Denslow v. Colvin

Filing 25

ORDER that pltf's motion for judgment on the pleadings is GRANTED; the Acting Commissioner's determination that pltf was not disabled at the relevant times, and thus is not entitled to benefits under Social Security Act, is VACATED; the mat ter 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 7/27/2017. (see)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK RONALD FREDERICK DENSLOW, JR., Plaintiff, v. Civil Action No. 6:16-CV-0974 (DEP) NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: PETER M. HOBAICA, LLC 2045 Genesee Street Utica, NY 13501 B. BROOKS BENSON, ESQ. FOR DEFENDANT: HON. GRANT JAQUITH Acting U.S. Attorney for the Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 DANIELLA M. CALENZO, ESQ. Special Assistant U.S. Attorney 1 Carolyn Colvin, the former Acting Commissioner of Security, who was the originally-named defendant, was recently replaced by Nancy A. Berryhill, who currently serves in that position. Because Carolyn Colvin was sued only in her official capacity, Nancy A. Berryhill has been automatically substituted for Carolyn Colvin as the named defendant. See Fed. R. Civ. 25(d). 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), are cross-motions for judgment on the pleadings. 2 Oral argument was conducted in connection with those motions on July 25, 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 2 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 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 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: July 27, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x RONALD FREDERICK DENSLOW, JR., Plaintiff, vs. 6:16-CV-974 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. --------------------------------------------x Transcript of a Decision held during a Digitally-Recorded Telephone Conference on July 25, 2017, 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: OFFICE OF PETER M. HOBAICA, LLC Attorneys at Law 2045 Genesee Street Utica, New York 13501 BY: B. BROOKS BENSON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: DANIELLA M. CALENZO, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter (315) 234-8547 2 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 All right. This is an interesting 3 case. I've reviewed very carefully the parties' submissions, 4 the record, in particular the many reports of Dr. Davis as 5 well as the other individuals that have examined plaintiff. 6 So I have before me a request for judicial review 7 of an adverse determination pursuant to 42 United States Code 8 Section 405(g). 9 The background is as follows: The plaintiff was 10 born in February 1964, he is currently 53 years old. 11 outset -- onset of his alleged disability he was 47 and he 12 was 50 years old at the time of the administrative hearing in 13 this matter. 14 262 pounds. 15 divorced and has two adult children. 16 graduate and he drives. 17 worked as a security guard. 18 when but it looks like between 2002 and either 2012 or 2013. 19 At the end he was working as a part-time security guard. 20 has also worked as a mechanic and assembler and a wrecker 21 dismantling snowmobiles. 22 as a farmworker on his grandparents' farm prior to 2002. 23 also was a logging equipment mechanic from 2006-2007. 24 25 At the He is 5 foot 9 inches in height and weighs He is right-hand dominant. Plaintiff is He is a high school In the past, the plaintiff has There is some ambiguity as to That was in 2006-2007. He He's worked He He has suffered from mental and cognitive concerns since age 9 when he was struck on the head with a beer JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 3 1 bottle, he lost consciousness and saw stars. 2 diagnosed as having a concussion. 3 subsequently several times hitting his head. 4 barn concrete floor and hit his head at age 22. 5 snowmobile accident suffering head, neck -- and neck trauma 6 and at age 35 he fell 19 feet off a ladder and was briefly 7 unconscious. 8 9 He was He slipped on the ice He slipped on a He had a The plaintiff has obviously undergone significant neuropsychological testing and assessments by Dr. Toby Davis. 10 Dr. Davis has issued reports from August 23, 2011 and 11 September 20, 2011 that are fairly similar, both assigned a 12 GAF score of 50. 13 areas and that he suffers from depression, anxiety, and 14 memory loss. 15 May of 2013 and as I indicated during oral argument, in that 16 report, it shows significant slippage and that when comparing 17 his global neuropsychological performance from 9/20/2011 to 18 5/30/2013, according to Dr. Davis, Mr. Denslow has slipped 19 from average to mildly impaired and he provides specifics at 20 pages 503 and 504 of the administrative transcript. 21 assigns a GAF score of 44 which is under the DSM-IV, of 22 course GAF has been eliminated in DSM-5. 