Miller v. Colvin

Filing 12

ORDER: It is Ordered that Plaintiff's # 9 Motion for Judgment on the Pleadings filed by John S. Miller is GRANTED. 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. The # 1 Complaint is hereby REMANDED to the Acting Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. The clerk is respectfully dir ected to enter judgment, based upon this determination, remanding the matter to the Acting Commissionerpursuant to sentence four of 42 U.S.C. section 405(g) and closing this case. Signed by Magistrate Judge David E. Peebles on 9/27/2017. {With Attached Transcript of a Decision held during a telephone conference call held on 9/25/2017} (jmb)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

JOHN S. MILLER,
Plaintiff,
v.

Civil Action No.
7:16-CV-1520 (DEP)

NANCY A. BERRYHILL 1, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.
MELISSA A. PALMER, 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
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ELIZABETH D. ROTHSTEIN, ESQ.
Special Assistant U.S. Attorney

Carolyn Colvin, the former Acting Commissioner of Security, was recently replaced
by Nancy A. Berryhill, who currently serves in that position. Because Carolyn Colvin has
been 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), 1383(c)(3), are
cross-motions for judgment on the pleadings. 2 Oral argument was
conducted in connection with those motions on September 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

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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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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
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:

September 27, 2017
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
JOHN S. MILLER,
Plaintiff,
vs.

7:16-CV-1520

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on September 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:

OLINSKY LAW GROUP
Attorneys at Law
300 South State Street
Suite 420
Syracuse, New York 13202
BY: MELISSA A. PALMER, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
BY: ELIZABETH D. ROTHSTEIN, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right, I'll have to let that be the

last word.
So I have before me a request for judicial review

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of an adverse determination by the Acting Commissioner

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pursuant to 42 United States Code Section 405(g) and

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

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The plaintiff was

born in June of 1966, is currently 51 years old, he was 48

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years old at the time of the hearing and 46 years old at the

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time of his application for benefits.

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5-foot-8 inches in height, and he's right-hand dominant.

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is married, has no children under 18, lives in an apartment

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in Watertown.

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specific training in both auto mechanics, small engines, and

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culinary.

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last worked in 2006, answering questions in a call center.

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He is 5-foot-7 or
He

He is a high school graduate and has some

He went to the Culinary Institute of America.

He

He suffers from chronic back pain and in the past,

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there's reference in 2009 to neck pain as well.

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suffers from rosacea, hypertension, hyperlipidemia, and

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claims to also suffer from depression and post-traumatic

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stress disorder although I did not find reference to

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treatment for any mental conditions in the record.

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He also

Plaintiff first saw Dr. Laverne VanDeWall for his
back, was referred to Dr. Bhupinder Bolla, a pain specialist.

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

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He was later referred to Dr. Richard DiStefano of Syracuse

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Orthopedic Specialists or SOS, an orthopedic surgeon, in

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November 2003 -- 13, I'm sorry, who determined that plaintiff

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was not a suitable candidate for surgery.

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began treating with Dr. Hardik Patel of the Evans Mills

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clinic in March of 2014 for chronic lumbago and depressive --

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DDD, degenerative disk disease.

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or magnetic resonance image, testing performed on March 27,

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2013.

Plaintiff also

There is, there was an MRI,

That appears at page 165 of the record.

That reflects

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diffuse disk bulges at L3-4 and L4-5 with minimal thecal sac

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compression, diffuse disk bulge in small right paracentral

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disk extrusion at the L5-S1 level with minimal compression of

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the thecal sac and right S1 nerve as it exits the thecal sac.

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The disk extrusion is increased in size compared to the

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previous study.

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There is no other significant change.

In terms of medications, at various times plaintiff

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has been prescribed tramadol, Lyrica, Percocet, Flexeril,

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Medrol, Neurontin, Vicodin, Cymbalta, Tylenol 4.

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undergone some physical therapy and has a TENS unit, although

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he apparently does not use it.

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takes extra medications at times and the record supports

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that, that he has doubled up on his dosage on occasion and

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run out of medications.

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2014 and ended up in an emergency room.

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prescribed a cane.

Also has

Plaintiff testified that he

He overdosed on tramadol in June of
He has been

He states that he has difficulty standing

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

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and walking.

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and numbness, low back pain.

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takes care of his wife and does chores around the house.

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He suffers from leg pain radiating down his leg
He, as counsel indicated, he

Procedurally, plaintiff applied for Supplemental

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Security Income or SSI benefits on December 18, 2012 alleging

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a disability onset date of June 2, 2006.

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2014, a hearing was conducted by Administrative Law Judge

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John Lischak.

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decision finding that plaintiff was not disabled at the

On September 22,

On April 2, 2015, ALJ Lischak issued a

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relevant times and therefore ineligible for benefits.

