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)

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

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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
[phone]

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1

THE COURT:

All right.

I'll have to let that be

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the last word.

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appreciate they're very comprehensive and your presentations

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were equally comprehensive.

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I reviewed your submissions carefully and I

As you know, my task is limited in this case.

I'm

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reviewing the Commissioner's decision under 42, United States

7

Code, Section 405(g).

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determine whether the correct legal principles were applied

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and whether the decision is supported by substantial

The standard that I must apply is to

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evidence.

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such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.

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The term substantial evidence being defined as

By way of background, the plaintiff in this case

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was born in June of 1977.

He was 35 years old at the time of

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the administrative hearing in this case.

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my math serves me correctly.

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education.

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graduate.

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with his fiance, her mother and father and two young

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children.

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CNA, or Certified Nursing Assistant, certificate and has

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worked as a nurse's aide.

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mental health treatment over the years with various diagnoses

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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

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1

traumatic stress disorder, or PTSD.

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drug and alcohol abuse.

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He also has a history of

The plaintiff does use an inhaler and has a history

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of asthma, but that seems to be fairly controlled and really

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doesn't come into play in this case.

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He treats currently with Dr. Vidya Patil and has

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since late 2011.

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plaintiff has been prescribed Depakote, Remeron, Paxil,

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Seroquel and Ativan.

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Dr. Patil is a psychiatrist.

Over time

He last worked in or about 2011 and did collect

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unemployment benefits after losing that position.

12

Procedurally the plaintiff applied for disability insurance

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and SSI benefits on June 23, 2011, alleging an onset date of

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November 30, 2010.

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Law Judge Robert Gale on January 29, 2013.

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a decision on February 1, 2013.

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final determination of the agency when the Social Security

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Administration Appeals Council denied review on April 15,

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2014.

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A hearing was conducted by Administrative
Judge Gale issued

The determination became a

In terms of the ALJ's decision, he went through the

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now familiar five step test for determining disability.

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After finding that plaintiff was insured to June 30, 2016 and

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had not engaged in substantial gainful activity since

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November 30, 2010, he concluded at step two that he suffers

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from asthma, depressive disorder, anxiety disorder and

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1

borderline intellectual functioning.

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He found at step three, however, that none of these

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severe conditions either individually or collectively meet or

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equal any of the listed presumptively disabling conditions,

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and in that regard he considered listings 3.02, 3.03, 12.02,

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12.04, 12.05 and 12.06.

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The Administrative Law Judge then went on to

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conclude that the plaintiff has a residual functional

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capacity, or RFC, to perform a full range of work at all

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exertional levels but with the need to avoid concentrated

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exposure to respiratory irritants such as fumes, odors, dust

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and gases.

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understand and follow simple instructions and directions,

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perform simple tasks with supervision and independently,

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maintain attention and concentration for simple tasks,

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regularly attend to a routine and maintain a schedule, relate

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to and interact appropriately with others to the extent

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necessary to carry out simple tasks, and to handle reasonable

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levels of simple, repetitive work-related stress in that he

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can make occasional decisions directly related to the

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performance of simple tasks in a position with consistent job

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duties that does not require the claimant to supervise or

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manage the work of others.

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Additionally, he retains the ability to

At step four, Judge Gale concluded that the
plaintiff is capable of performing past relevant work, but

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1

went on at step five to apply the grids and conclude that

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despite his non-exertional limitations, the job base on which

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the grids are predicated was not sufficiently eroded to

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require the services of a vocational expert and concluded

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that under the grids there would also be a directed finding

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of no disability.

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The crux of the case in my estimation is the

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treatment of Dr. Patil's medical source statement as well as

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Dr. Caldwell's consultative examination and the results of

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that examination.
Dr. Patil is a psychiatrist and therefore highly

12

specialized.

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extended period of time.

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of therapists that plaintiff has seen are in the record.

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I've reviewed them carefully.

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plaintiff has extreme limitations in the ability to relate to

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acquaintances and familiar people, deal with the public, deal

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with stress, maintain attention and concentration, understand

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and remember and carry out complex instructions, and relate

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predictably in social situations, and he is markedly limited

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in behaving in an emotionally stable manner.

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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

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inconsistent with the RFC finding of Judge Gale and with the

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ability to perform meaningful work available in the economy.

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I am unconvinced that the ALJ properly considered

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1

the relevant factors and properly dismissed Dr. Patil's

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report.

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equivocal in showing some improvement with medication, still

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show flat affect and anxious mood, for example, at 514.

5

Anxious and nervous at 494.

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No change on January 9, 2012 at 468.

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2011, improving, still hard to get along with others and mood

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swings.

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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

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inabilities that are inconsistent also with the RFC.

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is also indication from others, although not in any detail,

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that the plaintiff is not capable of working.

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reference from Bassett Hospital at page 394 that the

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plaintiff is not capable of working.

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one by Dr. Ali Shehzad on March 17, 2011.

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progress note indicates that the plaintiff is not capable of

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working.

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Meigs, who has worked with the plaintiff for two years,

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opined in January of 2013 that plaintiff has the most severe

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attention problems and anxiety that she has ever seen.

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That's at page 515.

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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

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not inconsistent with his treatment notes, not inconsistent

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with other evidence in the record other than a non-examining

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1

individual who reviewed the records in November of 2011,

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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

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translate into either a lack of credibility on his part or

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does it undermine Dr. Patil's source statement.

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I agree that

I also think that it's a leap to say that because

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the plaintiff can get along with his fiance and his fiance's

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parents who he lives with, that he therefore can get along

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with others in a workplace setting.

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that the ALJ made that was unwarranted, frankly.

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agree with the plaintiff that there could be and should be

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more focus on cognitive defects of the plaintiff.

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find, however, that there is such persuasive evidence of

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disability as to warrant setting aside the determination and

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remanding for calculation of benefits only.

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this could use a fresh set of eyes, frankly.

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I think that was a leap
I also

I do not

I think that

And I therefore will grant judgment on the

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pleadings to the plaintiff, vacate the Commissioner's

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determination and remand without a directed finding of

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disability for further consideration.

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excellent presentations.

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MR. ANTONWICZ:

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THE COURT:

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MR. ANTONWICZ:

Thank you both for

Your Honor?

Yes.
I hate to interrupt.

But when you

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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

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same ALJ.

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THE COURT:

I recognize that.

I didn't find enough

6

indication in the record to suggest that it should go to

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someone other than Judge Gale, and so fresh set of eyes

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probably was not the appropriate statement.

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that it should be reviewed and he should take another look at

But I do think

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Dr. Patil's medical source statement, Dr. Caldwell's

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consultative exam, and may find it appropriate as you have

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argued to ask for more specifics concerning the limitations

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specified in Dr. Caldwell's report.

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that it may require some intellectual testing to determine

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whether plaintiff can meet or medically equal any of the

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listings related to mental retardation.

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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

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it.

Thank you both.

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MR. ANTONWICZ:

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MS. REISE:

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*

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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