O'Grady v. Berryhill

Filing 19

ORDER that pltf's motion for judgment on the pleadings is GRANTED; the Acting Commissioner's determination that pltf was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED; The matter is hereby REMANDED to the Acting Commissioner, with a directed finding of disability, for the purpose of calculating benefits owing to the pltf; and 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 1/11/2018. (see)

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

TIFFANY O'GRADY,
Plaintiff,
v.

Civil Action No.
3:17-CV-0384 (DEP)

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

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
GORTON LAW OFFICE
1500 E. Main Street
P.O. Box 89
Endicott, NY 13760

PETER A. GORTON, ESQ.

FOR DEFENDANT:
HON. GRANT C. JAQUITH
U.S. Attorney for the
Northern District of New York
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

VERNON NORWOOD, ESQ.
Special Assistant U.S. Attorney

ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Acting Commissioner, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), are
cross-motions for judgment on the pleadings.1 Oral argument was
conducted in connection with those motions on January 10, 2018, 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:
(1)

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

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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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(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,

with a directed finding of disability, for the purpose of calculating benefits
owing to the plaintiff.
(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:

January 11, 2018
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
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TIFFANY O'GRADY,

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vs.

3:17-CV-384

NANCY A. BERRYHILL, Commissioner of Social
Security.

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Transcript of a Decision on January 10, 2018, at the
James Hanley Federal Building, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United
States Magistrate Judge, Presiding.

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A P P E A R A N C E S:
(by telephone)

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For the Plaintiff:

LACHMAN & GORTON LAW OFFICE
P.O. Box 89
1500 East Main Street
Endicott, New York 13761
BY: PETER A. GORTON, ESQ.

For the Defendant:

SOCIAL SECURITY ADMINISTRATION
26 Federal Plaza
Room 3904
New York, New York 10278
BY: VERNON NORWOOD, ESQ.

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Hannah F. Cavanaugh
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

Decision

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(Time noted:

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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10:21 a.m.)

All right.

I have before me a request

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for judicial review of an adverse determination by the Acting

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Commissioner pursuant to 42 United States Code Sections 405(g)

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and 1383(c)(3).

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The background is as follows:

Plaintiff was born in

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April of 1988, is currently 29 years old.

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at least in June of 2016, weighed 243 pounds.

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She is 5'5" tall and,
She has been

characterized as being obese.
She has a ninth grade education and no GED.

While in

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school, she attended regular classes.

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student, but dropped out at age 14 and moved in with her

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boyfriend and his mother.

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She was generally a good

It's unclear where she currently lives at the time.

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At one point, she lived in Binghamton, but she may have moved

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out of state to North Carolina.

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Plaintiff last worked for one year in a Dell call

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center either one year or two years.

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administrative transcript it's listed as June 2007 to

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February 2008.

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worked in a fast food setting at a Kentucky Fried Chicken and in

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another call center in Florida.

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At one point in the

She was fired for absenteeism.

She has also

Plaintiff suffers from both physical and mental
impairments.

She suffers back pain and has been treated by

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

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Dr. Sae -- S-A-E-J-O-U-N, Park.

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orthopedic specialist, Dr. Kamlesh, K-A-M-L-E-S-H, Desai,

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D-E-S-A-I.

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mild pelvic obliquity, but her disc spacing appears to be

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maintained and there's no evidence of subluxation.

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She was also referred to an

She's been diagnosed as having lumbar scoliosis with

She underwent MRI testing back in 2007 that showed

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mild facet arthropathy and synovitis at L3-L4 and L5-S1, but

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with no compressive discopathy.

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diagnosed, at least at one point by her treating physician,

The plaintiff has been

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Dr. Park, as having fibromyalgia.

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administrative transcript.

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That's at 835 in the

Mentally, plaintiff has been seen and treated by

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Dr. Park, as well as by the Broome County Mental Health

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professionals where she has seen Dr. M-A-H-F-U-Z-U-R, Rahman,

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R-A-H-M-A-N, and Licensed Clinical Social Worker or LCSW

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Melanie Hertzog.

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December of 2008 by Dr. Robert Russell.

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She was also evaluated psychologically in

She's been variously diagnosed as having dysthymic

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disorder, schizoaffective disorder of a bipolar type, and rule

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out PTSD.

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functioning or GAF scores are between 50 and 60 at various

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times.

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She's been assessed -- global assessment of

Plaintiff also testified and claims that she

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experiences seizures, although she has not pressed the seizures

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as a basis for a finding of disability.

