Lawton v. Commissioner of Social Security

Filing 16

ORDER: that plaintiff's motion for judgment on the pleadings is Granted; that 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; that the matter is hereby Remanded to the Acting 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 Acting Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 01/06/2017. (hmr)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK TINA L. LAWTON, Plaintiff, v. Civil Action No. 6:16-CV-0317 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF DRAKE LOEB PLLC 555 Hudson Valley Avenue Suite 100 Windsor, NY 12553 GARY J. GOGERTY, 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 MICHELLE L. CHRIST, ESQ. Special Assistant U.S. Attorney DAVID E. PEEBLES CHIEF 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 Acting Commissioner, pursuant to 42 U.S.C. '' 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings. 1 Oral argument was conducted in connection with those motions on January 5, 2017, 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. 2) The Acting Commissioner=s determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the 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 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: January 6, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------------------------x TINA L. LAWTON, Plaintiff, vs. 6:16-CV-317 COMMISSIONER OF SOCIAL SECURITY, Defendant. -----------------------------------------------------x Decision - January 5, 2017 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: DRAKE, LOEB LAW FIRM Attorneys at Law 555 Hudson Valley Avenue New Windsor, New York 12553 BY: GARY J. GOGERTY, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 26 Federal Plaza New York, New York 10278 BY: MICHELLE L. CHRIST, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 2 Decision - 16-cv-317 - 1/5/2017 THE COURT: 1 I have before me a request for judicial 2 review of an adverse termination by the Acting Commissioner 3 pursuant to 42, United States Code, Sections 405(g) and 4 1383(c)(3). The background is as follows. 5 Plaintiff was born 6 in January of 1964 and is currently 53, about to turn 54, 7 years old. 8 onset of her disability. 9 son who was at the time of the hearing in this matter 19 She was 44 years old at the time of the alleged Plaintiff lives in Johnstown with a 10 years old. 11 placed in regular classes. 12 diploma. 13 Plaintiff has an eighth grade education. She drives. She was At age 20 she achieved a GED She last worked in August of 2008. 14 She has worked as a cook and for four years as a housekeeper. 15 She stopped working due to COPD and asthma, as well as carpal 16 tunnel syndrome, or CTS. 17 rarely, due to vision issues and coughing spells. 18 between one half and one pack of cigarettes a day, despite 19 being advised by health care practitioners to stop. 20 She has essentially no hobbies. She drives, as I indicated, but She smokes Medically she 21 suffers from COPD and asthma, as well as pulmonary nodules, 22 which are being monitored on a regular basis. 23 bilateral CTS surgery in 2005 and has ongoing complaints of 24 pain and uses braces on her wrists. 25 She suffers from depression. She had She claims to stay 3 Decision - 16-cv-317 - 1/5/2017 1 home and frequently upstairs without even coming down to the 2 main part of the house. 3 glands on the bottom of her feet, and back pain. 4 been treated at St. Mary's Family Health Center primarily by 5 Nurse Practitioner Randie Salmon, and also Thomas Eagan, an 6 orthopedist, with respect to wrists, leg and back pain. She also suffers from swollen sweat She has Procedurally, plaintiff applied for Title II and 7 8 Title XVI benefits on May 30, 2013, alleging an onset date of 9 August 27, 2008. A hearing was conducted by Administrative 10 Law Judge Arthur Patane on March 25, 2015. ALJ Patane issued 11 a written decision on April 17, 2015, finding that the 12 plaintiff was not disabled at the relevant times. 13 determination was upheld on appeal to the Social Security 14 Administration Appeals Council on January 19, 2016, making 15 the ALJ's decision a final determination of the Agency. That In his decision ALJ Patane applied the sequential 16 17 five-step test for determining disability as set forth in the 18 Acting Commissioner's regulations. At step one finding that plaintiff had not engaged 19 20 in substantial gainful activity since her alleged onset date. At step two he concluded that plaintiff suffers 21 22 from severe impairments, including COPD, or chronic 23 obstructive pulmonary disease, as well as a history of 24 asthma. 25 rejected several other conditions, including plaintiff's In making that determination or finding, the ALJ Decision - 16-cv-317 - 1/5/2017 4 1 complaints concerning her hands and fingers and carpal tunnel 2 syndrome, her swollen foot glands, blurred vision, reports of 3 back pain, abdomen bloating, and depression. 4 At step three ALJ Patane concluded that plaintiff's 5 conditions do not either singularly or in combination meet or 6 medically equal any of the listed presumptively disabling 7 conditions set forth in the Commissioner's regulations, 8 specifically including 1.04; 3.02A, or COPD; 3.03A, asthma 9 and bronchitis; 11.14, peripheral neuropathy; and also the 10 mental health regulations listings in the 12.00 series, 11 concluding in that regard that plaintiff's condition did not 12 meet the B or C criteria. 