23 score of 44 represents serious symptoms or any serious 24 impairment in social, occupational, or school functioning, 25 e.g., no friends, unable to keep a job, close paren. They note significant deficits in several He was also subject of a report by Dr. Davis in JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 He Under DSM-IV, a GAF 4 1 Plaintiff was also examined by Dr. Sushma, S-u-s-h-m-a, 2 Manda, M-a-n-d-a, neurologist, and Dr. G-l-a-d-y, Jacob, a 3 memory specialist. 4 at Slocum Dixon. He has also seen regular care providers Physically the plaintiff has been diagnosed with 5 6 obesity. He also suffers from asthma, headaches, 7 hypertension, status post shoulder surgery, low back 8 arthritis, foot and leg issues, and he sees primarily a 9 physician's assistant Andrew Milone, M-i-l-o-n-e, in 10 Boonville, New York, and I also missed post-concussion 11 syndrome and sleep apnea. 12 As daily activities, he socializes with friends, 13 fishes, watches NASCAR, attends stock car races, cuts the 14 lawn, maintains his house with minor repairs, cooks, does 15 laundry, shops, some child care, and goes to church. 16 Procedurally, plaintiff applied for Disability 17 Insurance or Title II benefits on August 25, 2011, alleging 18 an onset date of August 2, 2010. 19 did not appear and his case was dismissed. 20 Security Administration Appeals Council remanded the matter 21 for a new hearing on September 10, 2013. 22 conducted on February 24, 2014 by Administrative Law Judge F. 23 Patrick Flanagan. 24 July 25, 2014, and it was adverse, he found that plaintiff 25 was not disabled at the relevant times and therefore At his first hearing, he The Social A hearing was Judge Flanagan issued his decision on JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 5 1 ineligible for the requested benefits. 2 Administration Appeals Council denied plaintiff's request for 3 review of that determination on November 27, 2015, making the 4 administrative law judge's opinion a final determination of 5 the agency. 6 The Social Security In his decision, ALJ Flanagan applied the 7 well-known five-step sequential test for determining 8 disability, finding at step one that plaintiff was not 9 engaged in substantial gainful activity since his alleged 10 onset date even though he was employed on a part-time basis 11 as a security guard. 12 the absence of any physical limitations. 13 He did find that significant in showing At step two, plaintiff's depression was diagnosed 14 or found to be severe. 15 were rejected principally upon the consultative -- on the 16 basis of the consultative report of Dr. Ganesh. 17 The other physical conditions alleged At step three, the administrative law judge found 18 that plaintiff cannot meet or medically equal any of the 19 listed presumptively disabling conditions and he considered 20 12.02 which relates to organic mental disorders, 12.06 which 21 relates to anxiety-related disorders, but he considered 22 12.04, I'm sorry, and he found that plaintiff could not meet 23 the B criteria of 12.04, finding that plaintiff was mildly 24 limited in activities of daily living, moderately limited in 25 social functioning, and moderately limited in concentration, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 6 1 persistence, and pace with no episodes of extended duration 2 of decompensation. 3 met. He found that the C criteria were not 4 After applying a credibility analysis and 5 concluding that plaintiff's subjective claims were not fully 6 credible, the ALJ determined that the plaintiff retains the 7 residual functional capacity or RFC to perform all work, work 8 at all exertional levels with the following mental 9 limitations: He remains capable of understanding, 10 remembering, and carrying out simple one-two-step tasks, can 11 accept instructions from supervisors, and relate 12 cooperatively with coworkers but only superficial contact 13 with the public, occasional decision making, no 14 confrontation, negotiation, or responsibility for safety of 15 others or fast-paced production line tasks. 16 Applying that RFC, the ALJ concluded plaintiff 17 cannot perform his past relevant work as a security guard, a 18 dairy farm worker, a wrecking mechanic, and a logging 19 equipment mechanic. 20 He then consulted with a vocational expert who 21 opined that, despite his limitations, plaintiff is capable of 22 performing as a cleaner/housekeeper, a laundry laborer, and a 23 cleaner, either industrial or commercial. 24 25 As you know, my task is limited, scope of review is highly deferential. I must determine whether the JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 7 1 Commissioner applied the correct legal principles and his 2 determination is supported by -- I'm sorry, her determination 3 is supported by substantial evidence. 4 In this case, at step two, plaintiff argues that 5 the administrative law judge should have concluded that 6 plaintiff suffers from additional severe conditions including 7 traumatic brain injury, post-concussion syndrome, cognitive 8 disorder, mood disorder, and personality change. 9 know, the test at step two is fairly de minimus but plaintiff As you 10 retains the burden. 