Beardsley v. Colvin

Filing 16

ORDER: That Plaintiffs # 11 Motion for Judgment on the Pleadings is GRANTED. The Acting Commissioners determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATE D. The # 1 Complaint filed by Tammie Ann Beardsley is hereby REMANDED to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. Case REMANDED pursuant to sentence four of 42 USC section 405 U.S.C. section 405(g), case closed. Transcript of the Decision of November 15, 2016 is attached. Signed by Magistrate Judge David E. Peebles on 11/18/2016. (jmb)

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

TAMMIE ANN BEARDSLEY,
Plaintiff,
v.

Civil Action No.
5:15-CV-1500 (DEP)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.
PAUL B. EAGLIN, 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

JASON P. PECK, 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) and 1383(c)(3), are
cross-motions for judgment on the pleadings. 1 Oral argument was
conducted in connection with those motions on November 15, 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 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
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

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:

November 18, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
TAMMIE ANN BEARDSLEY,
Plaintiff,
vs.

5:15-CV-1500

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
----------------------------------------------------x
Decision - November 15, 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:

OLINSKY LAW GROUP
Attorneys at Law
300 S. State Street
Syracuse, New York 13202
BY: PAUL B. EAGLIN, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza
New York, New York 10278
BY: JASON P. PECK, ESQ.

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

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THE COURT:

I have before me a request for judicial

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review of a determination by the Acting Commissioner of

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Social Security pursuant to 42 United States Code Section

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405(g) and 1383(c).

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The background is as follows.

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born in May of 1969, is currently 47 years of age.

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in an apartment with her fiance, if I'm reading my notes

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correctly, and a six-year-old son in Syracuse.

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out of high school as a senior but did secure a GED.

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The plaintiff was
She lives

She dropped
She

also has a two-year degree from Onondaga Community College.
She worked 15 years as a waitress/bartender at a

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restaurant in Ithaca.

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when the restaurant closed.

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temporary employee at the Cornell University bookstore as a

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bagger and a cashier.

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She left that establishment in 2005
She also has worked as a

She's 5-foot 4-inches tall and weighs 230 pounds

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and has been diagnosed as obese.

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as suffering from degenerative disc disease of the lumbar

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spine, including at the L5-S1 level with notation that there

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is stenosis and some nerve root impingement.

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2012 she underwent a left decompressive hemilaminectomy and

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microdiscectomy by Dr. Stephen Robinson at Syracuse

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Orthopedics at the L5-S1 level.

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pain has persisted, including in her back, hip and left foot.

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She also has been diagnosed

On January 26,

Despite the surgery, her

She has treated at the New York Spine and Wellness

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Center for pain and has undergone various treatment,

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including some injections of blocks.

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with Dr. Hassan Shukri, a neurologist.

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2012, EMG nerve conductive studies, which did result in

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abnormal findings, including multilevel denervation of the

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left lower extremity.

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She also has consulted
She has had two, in

She has also undergone Magnetic Resonance Imaging,

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or MRI, testing, including in March 2013 which revealed a

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disc protrusion.

She has treated from August 2013 until

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October of 2013 with Samuel Rameas, a foot specialist.

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has in addition to the nerve blocks been prescribed Cymbalta

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and Oxycodone.

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Baldwinsville Family Medical Care Facility from

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September 2012 to April 2014 for various conditions.

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She

She also undergoes treatment at the

In terms of daily activities, she cares for her

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son, takes her son to school, drives, can dress, cook, can

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clean, do laundry, shop and watch television.

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Procedurally the history of the case is as follows.

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In January of 2013 plaintiff applied for Supplemental

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Security Income, or SSI, payments alleging a disability onset

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date of March 23, 2011.

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2014 by Administrative Law Judge John Ramos.

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issued a decision on September 2, 2014.

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became a final determination of the Agency on November 4,

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2015 when the Social Security Appeals Council denied

A hearing was conducted on May 22nd,
ALJ Ramos

And that decision

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plaintiff's request for review.
In his decision ALJ Ramos applied the familiar
five-step sequential test for determining disability.
He found at step one plaintiff had not engaged in

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substantial gainful activity since her alleged onset date, or

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since the date of her application, I should say, of

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January 21 of 2013.

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At step two he concluded that she suffered from
severe impairments, including degenerative disc disease of
the lumbosacral spine, depression and anxiety.
At step three he concluded that those conditions

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were not either singly or in combination sufficient to meet

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or medically equal any of the listed presumptively disabling

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conditions, including listing 1.04 and 12.04/12.06.

