fibromyalgia since 2006. She also carries a potential 23 diagnosis for regional pain syndrome and arthritis. 24 borderline diabetes and has diabetic peripheral neuropathy, 25 she has a right shoulder issue. She has MRI testing revealed a tiny JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 3 1 partial tear in the right shoulder. She has in the past 2 complained of chest pain, although medical professionals have 3 not been able to identify any etiology associated with that, 4 and they believe it was probably part and parcel of the 5 fibromyalgia. 6 level, with no neural compression or stenosis. 7 suffers from major depressive disorder, post-traumatic stress 8 disorder. She has a small disk protrusion at C5-C6 She also She treats with Family and Child Society through 9 10 licensed clinical social worker Esther McGurrin every two 11 weeks. 12 through Family Nurse Practitioner Trichelle Kirchner. 13 plaintiff also treats with Dr. Dura, Dr. Paul Dura, a 14 rheumatologist. 15 visits to the -- I believe it was the Massena General 16 Hospital. 17 gabapentin, and Tizanidine. 18 computer, folds laundry, and does some cooking although her 19 husband does some of the cooking also since she testified 20 that she drops food. 21 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 22 benefits on June 10, 2013 and Title XVI SSI payments on 23 November 10, 2013. 24 disability date of May 30, 2013. 25 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 (315) 234-8547 4 1 ALJ Greener issued a decision on June 15, 2015 finding that 2 plaintiff was not disabled at the relevant times. 3 Security Administration Appeals Council made that a final 4 determination of the agency by rejecting plaintiff's request 5 for review on October 13, 2016. 6 The Social In her decision, ALJ Greener applied the well-known 7 five-step sequential test for determining disability. 8 step one she found plaintiff had not engaged in substantial 9 gainful activity since May 30, 2013, although noting that 10 11 At there was some work activity during the relevant time period. At step two, she concluded that plaintiff suffers 12 from fibromyalgia, herniated nucleus pulposa of the cervical 13 spine without compression, right shoulder tendinitis -- I'm 14 sorry, tendinosus and diabetic peripheral neuropathy, 15 rejecting other conditions as not sufficiently limiting to 16 qualify under step two, including depression and 17 post-traumatic stress disorder. 18 At step three, the ALJ concluded that plaintiff did 19 not -- her conditions do not meet or medically equal any of 20 the listed presumptively disabling conditions, considering 21 several including 1.04, 11.14. 22 Then after surveying the record evidence, the ALJ 23 concluded that plaintiff is capable of performing the full 24 range of light work because she can frequently lift, carry, 25 push, pull 10 pounds occasionally, lift, carry, push, pull JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 5 1 20 pounds and in an eight-hour workday can sit for six hours 2 and stand/walk for six hours with normal breaks. At step four, the ALJ concluded that with this RFC 3 4 plaintiff is not capable of performing her past relevant work 5 as a CNA or nursing assistant. At step five, the ALJ applied the medical 6 7 vocational guidelines or the grids, and concluded based on 8 Rule 202.21 that plaintiff was not disabled at the relevant 9 times. 10 As you know, my task is extremely limited to 11 determining whether correct legal principles were applied and 12 the determination is supported by substantial evidence. 13 is a highly deferential standard. 14 It Addressing first the listings, counsel has argued 15 that the claimant suffered from other conditions that should 16 have been recognized as severe at step two. 17 was plaintiff's burden to establish the limitations 18 associated with her conditions. 19 the ALJ concluded that there was at least one severe 20 impairment at step two and continued through the sequential 21 analysis and provided that he or she then considered the 22 other impairments when determining the RFC, then the failure 23 to list them at step two is harmless. 24 25 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 (315) 234-8547 6 1 no showing that plaintiff suffers from additional conditions 2 that provide significant limitations to the ability to 3 perform work functions. 4 or equals listings, again, it was plaintiff's burden. 