Acquah v. Commissioner Social Security Administration

Filing 11

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 05/11/2017. (hmr)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK LESHONDA N. ACQUAH, Plaintiff, v. Civil Action No. 5:16-CV-1352 (DEP) COMMISSIONER SOCIAL SECURITY ADMINISTRATION, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: LEGAL SERVICES OF CENTRAL NEW YORK 221 S. Warren Street Suite 300 Syracuse, NY 13202 CHRISTOPHER CADIN, 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 REBECCA H. ESTELLE, 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. ยงยง 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 May 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. 2) The Acting Commissioner=s determination that plaintiff was not 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 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: May 11, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x LESHONDA N. ACQUAH, Plaintiff, vs. 5:16-CV-1352 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on May 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 For Plaintiff: LEGAL SERVICES OF CENTRAL NEW YORK 221 S. Warren Street Suite 300 Syracuse, New York 13202 BY: CHRISTOPHER CADIN, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: REBECCA H. ESTELLE, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 16 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 All right. I'll have to let that be 3 the last word. So I have before me a request for judicial 4 review of an adverse determination of the Acting Commissioner 5 pursuant to 42 United States Code Section 405(g) and 6 1383(c)(3). The background is as follows: 7 The plaintiff was 8 born in February of 1975, is currently 42 years old, was 37 9 years old at the time of the alleged onset of her disability, 10 and 39 at the time of the hearing in this matter. 11 5-foot-8 in height and weighs 219 pounds. 12 dominant. 13 college education. 14 has also had customer service training. 15 She is She's right-hand She has a high school diploma and two years of She has a CNA certificate as well. She She lives with her 17-year-old daughter in a 16 two-family house on the first floor of that house. 17 not drive and hasn't since 2012. 18 October 24, 2012, except for an attempt at training at an 19 Express Mart. 20 stopped in that position in December of 2013. 21 worked as a fast food worker, a certified nursing assistant, 22 a customer service representative, she's worked in sales, as 23 a factory worker, and a warehouse packer. 24 324 of the administrative transcript. 25 She does She has not worked since In her past, she was a hair stylist. She She has also That's at 320 and Physically, the plaintiff has been diagnosed with JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 17 1 multiple sclerosis with parathesis, that was in July of 2012. 2 She suffers from numbness and pain from the waist down. 3 also experiences migraine headaches approximately four times 4 per week and fatigue. 5 undergone infusions including in 2012 and twice in 2013. 6 primary physician is Dr. Jianxin Ma. 7 specialist, Dr. Megan Hyland. 8 October 2012, July 2013, December 2013, and June 2014. 9 are all contained in the record. 10 She uses a cane to ambulate. She She has Her She was referred to a She has had MRIs in She also suffers from mental impairments. Those One of 11 the sources or triggers was that her son was killed in 12 February 2013. 13 as suffering from depressive disorder at 323 and 292 and 14 major depressive disorder at 534. 15 for the mental conditions at the Syracuse Community Health 16 Center where she sees Emily Stowell and Dr. Bill Hines. 17 suffers, among other things, from crying spells. 18 That's at 291 and 321. She's been diagnosed She's undergone treatment She Medically she's been treated with Wellbutrin, 19 gabapentin, Gilenya, Topamax, tramadol, trazodone, hydroxy -- 20 hydroxyzine, Copaxone, and Amantadine. 21 Procedurally, the plaintiff applied for Title II 22 and Title XVI benefits on June 20, 2013 alleging an onset 23 date of October 24, 2012. 24 Administrative Law Judge Gregory Hamel on December 3, 2014. 25 The administrative law judge issued a decision on January 30, A hearing was conducted by JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 18 1 2015, and that became a final determination of the agency on 2 September 20, 2016, when the appeals council rejected the 3 request for review of that determination. In his decision, ALJ Hamel applied the familiar 4 5 five-step sequential test for determining disability. At step one he concluded that the plaintiff had not 6 7 engaged in substantial gainful activity since the alleged 8 onset date. At step two he found that she suffers from severe 9 10 impairments including MS, headaches, obesity, and depressive 11 disorder. 12 At step three, he concluded that she did not meet 13 or medically equal any of the listed presumptively disabling 14 impairments. 15 After surveying the medical records, the ALJ 16 concluded that plaintiff retains the residual functional 17 capacity or RFC to perform sedentary work with exceptions 18 including, she can only occasionally climb stairs, balance, 19 stoop, kneel, crouch and crawl, cannot climb ladders, ropes 20 or scaffolds, cannot work in hazardous work environments, can 21 use the hands for frequent but not constant handling, 22 fingering and reaching, can do routine and repetitive tasks 23 only and cannot do tasks requiring more than occasional 24 public contact. 