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

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I note that, as an aside note, that a review of

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plaintiff's mental health treatment and physical treatment

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records reveal a pattern of no shows or call-ins, including at

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493 to 495 with regard to her mental health record and

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Exhibit 30F, Dr. Park's records.

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Plaintiff has variously been prescribed Ambien for

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sleep, Tramadol, Seroquel, Soma, a nose spray, Claritin, Lyrica,

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Suboxone, Neurontin, and Klonopin.

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and one and a half packs of cigarettes a day.

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She smokes between a half
That's at 447,

370, and 810 of the administrative transcript.
In terms of daily activities, she's able to dress and

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bathe and groom herself.

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although needs assistance with lifting.

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assistance.

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and she enjoys drawing and painting.

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She cooks, cleans, does some laundry,
She can shop with

Watches television, listens to the radio, reads,

As Mr. Gorton alluded to, this case has had a

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tortured procedural history.

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benefits in July of 2009 for disability benefits and SSI

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payments alleging an onset date of February 15, 2008.

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Plaintiff first applied for

A hearing was conducted by Administrative Law Judge

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Bruce Fein, F-E-I-N, on December 1, 2010.

ALJ Fein issued an

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unfavorable decision on March 10, 2011.

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vacated on July 30, 2012, by the Social Security Administration

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Appeals Council and the matter was remanded with specific

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instructions, including the requirement to call a vocational

That determination was

HANNAH F. CAVANAUGH, Official Court Reporter
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expert to testify.

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A second hearing was conducted on April 5, 2013, by

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ALJ Fein.

A second decision, also unfavorable, was issued on

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August 29, 2013.

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denied plaintiff's request for a review making that a final

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determination of the agency.

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On December 17, 2014, the Appeals Council

On January 28, 2015, plaintiff filed an action in

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this court, civil action number 15-CV-104.

After full briefing

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and argument, a decision was issued vacating the determination

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or remanding the matter for further consideration.

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October 13, 2015.

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That was on

The -- on February 23, 2016, the Appeals Council

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directed that the matter be reassigned to a new Administrative

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Law Judge.

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conducted by Administrative Law Judge Elizabeth Koennecke,

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K-O-E-N-N-E-C-K-E, on October 31, 2016.

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decision on December 8, 2016.

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In her decision, ALJ Koennecke applied the familiar five-step

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sequential test for determining disability.

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Based upon the Court's remand, a hearing was

ALJ Koennecke issued a

This action was then commenced.

At step one, she found that plaintiff had not engaged
in substantial gainful activity since her alleged onset date.
At step two, she concluded that plaintiff suffers

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from severe conditions, including a mental impairment and a back

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impairment and obesity.

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At step three, she concluded that plaintiff's

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

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conditions did not meet or medically equal any of the listed

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presumptively disabling conditions.

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1.04 and 12.04.

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She considered listings

After surveying the available medical records,

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ALJ Koennecke concluded that plaintiff retains the residual

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functional capacity or RFC to lift and/or carry ten pounds

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occasionally and less than ten pounds frequently for six hours

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in an eight-hour workday, stand and/or walk for six hours in an

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eight-hour workday, and occasionally perform all postural

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activities, basically sedentary work with additional

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limitations, addressing primarily her mental issues.

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at page 580 of the administrative transcript.

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And that's

At page -- at step four, ALJ Koennecke concluded

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plaintiff cannot perform her past relevant work based on that

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RFC finding.

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guidelines or the grids were applied, plaintiff's condition

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would not be disabling applying Rule 201.24, the ALJ, relying on

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the vocational expert's testimony, concluded the plaintiff is

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able to perform the functions of an order clerk, food and

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beverage addresser, and waxer, and that there were sufficient

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numbers of those jobs in the national economy to be significant

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and, therefore, found that plaintiff was not disabled at the

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relevant times.

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After noting that if the medical vocational

As you know, my task is limited to determining
whether correct legal principals were applied and the

HANNAH F. CAVANAUGH, Official Court Reporter
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determination is supported by substantial evidence.

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reviewed the matter extremely carefully, I am left with a firm

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belief that the process followed lacked fundamental fairness,

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that correct legal principals were not applied, and substantial

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evidence does not support the ALJ's findings.

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After I

I was very disappointed when I compared the decision

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of ALJ Koennecke, who I have a great deal of respect for, to the

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prior decisions of ALJ Fein, and concluded that and found that

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literally large blocks of the -- of the prior decisions were

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lifted and copied exactly.

