Hill v. Commissioner of Social Security

Filing 15

ORDER: It is ORDERED that Plaintiff's motion for judgment on the pleadings is GRANTED. It is further ORDERED that the Acting Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to ben efits 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. It is further ORDERED that the clerk is r espectfully 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 3/31/2017. (mc)

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

KATHY M. HILL,
Plaintiff,
v.

Civil Action No.
5:16-CV-0677 (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

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

CATHARINE ZURBRUGG, 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), are cross-motions
for judgment on the pleadings.1 Oral argument was conducted in
connection with those motions on March 9, 2017, 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.

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,

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: March 31, 2017
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
KATHY HILL,
Plaintiff,
vs.

5:16-CV-677

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on March 9, 2017, at the
James Hanley Federal Building, 100 South Clinton
Street, Syracuse, New York, the 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. DOLSEN, ESQ.
Attorney at Law
126 N. Salina Street
Suite 3B
Syracuse, New York 13202

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
BY: CATHARINE L. ZURBRUGG, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

Thank you, I'll have to let

that be the last word.
I have before me a request for judicial review of

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an adverse determination by the Acting Commissioner

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concluding that the plaintiff was not disabled at the

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relevant times and therefore ineligible for the benefits

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sought.

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Section 405(g).

The request is pursuant to 42 United States Code

The background is as follows:

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The plaintiff was

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born in June of 1962 and is currently 50 -- approaching 55

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years old, she was 48 years old at the onset of her

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disability and 50 at the time of the first hearing.

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5 foot 5 inches tall, weighs 160 pounds, and right-hand

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dominant.

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She has a high school diploma and one year of --

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approximately one year of college education.

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has a CDL license.

She lives with a boyfriend in Lafayette, New York.

She drives and

She last worked in December of 2010.

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She is

She left her

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position, she claims, due to anxiety and depression and a hip

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issue.

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to December 2010 in various positions, initially as a

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stenographer and a clerk/typist, then a gas meter technician,

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and lastly in a warehouse in a truck driving situation, from

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2005 to 2010.

She worked for Niagara Mohawk Power Company from 1986

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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She contends that she is unable to work due to hip

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and groin pain, numbness, and tingling in her arms and hands,

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neck pain, knee pain, lower back pain, and headaches.

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also suffers from asthma or history of asthma, although it

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seems to have resolved after she left the warehouse setting,

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and carpal tunnel syndrome bilaterally.

She

The plaintiff underwent MRI testing in June of 2010

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and was found that she suffered from mild to moderate

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degenerative disk degeneration in C5-C6 level with some

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spurring.

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which showed degenerative changes and stenosis with foraminal

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narrowing at the C5-C6 level.

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March 27, 2013.

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C6 and C7.

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has been addressed through nerve blocks.

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lumbar spine was conducted, it's not clear when but it's

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reported in a doctor's note of November 27, 2012, showing a

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disk bulge at L4 and L5 that's also been addressed with nerve

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blocks.

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An MRI was again administered in April of 2013,

An EMG study was performed on

It demonstrated bilateral radiculopathy at

An MRI of the hip showed a mild labral tear which
An MRI of the

The plaintiff has a fairly wide range of daily

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activities.

She reports attending sporting events, watching

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television, cleaning, walking on a treadmill, some cooking,

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laundry, shopping two to three times a week, she can attend

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to her personal hygiene, she can use the computer, she cares

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for her two-and-a-half-year-old grandson, she has no hobbies

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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but she does read and socialize with friends.

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October of 2011 she indicated she planned to attend school

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full time, that's at page 638, at the time she was attending

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part time.

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She, in

Procedurally, plaintiff applied for Title II

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disability benefits on July 19, 2011, alleging an onset date

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of December 6, 2010.

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Administrative Law Judge Marie Greener on December 4, 2012.

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On February 5, 2013, ALJ Greener issued a decision finding

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that the plaintiff was not disabled at the relevant times.

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The Social Security Appeals Council remanded the matter on

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May 13, 2014.

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September 4, 2014.

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November 5, 2014, and that became a final determination of

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the agency on May 23, 2016 when the Appeals Council denied

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plaintiff's request for review.

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A hearing was conducted by

A subsequent hearing was conducted on
ALJ Greener issued a second decision on

In her decision, the second decision I should say,

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ALJ Greener applied the well-known and noncontroversial

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five-step test for determining disability.

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At step 1 she found that the plaintiff had not

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engaged in substantial gainful activity since the alleged

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onset date.

