Burton v. Commissioner of Social Security

Filing 13

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, 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 close this case. Signed by Magistrate Judge David E. Peebles on 2/26/2018. (see)

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

JONATHAN F. BURTON,
Plaintiff,
v.

Civil Action No.
3:17-CV-0664 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
COUGHLIN & GERHART, LLP
P.O. Box 2039
Binghamton, NY 13902

LARS P. MEAD, 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 B. MYERS, ESQ.
Special Assistant U.S. Attorney

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), 1383(c)(3), are
cross-motions for judgment on the pleadings. 1 Oral argument was
conducted in connection with those motions on February 20, 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.

(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.

1

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

(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:

February 26, 2018
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-----------------------------------------------x
JONATHAN F. BURTON,
Plaintiff,
vs.

3:17-CV-664

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
-----------------------------------------------x
Decision - February 20, 2018
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:

COUGHLIN, GERHART LAW FIRM
Attorneys at Law
99 Corporate Drive
Binghamton, New York 13902
BY: LARS P. MEAD, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza
New York, New York 10278
BY: DAVID B. MYERS, ESQ.

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

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Decision - 17-cv-664 - 2/20/2018
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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pursuant to 42, United States Code, Sections 405(g) and

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1383(c)(3).
The background is as follows.

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The plaintiff was

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born in November 1986.

He is currently 31 years old.

He was

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28 years old at the time of the hearing in this matter.

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is 6-foot 2-inches in height and weighs 260 pounds.

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attended school through the 11th grade.

He

He

He went to an

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alternative school for seven years and dropped out after a

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good friend committed suicide.

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He achieved his GED at age

Plaintiff rents a room.

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He last worked in 2006 for

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four to six months part time, 15 to 20 hours a week, in

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Florida selling video games and systems.

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significant employment was a summer job when he was 14 or 15

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years old at the Ithaca Science Center.

His only other

Plaintiff does not have a driver's license.

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He

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counts on his mother or public transportation to get him

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around.
Plaintiff has several physical conditions that have

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been diagnosed, including asthma, for which he uses an

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inhaler; a back injury; knee conditions, which he has had

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since age 13.

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knee.

He has had two surgeries.

He cannot bend his

He uses a cane and a crutch on occasion.

This is his

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Decision - 17-cv-664 - 2/20/2018
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right knee.
Mentally the plaintiff has significant issues of

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long standing.

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father until his father died when he was age 15.

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childhood he has had depression, anxiety, and symptoms due to

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PTSD.

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disorder not otherwise specified.

Since

He has been diagnosed also with having a dissociative
That's at 427.

As a child he treated with Dr. Anthony Pane, a

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The record reflects that he was abused by his

psychologist.

His mental condition has also been addressed

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by his primary care provider of long standing, Dr. Robert

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Breiman, and Dr. Bernard Member, who is a psychiatrist.

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has been on Prozac, a generic brand of it, Xanax and

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Temazepam.
He also has a history of substance abuse.

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He has

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used marijuana since age 13.

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various facilities on an inpatient basis.

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weeks in a psychiatric ward in Arizona when he was

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approximately 18 years old.

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treatment as an inpatient.

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and then spent from February 2005 to July of 2005 at The

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Refuge.

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treatment at The Refuge are no longer attainable, they've

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been destroyed, but based on the record retention policy of

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that facility.

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That's at 427.

He

He has been in

He spent three

He went in for a dual diagnosis
He went to Tully Hill in 2004,

Although, unfortunately, the records of the

Plaintiff suffers from panic attacks, especially

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Decision - 17-cv-664 - 2/20/2018
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when he finds himself in large groups, and he attributes it,

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at least in part, to the sexual abuse at the hands of his

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father.
As counsel indicated, he does have some interests

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and hobbies.

He uses the computer, collects and polishes

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rocks, he carves and stains walking sticks.
Procedurally, the plaintiff applied for

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Supplemental Security Income payments on August 4, 2013,

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alleging an onset date of January 21, 2006.

He also applied

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for childhood benefits on November 5, 2013 alleging a similar

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onset date.
A hearing was conducted by Administrative Law Judge

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John P. Ramos on August 10, 2015, to address those

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applications.

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October 8, 2015.

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Social Security Administration Appeals Council on April 20,

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2017.

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ALJ Ramos issued an unfavorable decision on
Review of that decision was denied by the

In his decision ALJ Ramos applied the familiar five
step sequential test for determining disability.
At step one he concluded that the plaintiff had not

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engaged in substantial gainful activity since his alleged

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onset date.

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At step two he found that the plaintiff suffers

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from severe conditions, including posttraumatic stress

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disorder, or PTSD; obesity; bilateral degenerative joint

Decision - 17-cv-664 - 2/20/2018

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disease of the knees; lumbar spine degenerative disc disease;

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and asthma.

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At step three he concluded, however, that none of

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those conditions met or medically equaled any of the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations, specifically addressing listings

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1.02, 1.04, 3.03 and 12.06.

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After surveying the medical evidence, the ALJ then

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concluded that the plaintiff retains the residual functional

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capacity notwithstanding his conditions to perform sedentary

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work, except that he must avoid exposure to extremes in

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temperatures and concentrated respiratory irritants.
He went on to find that the claimant retains the

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ability to understand and follow simple directions and

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instructions and to perform simple tasks with supervision and

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independently.