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substantively or otherwise that ALJ Koennecke conducted the kind

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of de novo searching/review that was contemplated by the Court

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and by the Appeals Council.

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It didn't convince me either

The vast majority of page 579 is copied from

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ALJ Fein's decision.

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from ALJ Fein's decision.

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ALJ Fein's decision.

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almost entirely copied and is not accurate, including the second

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and third paragraphs are not accurate.

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completely, with one small paragraph, copied from the prior

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decision.

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almost totally copied from the decision.

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580, about half of the lines are directly
581, about two-thirds is lifted from

582, about a third is copied.

And 585, one paragraph.

583 is

584 is almost

586, about half.

587 is

You know, mentally I tend to agree, as I did

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previously, that the mental component of the RFC is supported by

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Dr. Noia and Dr. Nobel.

The only question would be the off task

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

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and absenteeism provisions, and we'll come back to that.

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And physically, it's clear ALJ Koennecke recognized

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that it was improper to rely on the opinions of Dr. Werner, who

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is an OB/GYN, as ALJ Fein had, but she rejected essentially all

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of the other medical evidence in the record, including

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Dr. Park's medical source opinions, Dr. Magurno, Dr. Wiesner,

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and does not really offer any medical support other than her

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opinions concerning plaintiff's physical RFC.

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The rejection of Dr. Park is not -- it's not

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supported.

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solely on plaintiff's subjective complaints.

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objective indications that she suffers from back issues and she

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has had -- there's clinical evidence that supports that,

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treatment notes support that, there's an MRI, as I indicated

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previously, that supports it.

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It's wrong to say that Dr. Park's opinions are based
There are

And even if his opinion was rejected, ALJ Koennecke

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did not discuss the regulatory factors that are required in

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order to determine how much weight, if it's not given

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controlling weight, should be given to Dr. Park.

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discussion whatsoever of those regulatory factors under 20 CFR

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Section 404.1527, including whether he examined the plaintiff,

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whether he's an ongoing treater, whether his opinions are

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supported by clinical findings, and whether they're consistent

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with others.

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Dr. Magurno and Dr. Wiesner.

There is no

And, of course, they are consistent with

HANNAH F. CAVANAUGH, Official Court Reporter
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It's prejudicial because, if no other reason, the

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limitations on sitting are inconsistent with the RFC and

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sedentary work, as well as the attendance and off task opinions.

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Dr. Magurno is also improperly discounted.

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Dr. Magurno is someone who has programatic expertise, as the

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Commissioner often argues, when trying to support the opinion of

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a consultative examiner.

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findings, and I reviewed those carefully.

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It's supported by his objective exam

I think the opinions of Dr. Wiesner were also
improperly discounted.
I know that Mr. Gorton has raised concerns, and I

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have concerns as well, about making statements like were

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contained in ALJ Koennecke's decision where a -- an opinion is

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discounted based on experience in other cases.

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The matter was confronted by this court in Stevens

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versus Commissioner of Social Security found at 2016 WL 3199515

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from June 18, 2016.

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courts -- the few courts that had addressed this particular

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argument were split, either considering such commentary

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permissible so long as it is not the sole factor for discounting

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the medical opinion or finding such comments improper and

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requiring a remand before a different ALJ.

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The Court, in that case, observed that few

The Eleventh Circuit addressed it in Miles versus

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Chater, 84 F.3d 1397, it's a 1996 decision, and held it

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inappropriate for an ALJ to discount a medical report on the

HANNAH F. CAVANAUGH, Official Court Reporter
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O'Grady v. Social Security

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basis that certain physicians almost invariably conclude that

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the person being examined is totally disabled because such an

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observation without supporting evidence indicates potential

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bias.

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The Third Circuit took a little bit more subdued

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approach in Miller versus Commissioner, 172 F.3d 303, and

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observed it would be erroneous for an ALJ to summarily reject

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every report submitted by a certain doctor of a law firm simply

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because the doctor reaches the same conclusion in every case,

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but added that an ALJ should be afforded substantial discretion

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to give little way to a medical report that was carbon copied

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from previous litigation without taking into account the

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specific applicant's condition.

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I -- so I don't hinge my decision necessarily on the

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impropriety of rejecting Dr. Wiesner's decision and making the

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additional comment that in a lot of Mr. Gorton's cases,

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Dr. Wiesner opines more -- with a more limited physical RFC than

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supported by his objective findings.

