Lampkin v. Commissioner of Social Security

Filing 19

ORDER: that Plaintiff's motion for judgment on the pleadings is Granted; that the 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 Vac ated; that the matter is hereby Remanded to the 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 Commissioner pursuant to sentence four of 42 U.S.C. § 405 (g) and closing this case. Signed by Magistrate Judge David E. Peebles on 08/25/2016. (hmr) Modified on 8/25/2016 (hmr, ).

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK JENNIE LAMPKIN, Plaintiff, v. Civil Action No. 5:15-CV-0944 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: DOLSON LAW OFFICE 126 N. Salina Street Suite 3B Syracuse, NY 13202 STEVEN R. DOLSON, 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 KATHRYN S. POLLACK, ESQ. Special Assistant U.S. Attorney DAVID E. PEEBLES 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 Commissioner, pursuant to 42 U.S.C. ยง' 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings. 1 Oral argument was conducted in connection with those motions on August 23, 2016, 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 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 Commissioner=s determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the 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. Social Security Act, is VACATED. 3) The matter is hereby REMANDED to the 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 Commissioner pursuant to sentence four of 42 U.S.C. ' 405(g) and closing this case. Dated: August 25, 2016 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JENNIE LAMPKIN, Plaintiff, vs. 5:15-CV-944 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x DECISION - August 23, 2016 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: STEVEN R. DOLSON Attorney at Law 126 North Salina Street Syracuse, New York 13202 For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 26 Federal Plaza New York, New York 10278 BY: KATHRYN S. POLLACK, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 2 THE COURT: 1 I have before me a request for judicial 2 review of an adverse determination by the Commissioner 3 pursuant to 42, United States Code, Sections 405(g) and 4 1383(c)(3). The background is as follows. 5 The plaintiff was 6 born in June of 1978. She lives in Liverpool with her 7 daughter, who was nine years old at the time of the hearing 8 in this matter. 9 graduated from high school or has a GED and has taken some She either, the record is somewhat unclear, 10 college courses. She has a driver's license, although she 11 claims that she has not driven for a while because of her 12 conditions. 13 nurse, a waitress, a sales associate and an assistant manager 14 in a mall store. Her past work includes as a licensed practical In support of her claim for disability benefits and 15 16 SSI benefits, she claims that she suffers from lumbar and 17 cervical pain, as well as in the mid back. 18 hands. 19 suffers from headaches. 20 motorcycle accident in 2009 which may have caused or 21 contributed to all or some of her conditions. 22 diagnosed as suffering from carpal tunnel syndrome. 23 testified that she has had bilateral releases performed. 24 could only find evidence of a left hand release on 25 October 27, 2011 by Dr. Daniel Murphy at Syracuse Orthopedic Pain in her She has lost feeling and pain in both hands and It appears that plaintiff was in a She has been She I 3 1 Specialists, or SOS. She also underwent a discectomy with fusion by 2 3 Dr. Colin Harris, also at SOS, on November 1, 2013. She has 4 complained of residual pain after that surgery. 5 treated at SOS, with the New York Spine & Wellness Center 6 where she underwent nerve blocks, among other things, and 7 with the Dr. John Finkenstadt, who she began seeing or began 8 treating at that office in January 2014, apparently. She has She's been prescribed many pain relievers and 9 10 muscle relaxers over time, including Flexeril, Mobic, Lyrica, 11 Celebrex, and Tramadol, and many more. 12 physical therapy. She's also attempted Procedurally, she applied for Title II benefits on 13 14 February 8, 2012 and Title XVI benefits on February 24, 2012. 15 Both applications allege a disability onset date of April 16, 16 2011. 17 Administrative Law Judge Mary Withum on March 10, 2014. 18 Withum issued a decision on April 17, 2014 finding that the 19 plaintiff was not disabled at the relevant times and, 20 therefore, ineligible for benefits. 21 determination of the Agency on June 15, if I can read my 22 writing correctly, 2015, when the Social Security 23 Administration Appeals Council denied plaintiff's application 24 for review of that determination. 25 The hearing was conducted in the matter by ALJ That became the final The Administrative Law Judge in arriving at her 4 1 decision applied the familiar five-step test for determining 2 disability. 