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)

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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. 1 2 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 3 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 (315) 234-8547 10 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 3 All right. Thank you, I'll have to let that be the last word. I have before me a request for judicial review of 4 5 an adverse determination by the Acting Commissioner 6 concluding that the plaintiff was not disabled at the 7 relevant times and therefore ineligible for the benefits 8 sought. 9 Section 405(g). The request is pursuant to 42 United States Code The background is as follows: 10 The plaintiff was 11 born in June of 1962 and is currently 50 -- approaching 55 12 years old, she was 48 years old at the onset of her 13 disability and 50 at the time of the first hearing. 14 5 foot 5 inches tall, weighs 160 pounds, and right-hand 15 dominant. 16 She has a high school diploma and one year of -- 17 approximately one year of college education. 18 has a CDL license. She lives with a boyfriend in Lafayette, New York. She drives and She last worked in December of 2010. 19 She is She left her 20 position, she claims, due to anxiety and depression and a hip 21 issue. 22 to December 2010 in various positions, initially as a 23 stenographer and a clerk/typist, then a gas meter technician, 24 and lastly in a warehouse in a truck driving situation, from 25 2005 to 2010. She worked for Niagara Mohawk Power Company from 1986 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 11 She contends that she is unable to work due to hip 1 2 and groin pain, numbness, and tingling in her arms and hands, 3 neck pain, knee pain, lower back pain, and headaches. 4 also suffers from asthma or history of asthma, although it 5 seems to have resolved after she left the warehouse setting, 6 and carpal tunnel syndrome bilaterally. She The plaintiff underwent MRI testing in June of 2010 7 8 and was found that she suffered from mild to moderate 9 degenerative disk degeneration in C5-C6 level with some 10 spurring. 11 which showed degenerative changes and stenosis with foraminal 12 narrowing at the C5-C6 level. 13 March 27, 2013. 14 C6 and C7. 15 has been addressed through nerve blocks. 16 lumbar spine was conducted, it's not clear when but it's 17 reported in a doctor's note of November 27, 2012, showing a 18 disk bulge at L4 and L5 that's also been addressed with nerve 19 blocks. 20 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 21 activities. She reports attending sporting events, watching 22 television, cleaning, walking on a treadmill, some cooking, 23 laundry, shopping two to three times a week, she can attend 24 to her personal hygiene, she can use the computer, she cares 25 for her two-and-a-half-year-old grandson, she has no hobbies JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 12 1 but she does read and socialize with friends. 2 October of 2011 she indicated she planned to attend school 3 full time, that's at page 638, at the time she was attending 4 part time. 5 She, in Procedurally, plaintiff applied for Title II 6 disability benefits on July 19, 2011, alleging an onset date 7 of December 6, 2010. 8 Administrative Law Judge Marie Greener on December 4, 2012. 9 On February 5, 2013, ALJ Greener issued a decision finding 10 that the plaintiff was not disabled at the relevant times. 11 The Social Security Appeals Council remanded the matter on 12 May 13, 2014. 13 September 4, 2014. 14 November 5, 2014, and that became a final determination of 15 the agency on May 23, 2016 when the Appeals Council denied 16 plaintiff's request for review. 17 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, 18 ALJ Greener applied the well-known and noncontroversial 19 five-step test for determining disability. 20 At step 1 she found that the plaintiff had not 21 engaged in substantial gainful activity since the alleged 22 onset date. 23 At step 2, she found that the plaintiff does suffer 24 from severe impairments including lumbar spine disk bulge, 25 cervical spine herniated nucleus pulposus with radiculopathy, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 13 1 2 chronic right hip tendinitis, and asthma. At step 3 she concluded, however, that none of the 3 conditions found at step 2 met or medically equaled any of 4 the listed presumptively disabling conditions set forth in 5 the Commissioner's regulations. 6 At the next step, before going to step 4, the ALJ 7 surveyed medical evidence and concluded that plaintiff 8 retains the residual functional capacity, or RFC, to perform 9 a full range of sedentary work, that she, although she refers 10 to her as a he, can lift and carry up to 10 pounds 11 occasionally, less than 10 pounds frequently, sit for a total 12 of six hours in an eight-hour workday, and stand/walk for 15 13 minutes at one time, and a total of two hours in an 14 eight-hour workday. 