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ALJ Koennecke did at least discuss a reason for rejecting it in

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this specific case.

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I do find that

The real issue here is attendance and off task.

And

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virtually everyone that has offered an opinion on this issue has

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said that plaintiff is likely to be absent in an amount of time

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that would be inconsistent with employment and would be off task

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similarly.

Dr. Park at 443 and again 847 and 848 said plaintiff

HANNAH F. CAVANAUGH, Official Court Reporter
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would be absent more than three times per month and off task

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more than 33 percent of the time.

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Dr. Wiesner similarly at 501, 502, plaintiff will be

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absent more than three times per month and off task 20 to

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30 percent of the time.

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LCSW Hertzog indicated at 471, plaintiff would be
absent more than three times per month.
Dr. Russell, at 350, noted that the plaintiff -plaintiff's depression might interfere and had a slight
potential to interfere with her attendance.
And I note that plaintiff was fired from her prior

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position for absenteeism.

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the -- an employer would tolerate no more than one absence per

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month at 702 and no more than ten percent off task at 703.

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The vocational expert testified that

The -- in my view, the evidence is clear and

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overwhelming that plaintiff would be likely absent at least

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three times per month and off task at least 20 to 30 percent.

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The -- and I agree with plaintiff, vocational

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expert -- I'm sorry, the Commissioner bears the burden at step

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five, and although I understand defendant's argument, the

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Commissioner would like to interpret the vocational expert's

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testimony as saying these are only examples of positions that

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plaintiff is capable of performing, but that's not how the

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testimony came through.

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I read it very carefully over and over.

It's very clear to me these are the three positions

HANNAH F. CAVANAUGH, Official Court Reporter
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that he believes she can perform, a total of 8,499 jobs

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nationally with no indication regionally.

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argues, even if that amount in and of itself is significant,

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even a little erosion of that amount is significant when it

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comes to whether the Commissioner carried her burden.

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So as Mr. Gorton

The -- it's true that the Social Security Act and the

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regulations themselves, as well as the Social Security rulings,

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do not provide a definition for a significant number of jobs.

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In this circuit, courts have generally refused to draw

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bright-lines/standards for the minimum number of jobs required

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to show that work exists in significant numbers.

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it's fairly minimal, it's not -- it's not zero.

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And although

And I tend to agree that 10,000 seems to be a cutoff

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that some courts have used.

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Social Security, this court -- that's at 2016 WL 3960486 --

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Northern District of New York, 2016, held that numbers varying

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from 9,000 upward can constitute significant.

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In Hanson versus Commissioner of

There are cases that -- that go both ways when you

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get into the 4,000, 5,000 range.

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significant.

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Middle District of Pennsylvania, 1983.

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argument to be made that 8,499 in and of itself is not

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significant, particularly since there is no indication of

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regional availability.

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4,000 or 5,000 is clearly not

That's Leonard versus Heckler 582 F.Supp. 389,
I think there's a good

But in any event, because of the further erosion due

HANNAH F. CAVANAUGH, Official Court Reporter
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to potential absenteeism and being off task, I think that the

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Commissioner has not carried her burden at step five to

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demonstrate the existence of work to be performed in the

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economy.

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As I indicated, I think I have a firm belief that

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error's been committed, that the plaintiff -- overwhelming

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evidence suggests that she is disabled, so I'm going to reverse

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the Commissioner's determination and direct the matter be

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remanded with a directed finding of disability solely for

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purposes of calculating benefits.
Thank you both for excellent presentations and an
interesting case.

Have a good afternoon.

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MR. GORTON:

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MR. NORWOOD:

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Thank you, your Honor.
Good afternoon.
(Time noted:

10:42 a.m.)

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HANNAH F. CAVANAUGH, Official Court Reporter
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CERTIFICATE OF OFFICIAL REPORTER

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I, HANNAH F. CAVANAUGH, Official Court Reporter, in and

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for the United States District Court for the Northern District

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of New York, DO HEREBY CERTIFY that pursuant to Section 753,

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Title 28, United States Code, that the foregoing is a true and

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correct transcript of the stenographically reported proceedings

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held in the above-entitled matter and that the transcript page

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format is in conformance with the regulations of the Judicial

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Conference of the United States.

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Dated this 10th day of January, 2018.

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/S/ HANNAH F. CAVANAUGH_______

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HANNAH F. CAVANAUGH

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Official U.S. Court Reporter

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HANNAH F. CAVANAUGH, Official Court Reporter
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