3 engaged in substantial gainful activity since her alleged 4 onset date. 5 several severe impairments at step two, including bulging 6 lumbar disc, cervical disc degeneration, cervical 7 radiculopathy, cervical spondylosis, herniated lumbar disc, 8 degenerative disc disease of lumbar spine with radiculopathy, 9 occipital neuralgia, trochanteric bursitis, and carpal tunnel 10 11 She concluded at step one that plaintiff had not The ALJ concluded that plaintiff suffers from syndrome. She considered the listed, the relevant listed 12 presumptively disabling conditions set forth in the 13 Commissioner's regulations and concluded that plaintiff's 14 conditions did not meet or medically equal any of those 15 listed impairments. 16 ALJ Withum concluded that plaintiff retains the residual 17 functional capacity to perform a range of sedentary work with 18 the exception of no climbing ladders, ropes or scaffolds; no 19 unprotected heights; sit/stand option alternatively at will 20 provided the claimant is not off task more than 5 percent of 21 the work period; occasionally stooping, crouching, kneeling 22 and crawling; frequent handling objects with both hands, 23 defined as gross manipulation; frequent fingering with both 24 hands, defined as fine manipulation of items no smaller than 25 the size of a paper clip. After surveying the available evidence, 5 Applying that RFC, the ALJ concluded the plaintiff 1 2 is not able to perform any of her past relevant work. With 3 the assistance of a vocational expert at step five, the 4 Administrative Law Judge concluded that there were jobs 5 available in the national economy that plaintiff is capable 6 of performing despite her limitations, including as an order 7 clerk food, table worker, and final assembler. 8 concluded that plaintiff was not disabled at the relevant 9 times. And therefore Obviously, my task is limited and the role of the 10 11 Court is deferential. My obligation is to ensure that proper 12 legal principles were applied and the decision is supported 13 by substantial evidence. 14 argument concerning the RFC I think I've addressed. 15 believe that the requirement that the plaintiff be able to 16 sit and stand at will provided she is not off task more than 17 5 percent of the time provides sufficient guidance to the 18 vocational expert to render meaningful opinions concerning 19 available jobs. The RFC, the portion of plaintiff's I The Commissioner is correct that the report of 20 21 Dr. Lorensen appears to have been considered by ALJ Withum 22 and is, in fact, referenced earlier in the opinion. 23 Although, as plaintiff's counsel points out, the ALJ does not 24 indicate how much weight is assigned to that consultative 25 report. 6 I do agree that there are problems associated with 1 2 the rejection of Dr. Finkenstadt's opinions, the reasons 3 cited. 4 she would be absent from work four times per month is a 5 matter reserved to the Commissioner. 6 that that was a proper observation on the part of 7 Dr. Finkenstadt and should have been considered by the 8 Administrative Law Judge. 9 Administrative Law Judge should have provided more guidance 10 as to the reasons for rejecting Dr. Finkenstadt's opinions. 11 To say that they are inconsistent with the evaluation notes 12 fails to take into consideration that there are no notes 13 whatsoever of the visits of January 24, February 7, 14 February 28, and March 18, 2014. 15 Dr. Finkenstadt that I could find relate to the January 2, 16 2014 visit and assessment. First of all, it is not true that the opinion that I agree with plaintiff My feeling is that the The only notes from And as plaintiff's counsel points out, it is 17 18 incorrect to say that there are no positive musculoskeletal 19 findings. 20 positive findings of limitations. 21 positive straight leg raise test on the left, and there are 22 other notations at 528 that show limitations. 23 On page 527 and 528 it's very clear that there are Among other things, I think a fuller assessment of Dr. Finkenstadt's, 24 the rejection of his treating source statement, medical 25 statement, and not giving it controlling weight, is required. 7 1 And I think it's particularly important in this case because 2 it's the only medical statement that is rendered after 3 plaintiff's cervical surgery. 4 there is an indication, including the results of testing, I 5 think it was at page 499, if I recall correctly, that suggest 6 that she has lingering issues associated with her cervical 7 condition. 8 9 And as counsel points out, And so I think at the very least it triggered a requirement by the Administrative Law Judge to either 10 recontact Dr. Finkenstadt and obtain notes of the other 11 visits, or to order a subsequent consultative exam to assess 12 her condition in light of the cervical issue that she 13 experienced that appears to have manifested itself in or 14 about 2013. 15 So I do not find that the determination of the 16 Commissioner resulted in proper legal principles and is 17 supported by substantial evidence, so I will grant judgment 18 on the pleadings to the plaintiff. 19 I agree with plaintiff's counsel that this is not a 20 case where there is such persuasive evidence of disability 21 that a directed finding and a remand for calculation only of 22 benefits is required. 23 proceedings consistent with this opinion. 24 both for excellent presentations. 25 * So I will remand it for further * And I thank you * 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

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