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After surveying the medical evidence, ALJ Ramos

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concluded the plaintiff retains the residual functional

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capacity, or RFC, to perform sedentary work, except she only

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retains the ability to understand and follow simple

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instructions and directions, perform simple tasks with

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supervision and independently, maintain

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attention/concentration for simple tasks, regularly attend to

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a routine and maintain a schedule, relate to and interact

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with others to the extent necessary to carry out simple

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tasks, and handle reasonable levels of simple work-related

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stress in that she can make decisions directly related to the

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performance of simple work and handle usual work place

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changes and interactions associated with simple work.
Applying that RFC finding after concluding that

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plaintiff did not have any meaningful past relevant work, at

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step five ALJ Ramos applied the medical vocational

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guidelines, or the grids.

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201.21 and 201.27 a finding of no disability would be

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directed.

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including her mental limitations, or limitations imposed by

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her mental conditions, I should say, had little or no effect

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on the job base on which the grids were predicated and,

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therefore, concluded that she is not disabled.

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Concluded that under grid rules

He concluded that the non-exertional limitations,

As you know, my task is limited.

The scope of

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review is deferential and requires me to determine whether;

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A, proper legal principles were applied; and, B, the

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determination is supported by substantial evidence.

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Step two is a fairly de minimis step.

It requires

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a determination of whether an impairment is sufficiently

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severe to limit the physical or mental ability of a claimant

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to do basic work activities.

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defined in 20 CFR Section 416.921 to include walking and

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standing, as well as sitting, lifting, pushing, pulling,

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reaching, carrying or handling.

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well-documented foot condition and foot pain was sufficiently

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severe to meet the minimal test under step two and should

Basic work activities is

In my view plaintiff's

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have been included in the ALJ's recitation of severe

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conditions.

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And I don't find that that error is harmless

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because, as the plaintiff has pointed out, even sedentary

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work involves a certain amount of walking and standing, and

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the failure to include the foot pain at step two deprives the

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Court of making any kind of meaningful review of the

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determination as to whether or not the standing and walking

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requirements of sedentary work could be met by the plaintiff

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given her foot condition.
I've reviewed the treating source argument based on

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Dr. Robinson's statements.

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These statements speak only in succinct terms to disability,

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which is a matter reserved to the Commissioner, and there is

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no context provided.

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February 23, 2012 there are no similar notations.

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not find any error in that regard.

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I don't find any error there.

After the surgery and certainly after
So I do

With respect to the RFC, but for the foot pain and

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pain which I'll get to in a moment, it could be argued, and

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the Commissioner has in fact argued, that the RFC finding is

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supported by Dr. Ganesh.

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that Dr. Ganesh's findings of moderate limitation of walking

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and climbing and so forth is not inconsistent with light

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work, and by definition, therefore, sedentary work.

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find any error there.

There is case law that suggests

I don't

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I also don't find any error in not considering

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obesity.

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plaintiff's obesity but did not find anything in any of the

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treating or consultative source's reports that would suggest

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that the obesity further limited the plaintiff's ability to

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perform work functions.

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It's clear that ALJ Ramos was cognizant of

I do have a problem also with the credibility

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determination of the Commissioner.

The ALJ did note the

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correct two step process for determining credibility.

He

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then at page 24 recited plaintiff's claims, and in two brief

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paragraphs without any meaningful discussion discounted the

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plaintiff's allegations concerning her symptoms.

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those two paragraphs do not provide sufficient guidance to

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allow for meaningful judicial review.

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In my view

The step five determination, again it's clear that

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plaintiff suffers from well-documented pain, back pain, hip

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pain and predominantly foot pain.

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for it from various sources, including the New York Spine and

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Wellness Center.

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limitation that can erode the job base on which the grids are

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predicated.

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She's received treatment

Pain, as you know, is a non-exertional

In my view, based on the combination of factors,

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resort to the grids was not appropriate.

In any event,

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because of the credibility issue and the step two issue, I

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find that the Commissioner's determination is not supported

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2

by substantial evidence.
I know the plaintiff seeks remand with a directed

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finding of disability.

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evidence of disability as to make a directed finding and a

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remand for calculation of benefits only.

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grant judgment on the pleadings to the plaintiff, vacate the

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Commissioner's determination, and remand the matter for

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further consideration and a better explanation as to the

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issues that I just addressed.

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I do not find such persuasive

Instead, I will

Thank you both for excellent presentations and I
hope you have a good day and a happy Thanksgiving.
*

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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