13 The ALJ then concluded after surveying the evidence 14 that plaintiff retains the residual functional capacity, or 15 RFC, to perform a full range of light work, but can have no 16 concentrated exposure to respiratory irritants such as fumes, 17 odors, dusts, gases and poorly ventilated spaces. 18 Applying that RFC determination, the ALJ concluded 19 that plaintiff is unable to perform her past relevant work in 20 either of the two positions; one, because of the presence of 21 respiratory irritants, and with regard to the cook condition, 22 because it is performed at a medium exertional rate. 23 At step five the ALJ applied the medical vocational 24 guidelines, or the Grids, specifically Rule 202.20, and 25 concluded that plaintiff was not disabled at the time 5 Decision - 16-cv-317 - 1/5/2017 1 2 relevant times. As you know, my task is limited to determining 3 whether correct legal principles were applied and the 4 determination is supported by substantial evidence. 5 deferential standard of review that I must apply. 6 It is a Looking carefully at the record, I agree with 7 plaintiff that the RFC determination that plaintiff must only 8 avoid concentrated irritants doesn't appear to be supported 9 by anything in the record that would specifically say that 10 Dr. Puri's opinion is very different, and says it is 11 recommended that she not be in an environment which would 12 increase her respiratory complaints. 13 And so given that and given the Nurse Practitioner Salmon 14 medical source statement that came admittedly after the ALJ's 15 determination concluding that plaintiff should not be exposed 16 ever to dust, odors, fumes and pulmonary irritants, that's at 17 page 464, I think that's a significant error. 18 That is at page 340. Looking at step five I also think that there is a 19 problem here. The burden at step five, of course, is on the 20 Commissioner, and one of the things that must be determined 21 is whether there are non-exertional limitations that would 22 diminish the claimant's ability to perform the level of work 23 in question, and whether, if there are such impairments, 24 whether a vocational expert's testimony is required in order 25 for the Commissioner to carry her burden. That is 6 Decision - 16-cv-317 - 1/5/2017 1 well-established under Bapp v. Bowen. Wilson versus 2 Barnhart, which I think was also cited, is another example of 3 that. Non-exertional impairment significantly limits a 4 5 claimant's range of work when it causes an additional loss of 6 work capacity beyond a negligible one, or when it is one that 7 so narrows a claimant's possible range of work as to deprive 8 him of a meaningful employment opportunity. 9 85-15 controls and it speaks to the presence of 10 In this case SSR non-exertional limitations. 11 Addressing environmental restrictions, the ruling 12 notes that when a person has a medical restriction to avoid 13 excessive amounts of noise, dust, et cetera, the impact on 14 the broad world of work would be minimal because most job 15 environments do not involve great noise, amounts of dust, et 16 cetera. 17 dust, et cetera, the impact on the ability to work would be 18 considerable because very few job environments are entirely 19 free of irritants, pollutants and other potentially damaging 20 conditions. 21 When an individual can tolerate very little noise, Significantly, the ruling goes on to say where the 22 environmental restriction falls between very little and 23 excessive, resolution of the issue will generally require 24 consultation of occupational reference materials or the 25 services of a VE, Vocational Expert. 7 Decision - 16-cv-317 - 1/5/2017 In this case what struck me was when I read the 1 2 Administrative Law Judge's decision at page 30, I said there 3 must be a paragraph missing, the typist must have missed it, 4 because there is no discussion of why this environmental 5 limitation does not require a Vocational Expert. 6 have looked for between the second-to-last paragraph and the 7 last paragraph on that page a discussion by the 8 Administrative Law Judge as to why he believed resort to the 9 Grids was proper and a Vocational Expert testimony was not 10 required, particularly since of the uncertainty of what is 11 meant by concentrated. 12 coextensive with excessive? 13 and very little? 14 additional finding that it does not coincide with Dr. Puri's 15 opinion. Is that excessive? I would Is that Does it fall between excessive And, of course, exacerbated by the So I think this matter should be returned for a 16 17 closer look at the environmental limitations experienced by 18 the plaintiff. 19 disability. 20 plaintiff, vacate the Commissioner's determination, and 21 remand the matter for further proceedings consistent with my 22 opinion. 23 accordingly. 24 25 I don't find persuasive evidence of So I will grant judgment on the pleadings to the And I'll issue a decision and enter judgment Again, thank you both. * * Happy New Year. * 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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