McBee v. Colvin

Filing 19

ORDER that pltf's motion for judgment on the pleadings is GRANTED; the Commissioner's determination that pltf was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED; the matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination; and the Clerk is respectfully directed to enter judgment, based upon this determination, remanding the matter to the Commissioner pursuant to sentence four of 42 U.S.C. 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 1/26/2015. (see)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK SKIEWAYNE McBEE, Plaintiff, v. Civil Action No. 6:14-CV-524 (DEP) CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF ANTONOWICZ LAW FIRM 148 West Dominick Street Rome, New York 13440 PETER W. ANTONOWICZ, 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 SUSAN J. REISS, ESQ. Special Assistant U.S. Attorney DAVID E. PEEBLES 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 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 January 21, 2015, 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 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. 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 (formerly, General Order No. 43) which was issued by the Hon. Ralph W. Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on September 12, 2003. Under that General Order an action such as this is considered procedurally, once issue has been joined, 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 2) The 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 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 Commissioner pursuant to sentence four of 42 U.S.C. ' 405(g) and closing this case. Dated: January 26, 2015 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SKIEWAYNE MCBEE, Plaintiff, vs. 14-CV-524 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of DECISION (Telephone Conference) held on January 21, 2015, 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: PETER W. ANTONOWICZ Attorney at Law 148 West Dominick Street Rome, New York 13440 For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: SUSAN J. REISS, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 2 1 THE COURT: All right. I'll have to let that be 2 the last word. 3 appreciate they're very comprehensive and your presentations 4 were equally comprehensive. 5 I reviewed your submissions carefully and I As you know, my task is limited in this case. I'm 6 reviewing the Commissioner's decision under 42, United States 7 Code, Section 405(g). 8 determine whether the correct legal principles were applied 9 and whether the decision is supported by substantial The standard that I must apply is to 10 evidence. 11 such relevant evidence as a reasonable mind might accept as 12 adequate to support a conclusion. 13 The term substantial evidence being defined as By way of background, the plaintiff in this case 14 was born in June of 1977. He was 35 years old at the time of 15 the administrative hearing in this case. 16 my math serves me correctly. 17 education. 18 graduate. 19 with his fiance, her mother and father and two young 20 children. 21 CNA, or Certified Nursing Assistant, certificate and has 22 worked as a nurse's aide. 23 mental health treatment over the years with various diagnoses 24 including depressive disorder, anxiety disorder, borderline 25 intellectual functioning, bipolar disorder, and post Is currently 37, if He has an eleventh grade He was in special education classes. He did not He was expelled from school for smoking. He has no driver's license. He lives He does possess a He has undergone significant 3 1 traumatic stress disorder, or PTSD. 2 drug and alcohol abuse. 3 He also has a history of The plaintiff does use an inhaler and has a history 4 of asthma, but that seems to be fairly controlled and really 5 doesn't come into play in this case. 6 He treats currently with Dr. Vidya Patil and has 7 since late 2011. 8 plaintiff has been prescribed Depakote, Remeron, Paxil, 9 Seroquel and Ativan. 10 Dr. Patil is a psychiatrist. Over time He last worked in or about 2011 and did collect 11 unemployment benefits after losing that position. 12 Procedurally the plaintiff applied for disability insurance 13 and SSI benefits on June 23, 2011, alleging an onset date of 14 November 30, 2010. 15 Law Judge Robert Gale on January 29, 2013. 16 a decision on February 1, 2013. 17 final determination of the agency when the Social Security 18 Administration Appeals Council denied review on April 15, 19 2014. 20 A hearing was conducted by Administrative Judge Gale issued The determination became a In terms of the ALJ's decision, he went through the 21 now familiar five step test for determining disability. 22 After finding that plaintiff was insured to June 30, 2016 and 23 had not engaged in substantial gainful activity since 24 November 30, 2010, he concluded at step two that he suffers 25 from asthma, depressive disorder, anxiety disorder and 4 1 borderline intellectual functioning. 2 He found at step three, however, that none of these 3 severe conditions either individually or collectively meet or 4 equal any of the listed presumptively disabling conditions, 5 and in that regard he considered listings 3.02, 3.03, 12.02, 6 12.04, 12.05 and 12.06. 7 The Administrative Law Judge then went on to 8 conclude that the plaintiff has a residual functional 9 capacity, or RFC, to perform a full range of work at all 10 exertional levels but with the need to avoid concentrated 11 exposure to respiratory irritants such as fumes, odors, dust 12 and gases. 13 understand and follow simple instructions and directions, 14 perform simple tasks with supervision and independently, 15 maintain attention and concentration for simple tasks, 16 regularly attend to a routine and maintain a schedule, relate 17 to and interact appropriately with others to the extent 18 necessary to carry out simple tasks, and to handle reasonable 19 levels of simple, repetitive work-related stress in that he 20 can make occasional decisions directly related to the 21 performance of simple tasks in a position with consistent job 22 duties that does not require the claimant to supervise or 23 manage the work of others. 