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)

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

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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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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

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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
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

This is an interesting

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case.

I've reviewed very carefully the parties' submissions,

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the record, in particular the many reports of Dr. Davis as

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well as the other individuals that have examined plaintiff.

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So I have before me a request for judicial review

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of an adverse determination pursuant to 42 United States Code

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Section 405(g).

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The background is as follows:

The plaintiff was

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born in February 1964, he is currently 53 years old.

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outset -- onset of his alleged disability he was 47 and he

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was 50 years old at the time of the administrative hearing in

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this matter.

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262 pounds.

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divorced and has two adult children.

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graduate and he drives.

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worked as a security guard.

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when but it looks like between 2002 and either 2012 or 2013.

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At the end he was working as a part-time security guard.

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has also worked as a mechanic and assembler and a wrecker

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dismantling snowmobiles.

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as a farmworker on his grandparents' farm prior to 2002.

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also was a logging equipment mechanic from 2006-2007.

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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
[phone]

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bottle, he lost consciousness and saw stars.

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diagnosed as having a concussion.

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subsequently several times hitting his head.

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barn concrete floor and hit his head at age 22.

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snowmobile accident suffering head, neck -- and neck trauma

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and at age 35 he fell 19 feet off a ladder and was briefly

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unconscious.

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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.

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Dr. Davis has issued reports from August 23, 2011 and

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September 20, 2011 that are fairly similar, both assigned a

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GAF score of 50.

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areas and that he suffers from depression, anxiety, and

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memory loss.

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May of 2013 and as I indicated during oral argument, in that

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report, it shows significant slippage and that when comparing

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his global neuropsychological performance from 9/20/2011 to

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5/30/2013, according to Dr. Davis, Mr. Denslow has slipped

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from average to mildly impaired and he provides specifics at

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pages 503 and 504 of the administrative transcript.

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assigns a GAF score of 44 which is under the DSM-IV, of

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course GAF has been eliminated in DSM-5.

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score of 44 represents serious symptoms or any serious

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impairment in social, occupational, or school functioning,

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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
[phone]

He

Under DSM-IV, a GAF

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Plaintiff was also examined by Dr. Sushma, S-u-s-h-m-a,

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Manda, M-a-n-d-a, neurologist, and Dr. G-l-a-d-y, Jacob, a

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memory specialist.

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at Slocum Dixon.

He has also seen regular care providers

Physically the plaintiff has been diagnosed with

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obesity.

He also suffers from asthma, headaches,

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hypertension, status post shoulder surgery, low back

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arthritis, foot and leg issues, and he sees primarily a

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physician's assistant Andrew Milone, M-i-l-o-n-e, in

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Boonville, New York, and I also missed post-concussion

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syndrome and sleep apnea.

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As daily activities, he socializes with friends,

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fishes, watches NASCAR, attends stock car races, cuts the

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lawn, maintains his house with minor repairs, cooks, does

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laundry, shops, some child care, and goes to church.

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Procedurally, plaintiff applied for Disability

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Insurance or Title II benefits on August 25, 2011, alleging

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an onset date of August 2, 2010.

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did not appear and his case was dismissed.

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Security Administration Appeals Council remanded the matter

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for a new hearing on September 10, 2013.

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conducted on February 24, 2014 by Administrative Law Judge F.

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Patrick Flanagan.

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July 25, 2014, and it was adverse, he found that plaintiff

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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
[phone]

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ineligible for the requested benefits.

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Administration Appeals Council denied plaintiff's request for

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review of that determination on November 27, 2015, making the

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administrative law judge's opinion a final determination of

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the agency.

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The Social Security

In his decision, ALJ Flanagan applied the

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well-known five-step sequential test for determining

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disability, finding at step one that plaintiff was not

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engaged in substantial gainful activity since his alleged

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onset date even though he was employed on a part-time basis

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as a security guard.

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the absence of any physical limitations.

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He did find that significant in showing

At step two, plaintiff's depression was diagnosed

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or found to be severe.

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were rejected principally upon the consultative -- on the

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basis of the consultative report of Dr. Ganesh.

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The other physical conditions alleged

At step three, the administrative law judge found

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that plaintiff cannot meet or medically equal any of the

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listed presumptively disabling conditions and he considered

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12.02 which relates to organic mental disorders, 12.06 which

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relates to anxiety-related disorders, but he considered

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12.04, I'm sorry, and he found that plaintiff could not meet

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the B criteria of 12.04, finding that plaintiff was mildly

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limited in activities of daily living, moderately limited in

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social functioning, and moderately limited in concentration,

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

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persistence, and pace with no episodes of extended duration

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of decompensation.

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met.

