Hill v. Commissioner of Social Security

Filing 14

ORDER: Plaintiff's # 9 Motion for Judgment on the Pleadings is GRANTED, 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. Defendant's # 12 Motion for Judgment on the Pleadings is DENIED. The # 1 Complaint - Social Security Appeal is hereby REMANDED to the Acting Commissioner, without a directed for further proceedings consistent with this determination . The Clerk is directed to enter Judgment based upon this determination, remanding the matter to the Acting Commissioner pursuant to sentence four of 42 USC section 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 8/28/2018. (jmb)

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

MARK A. H.,
Plaintiff,
v.

Civil Action No.
5:17-CV-1310 (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.
GREGORY FAIR, ESQ.

FOR DEFENDANT
HON. GRANT C. JAQUITH
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

GREGORY MORRISON, 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 August 23, 2018, 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.

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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:

August 28, 2018
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
MARK A. H.,
Plaintiff,
vs.

17-CV-1310

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
----------------------------------------------------x
Decision - August 23, 2018
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:

LAW OFFICES OF STEVEN R. DOLSON
Attorneys at Law
126 North Salina Street
Syracuse, New York 13202
BY: GREGORY P. FAIR, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza
New York, New York 10278
BY: GRAHAM MORRISON, ESQ.

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

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Decision - 17-cv-1310 - 8/23/2108
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THE COURT:

I have before me a request for a

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judicial review of an adverse determination by the Acting

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Commissioner pursuant to 42 United States Code, Section

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405(g).

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The background is as follows.
The plaintiff was born in November of 1959.

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math he is currently 58 years old.

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the date of the amended onset date of his disability.

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lives in Syracuse in a senior housing facility on the

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eighth floor.

By my

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He was 54 years old at
He

He is 5-foot 6-inches tall and weighs

154 pounds.
Plaintiff does not possess a driver's license.

He

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has a Bachelor's Degree in accounting.

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United States Air Force from 1982 to 1991.

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1991 or in September of 1993, depending on whether you look

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at Administrative Transcript 33 or 174, he became a United

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States Postal Service mail handler, a position from which he

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retired in September 2005.

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worked for Southern Global Services as a telemarketer in

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customer service.

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Transcript page 36, when his job was outsourced.

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Plaintiff was in the
In September of

In May of 2007 to May of 2010 he

He left, according to Administrative

In terms of health, plaintiff suffers from

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degenerative joint disease bilaterally of the hips, and

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arthritis.

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Administration Medical Center.

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transitioned to Dr. Robert Sherman at Upstate Medical Center.

He originally treated at the Veterans
In February of 2016 he

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Decision - 17-cv-1310 - 8/23/2108
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In August of 2014 he presented at the emergency

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room with difficulties but it was noted he was doing well.

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He appeared at an ortho exam on August 25, 2014 where it was

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indicated he was using a cane.

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therapy but was discharged for nonattendance.

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2015 he was noted to be using a cane and again in May of

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2016.

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He was referred to physical
In April of

Plaintiff had a left total hip replacement in May
of 2016.

At the end of two weeks, according to page 500 of

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the Administrative Transcript, he was doing relatively well,

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and at six weeks he was doing wonderfully.

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at page 502 of the Administrative Transcript.

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a cane and has since 2012.

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to that during the hearing.

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indicated during oral argument, noted in her report at

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page 338 the plaintiff was not using assistive devices.

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That is the quote

That's at page 42.

Plaintiff uses
He testified

Although Dr. Ganesh, as I

Plaintiff has been taking hydrocodone for three

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years.

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medication makes him drowsy.

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pain level is four out of ten without medication and three

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out of ten with his prescribed drugs.

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That's at page 46.

As a side effect, at page 44, the
The plaintiff reports that his

In terms of daily activities plaintiff plays cards,

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plays chess, socializes, cooks, does laundry, does some

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cleaning, shops weekly, showers, dresses, reads and watches

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television.

That's at page 338 and 38 to 40 of the

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Decision - 17-cv-1310 - 8/23/2108
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Administrative Transcript.

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Procedurally plaintiff applied for Title II

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disability insurance benefits on August 6, 2014.

He

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originally alleged an onset date of August 14, 2012, but that

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date was amended to August 6, 2014.

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on January 6, 2017 by Administrative Law Judge Kenneth

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Theurer.

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on February 10, 2017 finding plaintiff was not disabled at

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the relevant times and, therefore, ineligible for benefits.

A hearing was conducted

Administrative Law Judge Theurer issued a decision

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That became a final decision of the Agency on November

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14, 2017 when the Social Security Administration Appeals

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Council denied plaintiff's request for review.

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In his decision ALJ Theurer applied the familiar
five-step sequential test for determining disability.
At step one he concluded that plaintiff had not

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engaged in substantial gainful activity from August 6, 2014

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through his last insured date of December 31, 2016.

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At step two ALJ Theurer found that plaintiff

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suffers from degenerative joint disease of the hips as a

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severe impairment.

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At step three, however, he concluded that the

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impairment did not meet or medically equal any of the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations, and focusing on listing 1.02.