11 condition, and it is important that it is not the condition 12 that counts but the resulting limitations from the condition. 13 The condition must significantly limit the ability to do 14 basic work activities. 15 The burden is to show that the In this case, I'm -- I, even if I were to agree 16 with the plaintiff, the error would be harmless because the 17 administrative law judge did find a severe impairment and 18 proceeded to step three. 19 Of course, the crucial question is whether at the 20 RFC level and steps four and five, the administrative law 21 judge considered the effect of all of plaintiff's 22 impairments, severe and nonsevere. 23 In terms of the physical components of the RFC, 24 Dr. Ganesh's consultative exam report adequately provides 25 substantial evidence for any exertional requirements of the JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 8 1 RFC. In terms of the listings, plaintiff has raised an 2 argument that Listings 12.02, 12.06, 12.08 should have been 3 considered, but each of those requires a satisfaction of the 4 B criteria and the ALJ concluded that the B criteria could 5 not be met when he considered 12.04. The plaintiff also could not meet the C criteria, 6 7 and those also must be shown with respect to those listings, 8 so I don't find any error. 9 that those additional mental conditions at step two were 10 Even if the ALJ were to conclude severe, I don't find any error at step three. The RFC is I think where the rubber meets the road 11 12 here and this is definitely a close case. There is a duty to 13 develop the record. 14 the record. 15 source statements from Dr. Davis and it was not done. 16 not sure that there was a gap here that the administrative 17 law judge should have filled but it certainly would have been 18 helpful to meaningful judicial review to have a consultative 19 exam report or a medical source statement that would 20 demonstrate, given his cognitive limitations, what plaintiff, 21 what limitations he had in performing work-related functions. The question is are there any gaps in The record was left open to obtain medical I'm Let me skip down to credibility, then we'll circle 22 23 back. I think the ALJ properly, in determining credibility, 24 applied the required two-step analysis. 25 plaintiff's evidence of robust daily activities, the clear He considered JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 9 1 evidence of exaggeration to health care providers to obtain 2 Disability Insurance benefits as a revenue stream. 3 610 he told Dr. Seigers on March 13th, 2013 he was there to 4 get disability. 5 The doctor stated that he could not identify any disability. 6 At page 619 he stated his intention was, to Dr. Raja, 7 R-a-j-a, to get financial help through disability benefits, 8 and the record is replete with references to that. 9 489, Dr. Davis is told the same thing, that plaintiff At page At page 614 again he asked for disability. 10 believes he is disabled. 11 487, 488, of the declining of neurocognitive rehabilitation. 12 And of course there is the question But overall, considering the record, I agree with 13 plaintiff's counsel that there is apparently a mistaken 14 belief by the administrative law judge at page 26 that 15 plaintiff's, according to Dr. Davis, plaintiff's condition 16 was static and did not deteriorate from 2011 to 2013. 17 clearly wrong, according to Dr. Davis' May 2013 report which 18 shows slippage in specific areas and the GAF of 44 as I 19 indicated previously, and so I think this is a case that 20 should be remanded. 21 evidence of disability, I think the jury is out as to whether 22 Mr. Denslow can meet the requirements of demonstrating 23 disability, but I don't think Administrative Law Judge 24 Flanagan, with due respect to him, provided a very clear 25 explanation of his rejection of Dr. Davis' conclusions, and I That's I don't find, I don't find clear JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 10 1 2 think that the matter ought to be remanded. So I will grant judgment on the pleadings to the 3 plaintiff and remand the matter to the Commissioner for 4 further consideration without a directed finding of 5 disability. 6 you have a good day. Thank you both for excellent presentations, hope 7 MS. CALENZO: 8 MR. BENSON: 9 Thank you, your Honor. Thank you very much, your Honor. (Proceedings Adjourned, 2:40 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 C E R T I F I C A T I O N 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, 5 Official Court Reporter in and for the United States 6 District Court, Northern District of New York, DO 7 HEREBY CERTIFY that I have listened to and 8 transcribed the foregoing proceedings and that the 9 foregoing is a true and correct transcript thereof 10 to the best of my ability. 11 12 13 14 15 16 17 s/Jodi L. Hibbard 18 ________________________________ 19 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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