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became a final determination of the agency on October 20,

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2016, when plaintiff's request to the Social Security

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Administration Appeals Council for judicial -- for review of

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that determination was denied.

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That

In terms of the decision, ALJ Lischak applied the

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familiar five-step test for determining disability.

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one, concluded that plaintiff was -- had not engaged in

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substantial gainful activity since the date of his

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application on December 18, 2012.

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At step

At step two, he concluded that the plaintiff

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suffers from a back disorder and neuropathy affecting the

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right hand and arm.

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At step three he concluded that the conditions did

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not meet or medically equal any of the listed presumptively

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disabling conditions set forth in the Commissioner's

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

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regulations, based in large part upon Exhibit 9F,

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interrogatory responses from Dr. Brahms.
After surveying the medical evidence, ALJ Lischak

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concluded that plaintiff retains the residual functional

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capacity or RFC to perform light work with very specific

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additional limitations that are set out on page 20 of the

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record.

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At step four, the administrative law judge
concluded that plaintiff is capable of performing his past

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relevant work as a teleserve representative in a call center,

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but went on to find alternatively at step five, that based

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upon the ability to perform the RFC determined and with the

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assistance of a vocational expert, concluded that plaintiff

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could perform in the positions of an addresser, a document

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preparer, and an order clerk, all of which were sedentary

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positions, SVP rating of 2.

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plaintiff was not disabled at the relevant times.

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He therefore concluded that

My role is limited to determining whether ALJ

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Lischak's determination is supported by substantial evidence

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and correct legal principles were applied.

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deferential standard.

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It is a fairly

There's no question that complaints of pain

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represent important elements in a disability determination.

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The case -- one of the cases cited by the plaintiff,

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Rockwood, indicates that and I don't think that's a very

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

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controversial finding.

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claims are entitled to weight, if they're objectively

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supported.

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conclusion which ALJ Lischak did make that plaintiff suffers

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from a condition that could reasonably be an objectively

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determinable condition that reasonably could cause the pain

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that he claims to experience so it boils down then to the

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evaluation of plaintiff's subjective claims of pain.

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Rockwood v. Astrue.

So plaintiff's

Here, there is an MRI finding that supports the

So the determination of pain is accomplished

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pursuant to 20 CFR Section 416.929, and the Social Security

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Ruling that has now been superseded that was cited by

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plaintiff and was in force at the relevant times, 96-7P.

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prescribes the two-step process which was undertaken here,

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but it requires the consideration of factors when a

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plaintiff's allegations of pain are not fully credited.

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factors include daily activities, location, duration,

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frequency, and intensity of pain or other symptoms,

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precipitating and aggravating factors, type, dosage,

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effectiveness, and side effects of any medication taken to

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alleviate the pain, treatment other than medication received

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or -- for relief for the pain or other symptoms.

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those demonstrate the importance of, as do cases including

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from the Second Circuit, the importance of the administrative

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law judge laying out reasoning so that effective judicial

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review can be performed.

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

It

The

And both of

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The case that struck me as very helpful was Lewis

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v. Apfel, 62 F.Supp.2d 648, shows how important it is to --

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for the ALJ to consider all available evidence and state

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specific reasons for a credibility determination sufficient

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to permit meaningful review.

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the rationale can be gleaned from the ALJ's decision, the

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four corners of that decision, then remand is not required.

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Cichocki and Mongur v. Heckler point that out.

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Cichocki, it was noted that there doesn't need to be a

As the Commissioner argues, if

And in

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slavish recitation of the seven factors.

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does need to provide a basis for meaningful review and to

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actually consider those factors.

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However, the ALJ

The credibility analysis which appears at pages 21

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and 22 primarily of the record is woefully deficient.

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due respect to ALJ Lischak who I know and respect, it doesn't

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discuss daily activities, it doesn't have any meaningful

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discussion as to medications, and the efforts that the

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plaintiff made to secure relief from his claimed pain.

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doesn't -- it doesn't discuss the factors to a sufficient

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degree that I think I can make a meaningful determination

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that he has complied with that Social Security Ruling and the

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regulations.

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With

It

So, on the other hand, I don't find that there is

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persuasive evidence of disability.

I recognize the arguments

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raised by the Commissioner but that kind of post hoc analysis

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

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is not sufficient.

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2017 WL 1753442 which I find to be extremely similar to this

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case, I will grant judgment on the pleadings to the plaintiff

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without a directed finding of disability, and remand the

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matter to the agency for further consideration.

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So, and citing Morrow, King v. Berryhill,

Thank you both for excellent presentations and I

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hope you have a good afternoon.

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MS. PALMER:

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MS. ROTHSTEIN:

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Thank you, your Honor.
Thank you, your Honor.

(Proceedings Adjourned, 2:23 p.m.)

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

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CERTIFICATE OF OFFICIAL REPORTER

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

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 25th day of September, 2017.

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/S/ JODI L. HIBBARD

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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]