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)

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
[phone]

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Decision - 16-cv-317 - 1/5/2017
THE COURT:

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I have before me a request for judicial

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review of an adverse termination by the Acting Commissioner

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pursuant to 42, United States Code, Sections 405(g) and

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1383(c)(3).
The background is as follows.

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Plaintiff was born

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in January of 1964 and is currently 53, about to turn 54,

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years old.

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onset of her disability.

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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

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years old.

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placed in regular classes.

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diploma.

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Plaintiff has an eighth grade education.

She drives.

She was

At age 20 she achieved a GED

She last worked in August of 2008.

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She has worked as a cook and for four years as a housekeeper.

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She stopped working due to COPD and asthma, as well as carpal

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tunnel syndrome, or CTS.

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rarely, due to vision issues and coughing spells.

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between one half and one pack of cigarettes a day, despite

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being advised by health care practitioners to stop.

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She has essentially no hobbies.

She drives, as I indicated, but
She smokes

Medically she

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suffers from COPD and asthma, as well as pulmonary nodules,

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which are being monitored on a regular basis.

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bilateral CTS surgery in 2005 and has ongoing complaints of

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pain and uses braces on her wrists.

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She suffers from depression.

She had

She claims to stay

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Decision - 16-cv-317 - 1/5/2017
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home and frequently upstairs without even coming down to the

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main part of the house.

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glands on the bottom of her feet, and back pain.

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been treated at St. Mary's Family Health Center primarily by

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Nurse Practitioner Randie Salmon, and also Thomas Eagan, an

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orthopedist, with respect to wrists, leg and back pain.

She also suffers from swollen sweat
She has

Procedurally, plaintiff applied for Title II and

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8

Title XVI benefits on May 30, 2013, alleging an onset date of

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August 27, 2008.

A hearing was conducted by Administrative

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Law Judge Arthur Patane on March 25, 2015.

ALJ Patane issued

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a written decision on April 17, 2015, finding that the

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plaintiff was not disabled at the relevant times.

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determination was upheld on appeal to the Social Security

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Administration Appeals Council on January 19, 2016, making

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the ALJ's decision a final determination of the Agency.

That

In his decision ALJ Patane applied the sequential

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five-step test for determining disability as set forth in the

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Acting Commissioner's regulations.
At step one finding that plaintiff had not engaged

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20

in substantial gainful activity since her alleged onset date.
At step two he concluded that plaintiff suffers

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22

from severe impairments, including COPD, or chronic

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obstructive pulmonary disease, as well as a history of

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asthma.

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rejected several other conditions, including plaintiff's

In making that determination or finding, the ALJ

Decision - 16-cv-317 - 1/5/2017

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1

complaints concerning her hands and fingers and carpal tunnel

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syndrome, her swollen foot glands, blurred vision, reports of

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back pain, abdomen bloating, and depression.

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At step three ALJ Patane concluded that plaintiff's

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conditions do not either singularly or in combination meet or

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medically equal any of the listed presumptively disabling

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conditions set forth in the Commissioner's regulations,

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specifically including 1.04; 3.02A, or COPD; 3.03A, asthma

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and bronchitis; 11.14, peripheral neuropathy; and also the

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mental health regulations listings in the 12.00 series,

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concluding in that regard that plaintiff's condition did not

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meet the B or C criteria.

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The ALJ then concluded after surveying the evidence

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that plaintiff retains the residual functional capacity, or

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RFC, to perform a full range of light work, but can have no

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concentrated exposure to respiratory irritants such as fumes,

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odors, dusts, gases and poorly ventilated spaces.

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Applying that RFC determination, the ALJ concluded

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that plaintiff is unable to perform her past relevant work in

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either of the two positions; one, because of the presence of

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respiratory irritants, and with regard to the cook condition,

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because it is performed at a medium exertional rate.

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At step five the ALJ applied the medical vocational

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guidelines, or the Grids, specifically Rule 202.20, and

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concluded that plaintiff was not disabled at the time

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Decision - 16-cv-317 - 1/5/2017
1
2

relevant times.
As you know, my task is limited to determining

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whether correct legal principles were applied and the

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determination is supported by substantial evidence.

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deferential standard of review that I must apply.

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It is a

Looking carefully at the record, I agree with

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plaintiff that the RFC determination that plaintiff must only

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avoid concentrated irritants doesn't appear to be supported

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by anything in the record that would specifically say that

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Dr. Puri's opinion is very different, and says it is

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recommended that she not be in an environment which would

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increase her respiratory complaints.

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And so given that and given the Nurse Practitioner Salmon

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medical source statement that came admittedly after the ALJ's

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determination concluding that plaintiff should not be exposed

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ever to dust, odors, fumes and pulmonary irritants, that's at

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page 464, I think that's a significant error.

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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

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Commissioner, and one of the things that must be determined

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is whether there are non-exertional limitations that would

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diminish the claimant's ability to perform the level of work

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in question, and whether, if there are such impairments,

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whether a vocational expert's testimony is required in order

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for the Commissioner to carry her burden.

That is

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Decision - 16-cv-317 - 1/5/2017
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well-established under Bapp v. Bowen.

Wilson versus

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Barnhart, which I think was also cited, is another example of

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that.
Non-exertional impairment significantly limits a

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claimant's range of work when it causes an additional loss of

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work capacity beyond a negligible one, or when it is one that

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so narrows a claimant's possible range of work as to deprive

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him of a meaningful employment opportunity.

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85-15 controls and it speaks to the presence of

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In this case SSR

non-exertional limitations.

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Addressing environmental restrictions, the ruling

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notes that when a person has a medical restriction to avoid

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excessive amounts of noise, dust, et cetera, the impact on

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the broad world of work would be minimal because most job

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environments do not involve great noise, amounts of dust, et

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cetera.

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dust, et cetera, the impact on the ability to work would be

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considerable because very few job environments are entirely

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free of irritants, pollutants and other potentially damaging

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conditions.

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When an individual can tolerate very little noise,

Significantly, the ruling goes on to say where the

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environmental restriction falls between very little and

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excessive, resolution of the issue will generally require

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consultation of occupational reference materials or the

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services of a VE, Vocational Expert.

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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

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limitation does not require a Vocational Expert.

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have looked for between the second-to-last paragraph and the

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last paragraph on that page a discussion by the

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Administrative Law Judge as to why he believed resort to the

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Grids was proper and a Vocational Expert testimony was not

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required, particularly since of the uncertainty of what is

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meant by concentrated.

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coextensive with excessive?

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and very little?

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additional finding that it does not coincide with Dr. Puri's

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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

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the plaintiff.

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disability.

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plaintiff, vacate the Commissioner's determination, and

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remand the matter for further proceedings consistent with my

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opinion.

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accordingly.

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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