24 25 Additionally, he retains the ability to At step four, Judge Gale concluded that the plaintiff is capable of performing past relevant work, but 5 1 went on at step five to apply the grids and conclude that 2 despite his non-exertional limitations, the job base on which 3 the grids are predicated was not sufficiently eroded to 4 require the services of a vocational expert and concluded 5 that under the grids there would also be a directed finding 6 of no disability. 7 The crux of the case in my estimation is the 8 treatment of Dr. Patil's medical source statement as well as 9 Dr. Caldwell's consultative examination and the results of 10 11 that examination. Dr. Patil is a psychiatrist and therefore highly 12 specialized. 13 extended period of time. 14 of therapists that plaintiff has seen are in the record. 15 I've reviewed them carefully. 16 plaintiff has extreme limitations in the ability to relate to 17 acquaintances and familiar people, deal with the public, deal 18 with stress, maintain attention and concentration, understand 19 and remember and carry out complex instructions, and relate 20 predictably in social situations, and he is markedly limited 21 in behaving in an emotionally stable manner. 22 He has been treating the plaintiff for an His office notes as well as those Dr. Patil indicates that the I think by anyone's account this report is 23 inconsistent with the RFC finding of Judge Gale and with the 24 ability to perform meaningful work available in the economy. 25 I am unconvinced that the ALJ properly considered 6 1 the relevant factors and properly dismissed Dr. Patil's 2 report. 3 equivocal in showing some improvement with medication, still 4 show flat affect and anxious mood, for example, at 514. 5 Anxious and nervous at 494. 6 No change on January 9, 2012 at 468. 7 2011, improving, still hard to get along with others and mood 8 swings. 9 I've reviewed his notes, and his notes, although Anxious and frustrated at 480. At 465 for December 14, And I could go on. The findings of Dr. Caldwell are not totally 10 inconsistent with Dr. Patil and demonstrate limitations and 11 inabilities that are inconsistent also with the RFC. 12 is also indication from others, although not in any detail, 13 that the plaintiff is not capable of working. 14 reference from Bassett Hospital at page 394 that the 15 plaintiff is not capable of working. 16 one by Dr. Ali Shehzad on March 17, 2011. 17 progress note indicates that the plaintiff is not capable of 18 working. 19 Meigs, who has worked with the plaintiff for two years, 20 opined in January of 2013 that plaintiff has the most severe 21 attention problems and anxiety that she has ever seen. 22 That's at page 515. 23 There There is a This might be the same Page 3 of 11F in a Someone that knows the plaintiff very well, Terri In my view Dr. Patil's medical source statement is 24 not inconsistent with his treatment notes, not inconsistent 25 with other evidence in the record other than a non-examining 7 1 individual who reviewed the records in November of 2011, 2 Dr. Teztzo, and it was not properly explained. 3 the ALJ's apparent fixation on plaintiff's desire to get the 4 necessary paperwork to support his disability claim does not 5 translate into either a lack of credibility on his part or 6 does it undermine Dr. Patil's source statement. 7 I agree that I also think that it's a leap to say that because 8 the plaintiff can get along with his fiance and his fiance's 9 parents who he lives with, that he therefore can get along 10 with others in a workplace setting. 11 that the ALJ made that was unwarranted, frankly. 12 agree with the plaintiff that there could be and should be 13 more focus on cognitive defects of the plaintiff. 14 find, however, that there is such persuasive evidence of 15 disability as to warrant setting aside the determination and 16 remanding for calculation of benefits only. 17 this could use a fresh set of eyes, frankly. 18 I think that was a leap I also I do not I think that And I therefore will grant judgment on the 19 pleadings to the plaintiff, vacate the Commissioner's 20 determination and remand without a directed finding of 21 disability for further consideration. 22 excellent presentations. 23 MR. ANTONWICZ: 24 THE COURT: 25 MR. ANTONWICZ: Thank you both for Your Honor? Yes. I hate to interrupt. But when you 8 1 say a fresh set of eyes, you do realize that if this goes 2 back on remand without some direction from you that keeps it 3 from going back to the same judge, this will go back to the 4 same ALJ. 5 THE COURT: I recognize that. I didn't find enough 6 indication in the record to suggest that it should go to 7 someone other than Judge Gale, and so fresh set of eyes 8 probably was not the appropriate statement. 9 that it should be reviewed and he should take another look at But I do think 10 Dr. Patil's medical source statement, Dr. Caldwell's 11 consultative exam, and may find it appropriate as you have 12 argued to ask for more specifics concerning the limitations 13 specified in Dr. Caldwell's report. 14 that it may require some intellectual testing to determine 15 whether plaintiff can meet or medically equal any of the 16 listings related to mental retardation. 17 So that's my ruling. And I think that I agree And I will issue a short form 18 order shortly and attach the transcript of this decision to 19 it. Thank you both. 20 MR. ANTONWICZ: 21 MS. REISE: 22 * 23 24 25 Thank you, Your Honor. Thank you, Your Honor. * * 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

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