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At step 2, she found that the plaintiff does suffer

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from severe impairments including lumbar spine disk bulge,

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cervical spine herniated nucleus pulposus with radiculopathy,

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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chronic right hip tendinitis, and asthma.
At step 3 she concluded, however, that none of the

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conditions found at step 2 met or medically equaled any of

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the listed presumptively disabling conditions set forth in

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the Commissioner's regulations.

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At the next step, before going to step 4, the ALJ

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surveyed medical evidence and concluded that plaintiff

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retains the residual functional capacity, or RFC, to perform

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a full range of sedentary work, that she, although she refers

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to her as a he, can lift and carry up to 10 pounds

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occasionally, less than 10 pounds frequently, sit for a total

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of six hours in an eight-hour workday, and stand/walk for 15

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minutes at one time, and a total of two hours in an

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eight-hour workday.

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and standing, with sitting limited to 60 minutes at one time

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after which she needs to stand for five minutes; however, she

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does not have to leave her work area or station during the

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change in position.

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indoor environment with good air quality such as in an office

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or retail establishment.

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She needs to alternate between sitting

Additionally, the claimant requires an

At step 4, with the benefit of the vocational

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expert who testified at the second hearing, the ALJ concluded

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that plaintiff cannot perform her past relevant work in any

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of the positions that she held.

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At step 5, again, in reliance upon testimony from

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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the vocational expert and a hypothetical that was posed that

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approximated closely the RFC finding, ALJ Greener concluded

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that plaintiff can perform available work in the national

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economy including as a benefits clerk, an order clerk, and a

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credit card control clerk, and therefore is not disabled.
As you know, my task is very limited and very

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deferential.

I must determine whether correct legal

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principles were applied and substantial evidence supports the

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determination.
I have some difficulties with the determination.

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Obviously the medical source statements from the two treating

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physicians, Dr. Sneider and Dr. Masten, are inconsistent with

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the RFC in a couple of ways, predominantly with respect to

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the sitting limitation, and also reaching, as counsel has

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argued.

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to controlling weight, unless they -- as long as 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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they're contrary to other substantial evidence in the record,

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including the opinions of other medical experts.

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Obviously those individuals' opinions are entitled

Conversely, they're not controlling if

The sitting and reaching portions of those opinions

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were rejected.

I don't find that they are contrary to

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substantial evidence in the record, and I don't find that the

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reasoning stated by the administrative law judge comports

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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with the Second Circuit's decision in Greek v. Colvin

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reported at 802 F.3d 370, and here are my specific problems.

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First of all, Administrative Law Judge Greener

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misstates the date of Dr. Sneider's first opinion.

She

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claims it was in November 2011; it's very clearly November of

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2012, that the signature page clearly indicates that.

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looking for the precise -- that's at page 628, the opinion

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was signed November 20, 2012.

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ALJ Greener relies on some very dated statements and

I'm

And in rejecting that opinion,

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treatment notes, including a note from Dr. Scuderi that is

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dated May 4, 2011 which is a year and a half prior, saying

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that the claimant is very active with running, weight

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lifting, and martial arts.

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evidence and it shows deterioration and there is reference in

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there that she's no longer able to work out like she

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originally was.

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I've reviewed the medical

Similarly, in rejecting Dr. Sneider's November 2012

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report, the ALJ relies on a February 18, 2011 note where

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Dr. Sneider found that the claimant moved well with a

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straight spine and negative straight leg raising.

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that's a year and a half prior to the date of the opinion.

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Again,

The rejection of Dr. Masten whose opinion from

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November 2012 is also inconsistent with the RFC finding in

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the areas of sitting and reaching is not well explained and

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not supported by substantial evidence.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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And so in my view, this matter should be remanded

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without a directed finding of disability so that a more clear

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rationale can be given for why the opinions of Dr. Masten and

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Dr. Sneider, which are internally basically consistent,

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should be rejected.

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I was not impressed, I did review Dr. Rabelo's

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statement, I don't think that that provides substantial

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evidence to the contrary, particularly -- and also the

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consultative exam of Dr. Manyam which was not particularly

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persuasive, and also occurred in November 2011, a year before

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Dr. Sneider's opinion.

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And so I will grant judgment on the pleadings to

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the plaintiff without a directed finding of disability, and

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hope you both have a good day.

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MR. DOLSEN:

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MS. ZURBRUGG:

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Thank you.

Thank you, Judge.
Thank you, your Honor.

(Proceedings Adjourned, 10:32 a.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 9th day of March, 2017.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]