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After surveying the medical evidence, the ALJ

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Decision - 17-cv-1310 - 8/23/2108
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determined that plaintiff retained the residual functional

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capacity to occasionally lift 10 pounds; sit for

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approximately six hours; stand or walk for approximately two

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hours in an eight-hour day with normal breaks; occasionally

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climb ramps or stairs, but never climb a ladder, rope or

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scaffold; occasionally balance, stoop, kneel, crouch and

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crawl; would require the use of a cane or crutch for

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prolonged ambulation, walking on uneven terrain, or ascending

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and descending slopes, but would retain the ability to carry

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small objects, such as a file, in the free hand; and he would

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need to be able to alternate from a seated to a standing

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position or vice versa two times per hour for no more than

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five minutes while remaining on task.

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Applying that RFC, the Administrative Law Judge

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concluded at step four that plaintiff is capable of

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performing his past relevant work as a customer complaint

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clerk based on how that position was performed at Southern

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Global Services, and with the aid of a vocational expert also

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concluded that he could meet the requirements of that

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position as generally performed, even though the DOT entry

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for that position does not include a sit/stand option.

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therefore, the ALJ concluded that plaintiff was not disabled

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at the relevant times.

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And,

As you know, my task is limited to determining
whether correct legal principles were applied and substantial

Decision - 17-cv-1310 - 8/23/2108
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evidence supports the determination.

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listing is an interesting one.

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requires, among other things, an inability to ambulate

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effectively as defined in 1.00(B)(2)(b).

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The argument about the

Clearly to meet listing 1.02

That definitional section requires that,

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"Individuals must be capable of sustaining a reasonable

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walking pace over a sufficient distance to be able to carry

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out activities of daily living.

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to travel without companion assistance to and from a place of

They must have the ability

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employment or school."

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indicated, to provide, "Examples of ineffective ambulation

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include, but are not limited to, the inability to walk

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without the use of a walker, two crutches or two canes, the

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inability to walk a block at a reasonable pace on rough or

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uneven surfaces, the inability to use standard public

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transportation, the inability to carry out routine ambulatory

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activities, such as shopping and banking, and the inability

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to climb a few steps at a reasonable pace with the use of a

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single handrail."

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And then it goes on, as counsel

In this case the Administrative Law Judge rejected

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listing 1.02 in a very short paragraph without any

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elaboration as to why.

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could guess from the rest of the decision the basis for doing

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that, the focus being on effective ambulation, there is

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really -- there is no analysis that would allow the Court to

And although I think you probably

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Decision - 17-cv-1310 - 8/23/2108
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make meaningful judicial review.

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It is the Administrative Law Judge's duty to

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explain his or her determination at step three.

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clear in such cases that were cited by the plaintiff as

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Stephens versus Colvin, 200 F.Supp.3d 349, and Gustafson

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versus Commissioner of Social Security found at 2012 WL

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5866080.

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That is made

I do acknowledge that it is the plaintiff's burden
to show that he meets a listed impairment under Poupore and

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Campbell.

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fatal to an ALJ's determination if there is no explanation at

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step three as long as rationale can be gleaned from the

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balance of the ALJ's decision.

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of Social Security, 371 F. App'x 109; Berry versus Schweiker,

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675 F.2d 464; and Gustafson versus Commissioner of Social

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Security, a case that was cited a moment ago, also standing

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for that proposition.

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I also acknowledge that it is not necessarily

Salmini versus Commissioner

But here there's, as I said, no discussion of

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effective ambulation.

The medical evidence supports the need

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for plaintiff's use of at least one assistive device.

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medical evidence shows, for example, hip X-rays from

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August 5, 2014 degenerative changes in both hips, severe

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degenerative changes, increase in left hip from the prior

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study, and the right hip near total loss of joint space

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superiorly with subchondral sclerosis.

The

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Decision - 17-cv-1310 - 8/23/2108
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There is considerable evidence of the use of

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assistive devices at page 305, under gait, "uses cane in the

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morning, uses walker when moving around when very stiff."

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Maximum number of stairs patient is able to perform with

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railings is three steps.

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medical records that were cited by the plaintiff's counsel

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that support the use of assistive devices.

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examiner at 338, Dr. Ganesh, noted plaintiff's walk with a

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limp.

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340.

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The plaintiff stated he needs a cane and the ALJ, in fact,

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concluded at page 16 that plaintiff required the use of a

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cane.

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And there are other entries in the

The consultative

Limitations in climbing were noted by Dr. Ganesh at
Limitations on walking was noted by Dr. Sherman at 506.

So because of these entries and because it is such

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a close call as to whether or not plaintiff is able to

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ambulate effectively, I am unable to make an informed

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judicial review of the Commissioner's determination to

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ascertain whether it was based on substantial evidence.

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Frankly, there should have been much better explanation or

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any explanation at step three by the ALJ as to why he

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rejected listing 1.02.

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So I will grant judgment on the pleadings to the

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plaintiff.

I don't find any persuasive evidence of

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disability such that I would direct a finding of disability.

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I think this matter should be remanded for consideration, and

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Decision - 17-cv-1310 - 8/23/2108
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specifically at step three why listing 1.02 was not met by

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the plaintiff.

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So I will remand the matter without a directed
finding of disability.
Thank you both for excellent presentations.

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forward to working with you again.

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Thank you.
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I look

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