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)

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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. 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 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 3 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 (315) 234-8547 17 (The following is an excerpt from the 1 telephone conference held on 4/28/16.) 2 3 4 5 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 6 the Commissioner's determination pursuant to 42 United States 7 Code Section 405(g). 8 9 The background of the case is as follows: Plaintiff's date of birth is June 1981, by my math, she is 10 now 34 years old, was 31 years old at the time of the hearing 11 in this matter. 12 and 11-month-old son, or did at the time of the hearing. 13 previously worked as a licensed practical nurse or LPN, last 14 worked more than a year before the hearing in this matter 15 which was held on March 11, 2013. 16 home setting. 17 disorder, and post-traumatic stress disorder stemming from 18 abuse from multiple sources, including a stepfather and a 19 former boyfriend. 20 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 21 Psychiatric Center. There's -- the record is somewhat 22 inconsistent or ambiguous as to how many times per week she 23 attends, she does attend group sessions. 24 stated that she attends the center three times per week. 25 other times the notes say weekly, but in late 2012, it JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 At one point she At 18 1 appears from the record that they became more frequent. At 2 that center, she treated with Licensed Social Worker Chris 3 Casey as well as Dr. Jyoti Swaminathan. 4 treating with Dr. Rabinowitz for many years, her general 5 practitioner. She has also been Procedurally, the plaintiff applied for both 6 7 Disability Insurance Benefits and SSI payments on 8 November 29, 2011, alleging an onset date of November 7, 9 2011. A hearing was conducted on March 11, 2013, by 10 Administrative Law Judge David Bagley, B-a-g-l-e-y. Judge 11 Bagley issued a decision on May 31, 2013. 12 became a final determination of the agency on January 14, 13 2015 when Social Security Administration Appeals Council 14 denied plaintiff's application for review. That decision 15 In his decision, ALJ Bagley applied the 16 well-familiar five-step protocol for determining disability. 17 18 19 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 20 impairments including anxiety disorder, personality disorder, 21 and polysubstance abuse (in reported remission). 22 At step three, the administrative law judge 23 concluded that the severe impairments did not meet or 24 medically equal any of the listed presumptively disabling 25 conditions and specifically concluded, looking at the part B JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 19 1 criteria, that plaintiff had a mild restriction in activities 2 of daily living, a moderate restriction in difficult -- in 3 social functioning, moderate difficulties with regard to 4 concentration, persistence, or pace and no recorded episodes 5 of decompensation, concluded also that the step, the 6 paragraph C criteria were not satisfied. 7 After surveying the medical evidence, the ALJ 8 concluded that plaintiff retains the residual functional 9 capacity to perform a full range of work at all exertional 10 levels subject to limitations to simple, routine, repetitive 11 tasks, work in a low stress job which is defined as having no 12 fixed production quotas, no hazardous conditions, only 13 occasional decision-making required, and only occasional 14 changes in work setting, occasional interaction with 15 coworkers and supervisors and only superficial indirect 16 interaction with the general public. 17 ALJ concluded at step four that plaintiff cannot perform her 18 past relevant work. 19 Applying that RFC, the At step five, in reliance upon the testimony of the 20 vocational expert, the ALJ concluded that plaintiff is 21 capable of performing as a hospital cleaner, a laundry 22 worker, and a cleaner, three positions that are in the medium 23 exertional category with an SVP of two. 24 25 As you know, my role is limited. extremely deferential. My review is I must determine whether proper legal JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 20 1 principles were applied, and the determination is supported 2 by substantial evidence. 3 In terms of credibility, I don't find any issues 4 with the credibility determination, I think there was a 5 proper evaluation and the credibility assessment was properly 6 explained, looking at such factors as conservative treatment, 7 drug-seeking conduct, the GAF, and robust daily living. 8 9 Where I have a problem with this case is in the retention of Dr. Noia. I guess it bothers me that the 10 evidence in the record, leaving aside Dr. Noia and 11 Dr. Echevarria, is very strongly suggestive of disability, 12 and so I'm having a difficult time with the retention of an 13 independent expert who examines on one occasion and then 14 that, there's a bootstrapping and that opinion of Dr. Noia 15 then becomes substantial evidence of no disability. 16 C.F.R. Section 404.1519i(b) provides that a medical source 17 for consultative examination, we will use a medical source 18 other than your treating source for a purchased examination 19 or test in situations including, but not limited to, the 20 following situations, part (b) is where there are conflicts 21 or inconsistencies in your file that cannot be resolved by 22 going back to your treating source. 23 20 I reviewed, even the record before Dr. Noia's 24 retention did not find such inconsistencies or conflict, and 25 leaving aside Dr. Noia and then Dr. Echevarria which relies JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 21 1 in part upon Dr. Noia's consultative exam, the findings of 2 Dr. Rabinowitz who was not a specialist but who has a 15-year 3 relationship with the plaintiff, and the findings of 4 Dr. Swaminathan who is a specialist although he has limited 5 contact, he also has available to him the notes and opinions 6 of Mr. Casey, and Mr. Casey who is not an acceptable medical 7 source but still, his opinions concerning the plaintiff's 8 limitations are entitled to some weight, they're all 9 extremely consistent that the plaintiff is unable to deal 10 with stress and that it would preclude her from working in a 11 work environment. Mr. Casey, at 465 and again at 527, says in letter 12 13 form that it's his opinion she has a serious psychiatric 14 disability and it would seriously impair her ability to work 15 even in a low stress-related job. 16 2013, page 522 characterizes her ability to deal with -- her 17 inability to deal with stress as extreme, as well as her 18 ability to behave in an emotionally stable manner. 19 course is entitled to controlling weight unless it is 20 inconsistent with his treatment notes which I don't find that 21 it is. 22 Dr. Rabinowitz on March 8, That of We also have Dr. Swaminathan's March 11, 2013 23 opinions at 529 and 530 which are extremely similar, and 24 Dr. Rabinowitz's letter of March 9, 2013, that's at 525. 25 So in my view, it was improper to retain Dr. Noia JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 22 1 without first going back to treating sources for followup or 2 consultative exams. 3 When I discount his opinions, there is, in my view, 4 persuasive evidence of disability in this case, and so I am 5 going to award judgment on the pleadings to plaintiff, with a 6 directed finding of disability and order that this matter be 7 remanded to the Commissioner solely for the purpose of 8 calculating benefits owed to the plaintiff. 9 I appreciate excellent arguments, it was a 10 difficult case, and I enjoyed working with both of you. 11 a good afternoon. 12 MR. ANTONOWICZ: 13 MS. LECHLEITNER: 14 Thank you, your Honor. Thank you. (Proceedings Adjourned, 3:33 p.m.) 15 16 17 18 19 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 Have 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 29th day of April, 2016. 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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