Jones v. Colvin

Filing 25

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, with a directed finding of disability, for the purpose of calculating benefits owing to the pltf; and that the Clerk is 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 5/2/2016. (see)

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

BRIGID K. JONES,
Plaintiff,
v.

Civil Action No.
6:15-CV-0174 (DEP)

CAROLYN W. COLVIN, Acting 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
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

ANDREEA LECHLEITNER, 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
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 April 28, 2016 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.

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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 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, with a

directed finding of disability, for the purpose of calculating benefits owing to
the plaintiff.
4)

The clerk is 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: May 2, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
BRIGID K. JONES,
Plaintiff,
vs.

6:15-CV-174

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on April 28, 2016, 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:

PETER W. ANTONOWICZ, ESQ.
Attorney at Law
148 West Dominick Street
Rome, New York 13440

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza Room 3904
New York, New York 10278
BY: ANDREEA L. LECHLEITNER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(The following is an excerpt from the

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telephone conference held on 4/28/16.)

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THE COURT:

All right, thank you.

I'll have to let

that be the last word.
I have before me a request for judicial review of

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the Commissioner's determination pursuant to 42 United States

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Code Section 405(g).

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The background of the case is as follows:
Plaintiff's date of birth is June 1981, by my math, she is

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now 34 years old, was 31 years old at the time of the hearing

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in this matter.

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and 11-month-old son, or did at the time of the hearing.

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previously worked as a licensed practical nurse or LPN, last

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worked more than a year before the hearing in this matter

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which was held on March 11, 2013.

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home setting.

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disorder, and post-traumatic stress disorder stemming from

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abuse from multiple sources, including a stepfather and a

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former boyfriend.

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She lives in an apartment with a boyfriend
She

She worked in a nursing

She suffers from anxiety disorder, personality

She has received treatment at the Mohawk

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Psychiatric Center.

There's -- the record is somewhat

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inconsistent or ambiguous as to how many times per week she

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attends, she does attend group sessions.

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stated that she attends the center three times per week.

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other times the notes say weekly, but in late 2012, it

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

At one point she
At

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appears from the record that they became more frequent.

At

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that center, she treated with Licensed Social Worker Chris

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Casey as well as Dr. Jyoti Swaminathan.

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treating with Dr. Rabinowitz for many years, her general

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practitioner.

She has also been

Procedurally, the plaintiff applied for both

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Disability Insurance Benefits and SSI payments on

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November 29, 2011, alleging an onset date of November 7,

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2011.

A hearing was conducted on March 11, 2013, by

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Administrative Law Judge David Bagley, B-a-g-l-e-y.

Judge

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Bagley issued a decision on May 31, 2013.

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became a final determination of the agency on January 14,

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2015 when Social Security Administration Appeals Council

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denied plaintiff's application for review.

That decision

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In his decision, ALJ Bagley applied the

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well-familiar five-step protocol for determining disability.

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At step one, found that she had not engaged in
substantial gainful activity since her alleged onset date.
At step two, found that she suffers from severe

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impairments including anxiety disorder, personality disorder,

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and polysubstance abuse (in reported remission).

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At step three, the administrative law judge

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concluded that the severe impairments did not meet or

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medically equal any of the listed presumptively disabling

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conditions and specifically concluded, looking at the part B

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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criteria, that plaintiff had a mild restriction in activities

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of daily living, a moderate restriction in difficult -- in

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social functioning, moderate difficulties with regard to

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concentration, persistence, or pace and no recorded episodes

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of decompensation, concluded also that the step, the

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paragraph C criteria were not satisfied.

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After surveying the medical evidence, the ALJ

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concluded that plaintiff retains the residual functional

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capacity to perform a full range of work at all exertional

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levels subject to limitations to simple, routine, repetitive

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tasks, work in a low stress job which is defined as having no

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fixed production quotas, no hazardous conditions, only

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occasional decision-making required, and only occasional

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changes in work setting, occasional interaction with

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coworkers and supervisors and only superficial indirect

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interaction with the general public.

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ALJ concluded at step four that plaintiff cannot perform her

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past relevant work.

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Applying that RFC, the

At step five, in reliance upon the testimony of the

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vocational expert, the ALJ concluded that plaintiff is

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capable of performing as a hospital cleaner, a laundry

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worker, and a cleaner, three positions that are in the medium

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exertional category with an SVP of two.

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As you know, my role is limited.
extremely deferential.

My review is

I must determine whether proper legal

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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principles were applied, and the determination is supported

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by substantial evidence.

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In terms of credibility, I don't find any issues

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with the credibility determination, I think there was a

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proper evaluation and the credibility assessment was properly

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explained, looking at such factors as conservative treatment,

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drug-seeking conduct, the GAF, and robust daily living.

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Where I have a problem with this case is in the
retention of Dr. Noia.

I guess it bothers me that the

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evidence in the record, leaving aside Dr. Noia and

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Dr. Echevarria, is very strongly suggestive of disability,

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and so I'm having a difficult time with the retention of an

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independent expert who examines on one occasion and then

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that, there's a bootstrapping and that opinion of Dr. Noia

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then becomes substantial evidence of no disability.

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C.F.R. Section 404.1519i(b) provides that a medical source

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for consultative examination, we will use a medical source

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other than your treating source for a purchased examination

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or test in situations including, but not limited to, the

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following situations, part (b) is where there are conflicts

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or inconsistencies in your file that cannot be resolved by

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going back to your treating source.

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I reviewed, even the record before Dr. Noia's

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retention did not find such inconsistencies or conflict, and

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leaving aside Dr. Noia and then Dr. Echevarria which relies

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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in part upon Dr. Noia's consultative exam, the findings of

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Dr. Rabinowitz who was not a specialist but who has a 15-year

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relationship with the plaintiff, and the findings of

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Dr. Swaminathan who is a specialist although he has limited

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contact, he also has available to him the notes and opinions

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of Mr. Casey, and Mr. Casey who is not an acceptable medical

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source but still, his opinions concerning the plaintiff's

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limitations are entitled to some weight, they're all

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extremely consistent that the plaintiff is unable to deal

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with stress and that it would preclude her from working in a

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work environment.
Mr. Casey, at 465 and again at 527, says in letter

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form that it's his opinion she has a serious psychiatric

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disability and it would seriously impair her ability to work

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even in a low stress-related job.

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2013, page 522 characterizes her ability to deal with -- her

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inability to deal with stress as extreme, as well as her

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ability to behave in an emotionally stable manner.

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course is entitled to controlling weight unless it is

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inconsistent with his treatment notes which I don't find that

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it is.

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Dr. Rabinowitz on March 8,

That of

We also have Dr. Swaminathan's March 11, 2013

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opinions at 529 and 530 which are extremely similar, and

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Dr. Rabinowitz's letter of March 9, 2013, that's at 525.

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So in my view, it was improper to retain Dr. Noia

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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without first going back to treating sources for followup or

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consultative exams.

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When I discount his opinions, there is, in my view,

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persuasive evidence of disability in this case, and so I am

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going to award judgment on the pleadings to plaintiff, with a

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directed finding of disability and order that this matter be

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remanded to the Commissioner solely for the purpose of

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calculating benefits owed to the plaintiff.

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I appreciate excellent arguments, it was a

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difficult case, and I enjoyed working with both of you.

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a good afternoon.

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MR. ANTONOWICZ:

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MS. LECHLEITNER:

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Thank you, your Honor.
Thank you.

(Proceedings Adjourned, 3:33 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

Have

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 29th day of April, 2016.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]