Broton v. Colvin

Filing 15

ORDER: that Plaintiff's motion for judgment on the pleadings is Granted; that the Acting Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is Vacated; that the matter is hereby Remanded to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination; and that the clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 12/27/2016. (hmr)

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

RITA M. BROTON,
Plaintiff,
v.

Civil Action No.
5:16-CV-0262 (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.
MARISA BURKETT, 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

OONA PETERSON, 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), are cross-motions
for judgment on the pleadings. 1 Oral argument was conducted in
connection with those motions on December 8, 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.
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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:

December 27, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
RITA M. BROTON,

vs.

16-CV-262

CAROLYN W. COLVIN, Acting Commissioner of Social Security.
----------------------------------------------------x
Transcript of DECISION held on December 8, 2016,
at the James Hanley U.S. Courthouse, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding.

A P P E A R A N C E S
For Plaintiff:
(Via Telephone)

OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, New York 13202
BY: MARISA BURKETT, ESQ.

For Defendant:
(Via Telephone)

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: OONA PETERSON, ESQ.

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Broton v. Colvin - 16-CV-262

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(In chambers, via telephone:)

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THE COURT:

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Thank you, both for excellent

presentations.
I have before me a request for judicial review of

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an adverse determination by the acting commissioner pursuant

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to 42, United States Code, Section 405(g).

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The background is as follows.

Plaintiff was born

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in December of 1967.

She is 5 foot 4 inches in height and

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has weighed as much as 310 pounds and sometimes more and

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sometimes less.

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She lives in a house.

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left high school to go to work.

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She's married but has no dependent children.
She has an 11th grade education.

She

She is a certified nursing assistant and has worked

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in that field at Van Duyn, a local facility, for 18 and a

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half years.

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She left that facility in January of 2007.

The plaintiff suffers from a variety of diagnosed

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medical conditions, including diabetes and hyperglycemia,

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asthma, and some other conditions, as well.

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obviously, obese, in addition.

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She's,

The plaintiff developed asthma in 2001 and was

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taken from work to the Community Hospital emergency room.

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Some of the symptoms associated with her asthma include a

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development of sinus infections, coughing, vomiting.

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experiences asthma when exposed to certain irritants,

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including cleaning supplies, perfume and other similar

She

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Broton v. Colvin - 16-CV-262

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irritants.
She has been treated over 20 years by Dr. Robert

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Polachek.

She has also received treatment from Dr. Richard

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Evans, an expert in pulmonology; although, he apparently

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closed his office in or about 2009.

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treated, among others, by nurse practitioner Lynn Cahill-Hoy.

Her diabetes has been

The procedural history of this case is as follows:

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The plaintiff filed an application for disability benefits

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under Title II of the Social Security Act on February 4,

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2009, alleging an onset date of January 11, 2007.
The matter was assigned to Administrative Law Judge

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John Ramos who conducted a hearing on February 25, 2011,

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after adjourning prior sessions without taking testimony.
On March 7, 2011, ALJ Ramos issued a decision

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denying benefits and finding that plaintiff was not disabled

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at the relevant times.
The Social Security Administration Appeals Council

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denied review of that decision on July 31, 2012.
An action was commenced in this court by the

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plaintiff resulting in a remand on stipulation on January 3,

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2014.

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Following that remand, the Social Security

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Administration Appeals Council vacated the prior decision and

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issued an order on February 6th, 2014, providing instructions

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to the administrative law judge for consideration on remand.

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Broton v. Colvin - 16-CV-262

There was a second Title II application filed on

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September 16, 2013, and that was consolidated into this

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proceeding.
On May 14, 2014, a second hearing was conducted by

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ALJ Ramos.

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again finding that plaintiff was not disabled at the relevant

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times.

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He issued a second decision on August 4, 2014,

Social Security Administration Appeals Council
denied review on February 2, 2016, making this a final
determination of the agency.
In his decision, ALJ Ramos at Step 2 concluded that

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plaintiff suffers from -- after concluding she had not

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engaged in substantial gainful activity since her alleged

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onset date, concluded that she suffers from reactive airways

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disease/asthma, obesity and diabetes mellitus as severe

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conditions at Step 2, rejecting plaintiff's back pain and

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lumbar spine conditions and, also, Hodgkin's Lymphoma.