15 and standing, with sitting limited to 60 minutes at one time 16 after which she needs to stand for five minutes; however, she 17 does not have to leave her work area or station during the 18 change in position. 19 indoor environment with good air quality such as in an office 20 or retail establishment. 21 She needs to alternate between sitting Additionally, the claimant requires an At step 4, with the benefit of the vocational 22 expert who testified at the second hearing, the ALJ concluded 23 that plaintiff cannot perform her past relevant work in any 24 of the positions that she held. 25 At step 5, again, in reliance upon testimony from JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 14 1 the vocational expert and a hypothetical that was posed that 2 approximated closely the RFC finding, ALJ Greener concluded 3 that plaintiff can perform available work in the national 4 economy including as a benefits clerk, an order clerk, and a 5 credit card control clerk, and therefore is not disabled. As you know, my task is very limited and very 6 7 deferential. I must determine whether correct legal 8 principles were applied and substantial evidence supports the 9 determination. I have some difficulties with the determination. 10 11 Obviously the medical source statements from the two treating 12 physicians, Dr. Sneider and Dr. Masten, are inconsistent with 13 the RFC in a couple of ways, predominantly with respect to 14 the sitting limitation, and also reaching, as counsel has 15 argued. 16 to controlling weight, unless they -- as long as they are 17 supported by medically acceptable clinical and laboratory 18 diagnostic techniques and are not inconsistent with other 19 substantial evidence. 20 they're contrary to other substantial evidence in the record, 21 including the opinions of other medical experts. 22 Obviously those individuals' opinions are entitled Conversely, they're not controlling if The sitting and reaching portions of those opinions 23 were rejected. I don't find that they are contrary to 24 substantial evidence in the record, and I don't find that the 25 reasoning stated by the administrative law judge comports JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 15 1 with the Second Circuit's decision in Greek v. Colvin 2 reported at 802 F.3d 370, and here are my specific problems. 3 First of all, Administrative Law Judge Greener 4 misstates the date of Dr. Sneider's first opinion. She 5 claims it was in November 2011; it's very clearly November of 6 2012, that the signature page clearly indicates that. 7 looking for the precise -- that's at page 628, the opinion 8 was signed November 20, 2012. 9 ALJ Greener relies on some very dated statements and I'm And in rejecting that opinion, 10 treatment notes, including a note from Dr. Scuderi that is 11 dated May 4, 2011 which is a year and a half prior, saying 12 that the claimant is very active with running, weight 13 lifting, and martial arts. 14 evidence and it shows deterioration and there is reference in 15 there that she's no longer able to work out like she 16 originally was. 17 I've reviewed the medical Similarly, in rejecting Dr. Sneider's November 2012 18 report, the ALJ relies on a February 18, 2011 note where 19 Dr. Sneider found that the claimant moved well with a 20 straight spine and negative straight leg raising. 21 that's a year and a half prior to the date of the opinion. 22 Again, The rejection of Dr. Masten whose opinion from 23 November 2012 is also inconsistent with the RFC finding in 24 the areas of sitting and reaching is not well explained and 25 not supported by substantial evidence. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 And so in my view, this matter should be remanded 2 without a directed finding of disability so that a more clear 3 rationale can be given for why the opinions of Dr. Masten and 4 Dr. Sneider, which are internally basically consistent, 5 should be rejected. 6 I was not impressed, I did review Dr. Rabelo's 7 statement, I don't think that that provides substantial 8 evidence to the contrary, particularly -- and also the 9 consultative exam of Dr. Manyam which was not particularly 10 persuasive, and also occurred in November 2011, a year before 11 Dr. Sneider's opinion. 12 And so I will grant judgment on the pleadings to 13 the plaintiff without a directed finding of disability, and 14 hope you both have a good day. 15 MR. DOLSEN: 16 MS. ZURBRUGG: 17 Thank you. Thank you, Judge. Thank you, your Honor. (Proceedings Adjourned, 10:32 a.m.) 18 19 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 9th day of March, 2017. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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