5 Commissioner, the ALJ went through the B criteria and went, 6 and considered the four domains that also apply to 14.09d at 7 page 26, found no marked limitations in the three domain 8 areas and no extended duration compressions. 9 Also no showing that plaintiff meets The So again, I note that the mere diagnosis of 10 fibromyalgia does not translate to symptoms. 11 comes in various degrees. 12 Fibromyalgia Also, the Commissioner properly relied on the 13 treatment notes, plaintiff's testimony, and Dr. Jenouri's 14 consultative exam which can constitute substantial evidence 15 when considering listings and severe impairments. 16 The RFC, if you discount, leave aside for a moment 17 Nurse Practitioner Kirchner's opinions and Dr. Dura's 18 opinions, the rest of the RFC is supported by substantial 19 evidence, including the lifting and sitting, standing. 20 However, I agree with counsel that the ALJ failed to take 21 into consideration the nature of the fibromyalgia and the 22 opinions of both Nurse Practitioner Kirchner and Dr. Dura. 23 The Second Circuit has noted that fibromyalgia by 24 its very nature is not always readily susceptible to 25 detection or verification through clinical testing or other JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 7 1 objective means. 2 Barnhart, 335 F.3d 99, Second Circuit decision from 2003. 3 The Seventh Circuit similarly recognized the elusive nature 4 of fibromyalgia in Sarchet v. Chater, 78 F.3d 305, that's 5 Seventh Circuit decision from 1996. 6 That was recognized in Green-Younger v. Let's take Nurse Practitioner Kirchner first. Her 7 opinion was rendered prior to the ALJ's decision. It is 8 clearly inconsistent with the RFC finding. 9 plaintiff would be required to take unscheduled breaks at It opines that 10 15-minute intervals for approximately one hour. 11 clearly not an acceptable medical source; however, under the 12 regulations, her opinions concerning the effects of her 13 diagnosed conditions on her ability to perform functions is 14 relevant and should have been considered and if rejected, ALJ 15 Greener should have explained which parts were being rejected 16 and on what basis. 17 She is The real error here is the failure to address 18 Dr. Dura's opinions which admittedly came after the ALJ's 19 decision, but clearly I agree with Mr. Gorton, this changes 20 the landscape considerably. 21 recognized in several recent cases the need to consider 22 carefully the opinions that talk about absenteeism, working 23 off task, and the effect on the ability to perform work 24 functions and on the RFC. 25 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 (315) 234-8547 8 1 at 2017 WL 1400456. Clearly Dr. Dura is a specialist and a 2 treating source, and it would be of invaluable assistance to 3 the court in making meaningful judicial review to know why it 4 was being rejected, and to go through the factors, if it was 5 being rejected as controlling to go through the factors to 6 determine what weight, if any, it was entitled to. 7 more than 15 percent but less than 20 percent off task is 8 something that, if it is controlling, should have been 9 included in the RFC and presented to a vocational expert. 10 The ALJ recognized that plaintiff would have good days and 11 bad days in her decision. 12 would be absent two days per month. 13 been included and presented to a vocational expert. Clearly, Dr. Dura also opined that she Again, that should have 14 So on that basis, I find errors and the 15 determination is not supported by substantial evidence so I 16 will grant judgment on the pleadings to the plaintiff. 17 don't find persuasive proof of disability and so I will order 18 that the matter be remanded without a directed finding of 19 disability or calculation of benefits only. 20 21 Thank you both for excellent presentations. you have a good afternoon. 22 MR. GORTON: Thank you, your Honor. 23 MR. DEISIR: Thank you, your Honor. 24 (Proceedings Adjourned, 2:35 p.m.) 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 I I hope 1 C E R T I F I C A T I O N 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, 5 Official Court Reporter in and for the United States 6 District Court, Northern District of New York, DO 7 HEREBY CERTIFY that I have listened to and 8 transcribed the foregoing proceedings and that the 9 foregoing is a true and correct transcript thereof 10 to the best of my ability. 11 12 13 14 15 16 17 s/Jodi L. Hibbard 18 ________________________________ 19 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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