He found that the C criteria were not

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After applying a credibility analysis and

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concluding that plaintiff's subjective claims were not fully

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credible, the ALJ determined that the plaintiff retains the

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residual functional capacity or RFC to perform all work, work

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at all exertional levels with the following mental

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limitations:

He remains capable of understanding,

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remembering, and carrying out simple one-two-step tasks, can

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accept instructions from supervisors, and relate

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cooperatively with coworkers but only superficial contact

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with the public, occasional decision making, no

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confrontation, negotiation, or responsibility for safety of

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others or fast-paced production line tasks.

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Applying that RFC, the ALJ concluded plaintiff

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cannot perform his past relevant work as a security guard, a

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dairy farm worker, a wrecking mechanic, and a logging

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equipment mechanic.

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He then consulted with a vocational expert who

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opined that, despite his limitations, plaintiff is capable of

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performing as a cleaner/housekeeper, a laundry laborer, and a

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cleaner, either industrial or commercial.

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As you know, my task is limited, scope of review is
highly deferential.

I must determine whether the

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

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Commissioner applied the correct legal principles and his

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determination is supported by -- I'm sorry, her determination

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is supported by substantial evidence.

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In this case, at step two, plaintiff argues that

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the administrative law judge should have concluded that

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plaintiff suffers from additional severe conditions including

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traumatic brain injury, post-concussion syndrome, cognitive

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disorder, mood disorder, and personality change.

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know, the test at step two is fairly de minimus but plaintiff

As you

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retains the burden.

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condition, and it is important that it is not the condition

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that counts but the resulting limitations from the condition.

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The condition must significantly limit the ability to do

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basic work activities.

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The burden is to show that the

In this case, I'm -- I, even if I were to agree

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with the plaintiff, the error would be harmless because the

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administrative law judge did find a severe impairment and

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proceeded to step three.

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Of course, the crucial question is whether at the

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RFC level and steps four and five, the administrative law

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judge considered the effect of all of plaintiff's

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impairments, severe and nonsevere.

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In terms of the physical components of the RFC,

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Dr. Ganesh's consultative exam report adequately provides

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substantial evidence for any exertional requirements of the

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

8
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RFC.

In terms of the listings, plaintiff has raised an

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argument that Listings 12.02, 12.06, 12.08 should have been

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considered, but each of those requires a satisfaction of the

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B criteria and the ALJ concluded that the B criteria could

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not be met when he considered 12.04.
The plaintiff also could not meet the C criteria,

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and those also must be shown with respect to those listings,

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so I don't find any error.

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that those additional mental conditions at step two were

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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

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here and this is definitely a close case.

There is a duty to

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develop the record.

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the record.

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source statements from Dr. Davis and it was not done.

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not sure that there was a gap here that the administrative

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law judge should have filled but it certainly would have been

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helpful to meaningful judicial review to have a consultative

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exam report or a medical source statement that would

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demonstrate, given his cognitive limitations, what plaintiff,

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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

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back.

I think the ALJ properly, in determining credibility,

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applied the required two-step analysis.

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plaintiff's evidence of robust daily activities, the clear

He considered

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

9
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evidence of exaggeration to health care providers to obtain

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Disability Insurance benefits as a revenue stream.

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610 he told Dr. Seigers on March 13th, 2013 he was there to

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get disability.

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The doctor stated that he could not identify any disability.

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At page 619 he stated his intention was, to Dr. Raja,

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R-a-j-a, to get financial help through disability benefits,

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and the record is replete with references to that.

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489, Dr. Davis is told the same thing, that plaintiff

At page

At page 614 again he asked for disability.

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believes he is disabled.

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487, 488,

of the declining of neurocognitive rehabilitation.

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And of course there is the question

But overall, considering the record, I agree with

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plaintiff's counsel that there is apparently a mistaken

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belief by the administrative law judge at page 26 that

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plaintiff's, according to Dr. Davis, plaintiff's condition

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was static and did not deteriorate from 2011 to 2013.

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clearly wrong, according to Dr. Davis' May 2013 report which

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shows slippage in specific areas and the GAF of 44 as I

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indicated previously, and so I think this is a case that

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should be remanded.

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evidence of disability, I think the jury is out as to whether

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Mr. Denslow can meet the requirements of demonstrating

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disability, but I don't think Administrative Law Judge

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Flanagan, with due respect to him, provided a very clear

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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
[phone]

10
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think that the matter ought to be remanded.
So I will grant judgment on the pleadings to the

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plaintiff and remand the matter to the Commissioner for

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further consideration without a directed finding of

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disability.

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you have a good day.

Thank you both for excellent presentations, hope

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MS. CALENZO:

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MR. BENSON:

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Thank you, your Honor.
Thank you very much, your Honor.

(Proceedings Adjourned, 2:40 p.m.)

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

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C E R T I F I C A T I O N

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

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Official Court Reporter in and for the United States

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District Court, Northern District of New York, DO

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HEREBY CERTIFY that I have listened to and

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transcribed the foregoing proceedings and that the

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foregoing is a true and correct transcript thereof

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to the best of my ability.

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s/Jodi L. Hibbard

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________________________________

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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]