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The ALJ then concluded at Step 3 that plaintiff's

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conditions did not meet or medically equal any of the listed

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presumptively disabling conditions, including considering

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3.03 related to asthma and 9.08 related to diabetes mellitus.

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After surveying the record, the ALJ concluded that

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the plaintiff retains the residual functional capacity to

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perform sedentary work with limitations, including,

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pertinently, to this proceeding.

The claimant should avoid

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Broton v. Colvin - 16-CV-262

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exposure to fumes and other respiratory irritants and

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extremes of temperature or humanity.
Applying that RFC finding, the ALJ Ramos concluded

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that plaintiff is unable to perform her past relevant work as

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a nurse's aide and, after eliciting the testimony of a

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vocational expert, concluded that she is capable of

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performing work in the national economy, including as a

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surveillance system mopper, a circuit board assembler, and a

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table worker.

He therefore, concluded that she was not

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disabled at the relevant times and not entitled to benefits.

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As you know, my the scope of review in this matter

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is narrow.

My task is limited to determining whether

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substantial evidence supports the finding of the agency and

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that correct, legal principles were applied.

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deferential standard.

It is a very

The first argument made is that the remand order

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was not followed and I agree with that in a couple of

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respects.

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Appeals Council's order, including at 560 and 561, that the

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Appeals Council was looking for something very definitive

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when it comes to environmental restrictions that would be

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incorporated into an RFC finding and, thereafter, presented

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to a vocational expert for a determination of whether, with

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those limitations, plaintiff could perform work available in

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the national economy.

First, I think it's clear from the Social Security

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Broton v. Colvin - 16-CV-262

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It, also, very clearly indicates that a better

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rational should be given for rejection of Dr. Polachek's

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opinions as a treating physician, even though it's clear he's

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not a specialist.

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physician, treated plaintiff for 20 years and his opinions

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are controlling, unless they are not supported by medically

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accepted clinical and laboratory diagnostic techniques or

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inconsistent with other substantial evidence, in which case,

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that should have been explained.

But, nonetheless, he is a treating

In this case, the rejection of Dr. Polachek's

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opinions concerning irritants, including dust fumes,

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perfumes, humidity and so forth was not explained and, more

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importantly, his opinion about absence more than four days

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per month and a similar opinion by Nurse Practitioner

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Cahill-Hoy are not referenced and are not explained by -- are

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not discussed by the administrative law judge.

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they were rejected because the vocational expert testified

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that, with absences of more than four days per month, there

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would be no jobs in the national economy that plaintiff could

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perform.

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transcript.

But, clearly,

That's at Page 523 of the administrative

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So, in my view, the decision is flawed for those

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reasons and the Step 5 determination is, therefore, flawed

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because it is based on faulty residual functional capacity.

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So, I have searched the record and, although this

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Broton v. Colvin - 16-CV-262

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case has a tortured history, I am not able to say with a

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hundred percent conviction that there is overwhelming

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evidence of disability.

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directed finding of disability.

And, so, I am not going to make a

Instead, I'm going to grant judgment on the

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pleadings to plaintiff remanding the matter for further

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proceedings in connection with both my decision and the

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remand order from the Social Security Administration Appeals

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council.

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Thank you both, again, for excellent presentations.
I hope you have a wonderful holiday.

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MS. BURKETT:

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MS. PETERSON:

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(Proceedings adjourned, 2:26 p.m.)

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You, too.

Thank you, your Honor.

Thank you, your Honor.

C E R T I F I C A T I O N

I, DIANE S. MARTENS, Registered Professional
Reporter, DO HEREBY CERTIFY that I attended the foregoing
proceedings, took stenographic notes of the same, that
the foregoing is a true and correct copy of same and the
whole thereof.

____________________________
DIANE S. MARTENS, FCRR