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concentration for simple tasks; can regularly attend to

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routine and maintain a schedule; and can relate to and

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interact with others to the extent necessary to carry out

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simple tasks, but should not have any interaction with the

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public.

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defined as performing work with occasional decision making

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related to the performance of simple tasks involving

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goal-oriented work rather than work involving a production

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rate pace.

The claimant can maintain attention and

The claimant can handle reasonable levels of stress

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Decision - 17-cv-664 - 2/20/2018
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Applying that RFC, the ALJ concluded first that
plaintiff did not have any significant past relevant work.
At step five he concluded that if plaintiff was

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able to perform a full range of sedentary work, the

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Medical-Vocational Guidelines, or the Grids, would direct a

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finding of no disability, citing Rule 201.27.

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however, that plaintiff's non-exertional limitations

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significantly eroded the job base on which the Grids are

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predicated.

He did find,

Based on the testimony of a vocational expert,

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he then concluded that plaintiff can perform in the positions

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of a document preparer and an addresser, consistent with the

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Dictionary of Occupational Titles, and, therefore, found that

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the plaintiff was not disabled.

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As you know, my role is limited to determine

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whether correct legal principles were applied and whether the

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ALJ's determination is supported by substantial evidence.

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Viewing first the handling of the treating source

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opinions of Dr. Member and Dr. Breiman, those opinions, of

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course, are entitled to controlling weight if they are

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supported by medically acceptable clinical and laboratory

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diagnostic techniques and are not inconsistent with other

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substantial evidence.

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Of course, as the Commissioner argues it, if there

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are conflicts in the form of contradictory medical evidence,

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the resolution is properly entrusted to the Commissioner.

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Decision - 17-cv-664 - 2/20/2018
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However, if the Commissioner does not give controlling weight

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to the treating source opinions, there are several factors

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that must be considered in order to determine what, if any,

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weight they are entitled to, including length of the

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treatment relationship, frequency of the examination, nature

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and extent of the treatment relationship, degree to which the

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medical source has supported his or her opinion, the degree

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of consistency between the opinion and the record as a whole,

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whether the opinion is given by a specialist, and other

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evidence which may be brought to the attention of the ALJ.
In my view, in this case the determination of ALJ

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Ramos is not sufficient and it does not adequately articulate

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the basis for rejecting the treating source opinions of

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Dr. Breiman, who saw the plaintiff dating back to 2006, and

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Dr. Member.
As the plaintiff has argued, the opinions of a

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treating source are particularly important when dealing with

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a mental condition.

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plaintiff has suffered this medical condition for the bulk of

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his life.

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positioned, based on their having treated the plaintiff, to

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opine concerning that condition and any limitations.

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adequately laid out in the case cited by plaintiff,

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Olejniczak versus Colvin, reported at 180 F.Supp.3d 224

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(W.D.N.Y. 2016).

Clearly, as indicated by Dr. Pane, this

Dr. Breiman and Dr. Member are uniquely

That is

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Decision - 17-cv-664 - 2/20/2018
I just did not find that there was a clear

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explanation of the rejection, the decision to reject those

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opinions and to give them only little weight.

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whether the failure to quantify seriously limited as a

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category as a sufficient basis is something that the

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plaintiff has pointed out.

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Administrative Transcript that ALJ Ramos was able to

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translate seriously limited into 25 to 33 percent of the

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time.

The issue of

It seems at page 85 of the

I recognize, as the Commissioner's argued, that

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there is no need, the Second Circuit has said, to slavishly

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recite the factors that I've just mentioned and that are

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contained in the regulations.

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here.

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a check-the-box form, and it's not sufficient with regard to

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Dr. Breiman to just say that the record is inconsistent

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without elaboration.

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But the rationale is not clear

I'm not sure that it is sufficient to simply say it's

And I think the RFC is similarly infected.

The

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sole evidence supporting the RFC is Dr. Selesner's opinion

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from January 15, 2014.

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the time were opinions from Dr. Member from January 4, 2015,

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a treating source; Dr. Breiman from February 11, 2015, a

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treating source; and Dr. Breiman from August 12, 2015, a

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treating source.

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the December 21, 2013 opinion of Dr. Tien, which Dr. Selesner

What he did not have before him at

Those were all contrary to the RFC, as is

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Decision - 17-cv-664 - 2/20/2018
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did have before him.

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opinions.

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They're also buttressed by Dr. Pane's

So it doesn't appear that, for example, 12F, 13F,

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15F, 16F, 20F, 21F and 22F were in front of Dr. Selesner when

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he rendered his opinion, so I find that the Residual

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Functional Capacity found by the ALJ is not supported by

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substantial evidence.

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vocational expert's testimony is flawed at step five where

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the Commissioner bears the burden of proof because the

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And, of course, therefore, the

hypothetical posed was based on the infected RFC.
So I don't find persuasive proof of disability in

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this record such that I would order a remand simply for

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calculation of benefits.

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pleadings to the plaintiff and direct that the matter be

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remanded for further consideration by the Commissioner.

I will grant judgment on the

Thank you both for really excellent arguments.

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enjoyed working on this case thoroughly.

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good day.

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*

*

Hope you have a

*

I

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