25 Applying that RFC, the administrative law judge JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 19 1 concluded that plaintiff cannot meet the requirements of any 2 of her past relevant work. 3 medical vocational guidelines were to control, a finding of 4 no disability would be required by Grid Rule 201.28. 5 elicited the testimony of a vocational expert and concluded 6 that plaintiff can perform as an addresser, a document 7 preparer, and a cuff folder, and therefore is not disabled. 8 9 He then indicated that if the He As you know, my task is limited to determining whether correct legal principles were applied and substantial 10 evidence supports the ALJ's determination. 11 deferential standard. 12 It is a highly Obviously pivotal to the ALJ's finding was his 13 rejection of the two opinions of Dr. Hyland and of Dr. Hines 14 and Emily Stowell concerning absenteeism. 15 doubt that the vocational expert concluded that if plaintiff 16 was absent with the frequency opined by those individuals in 17 their medical source statements, she would be disabled. 18 would not -- there would not be any work available that she 19 could perform in the national and local economy. 20 for rejection of those appears at page 26, in the first 21 paragraph. 22 weight is given to Dr. Hyland's statements that the claimant 23 would be absent from work more than four days per month as 24 the ultimate question of disability is reserved to the 25 Commissioner of Social Security Administration." There isn't any She The reason The administrative law judge states, "Little JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 And the 20 1 second paragraph, Dr. Hines' and Ms. Stowell's opinions were 2 rejected -- they weren't rejected, they were given "little 3 weight" because, as noted, the ultimate question of 4 disability is reserved for the Commissioner of Social 5 Security Administration. 6 When you look at the two regulations that control, 7 20 C.F.R. Section 404.1527(d)(1) and (2), and also 20 C.F.R. 8 Section 416.927(d)(1) and (2), the first relates to opinions 9 that you are disabled and a statement that a claimant is 10 disabled clearly is something that's reserved to the 11 Commissioner. 12 consideration of opinions of medical sources, whether they're 13 treating or not treating, on issues such as whether listings 14 are met, the residual functional capacity, or the application 15 of vocational factors, although the final responsibility for 16 deciding the issues clearly is reserved to the Commissioner. 17 (d)(2) reserves -- does allow for This is an extremely interesting issue, and I 18 reviewed very carefully the cases both cited by plaintiff and 19 cited by the Commissioner and also that I found. 20 like Barry v. Colvin are consistent in my view with (d)(2), 21 the regulation. 22 binding on the Commissioner regarding such things as 23 absenteeism, but it doesn't say they shouldn't be considered. 24 Saulic is the same, Saulic v. Colvin from the Northern 25 District of Ohio merely says that the opinion of a treating So cases It only says that the opinions are not JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 21 1 source concerning absenteeism is not entitled to controlling 2 weight, and of course that's a good decision because it notes 3 the split of authority. 4 of New York 2015 at footnote 5, same. 5 cases like Lesterhuis v. Colvin from the Second Circuit 2015, 6 Greek v. Colvin from the Second Circuit 2015, Rugless v. 7 Commissioner, Second Circuit 2013, Gavazzi v. Berryhill from 8 last month, Second Circuit, Smith v. Commissioner, the 9 District of Vermont, 2011, Coleman v. Colvin, Eastern Anderson v. Colvin, Western District But when you look at 10 District of New York, 2017, they all show that opinions 11 concerning absenteeism at least should be considered. And so in this case, the ALJ rejected them out of 12 13 hand. 14 Ms. Estelle give. 15 not consider that opinion as indicating that the plaintiff 16 could not perform gainful employment, if he had related it to 17 treatment notes or related it to the type of disability or 18 disabling -- I'm sorry, medical conditions that the plaintiff 19 suffers from, then I would say that it was properly 20 considered. 21 he considered it, the ultimate question, and therefore 22 rejected it out of hand. 23 He didn't give the explanation that I heard If he had, if he had explained why he did But to me, it's pretty clear from page 26 that On the other hand, I don't find necessarily that 24 there is persuasive evidence of disability. 25 matter that should be returned to the Commissioner for JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 I think it's a 22 1 further consideration of those opinions, and whether or not 2 they should be rejected and if they are rejected or given 3 little weight, there should be a fuller explanation for why. 4 So I grant judgment on the pleadings to the 5 plaintiff without a directed finding of disability, vacate 6 the Commissioner's determination and remand the matter to the 7 agency for further consideration. 8 an interesting case and thank you for excellent 9 presentations. 10 MR. CADIN: 11 MS. ESTELLE: 12 MR. CADIN: 13 Thank you both, this was Thank you, your Honor. Thank you. And thank you, Counselor. (Proceedings Adjourned, 2:35 p.m.) 14 15 16 17 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 May, 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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