Glenn v. Colvin

Filing 21

DECISION AND ORDER granting in part and denying in part 13 Motion for Judgment on the Pleadings; denying 16 Motion for Judgment on the Pleadings.Clerk to update caption (see Footnote 1) and to close case. Signed by Hon. Hugh B. Scott on 11/2/2018. (GAI)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Derrick Glenn, Jr.,
Plaintiff,

Decision and Order
17-CV-27 HBS
(Consent)

v.
Commissioner of Social Security,1
Defendant.

I.

INTRODUCTION
The parties have consented to this Court’s jurisdiction under 28 U.S.C. § 636(c). The Court
has reviewed the Certified Administrative Record in this case (Dkt. No. 9, pages hereafter noted in
brackets), and familiarity is presumed. This case comes before the Court on cross-motions for
judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 13,
16.) In short, plaintiff is challenging the final decision of the Commissioner of Social Security (the
“Commissioner”) that he was not entitled to Supplemental Security Income under Title XVI of the
Social Security Act. The Court has deemed the motions submitted on papers under Rule 78(b).

II.

DISCUSSION
The ultimate issue to be determined by this Court is whether the ALJ’s decision that plaintiff

was not under a disability is supported by substantial evidence. See 42 U.S.C. § 405(g); Rivera v.
Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is defined as “‘more than a mere
scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)).

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The Clerk of the Court is directed to conform the caption of the case to the caption of this decision.

For purposes of Social Security disability insurance benefits, a person is disabled when she is
unable “to engage in any substantial gainful activity by reason of any medically determinable physical
or mental impairment which can be expected to result in death or which has lasted or can be
expected to last for a continuous period of not less than 12 months.” 42 U.S.C. §§ 423(d)(1)(A) &
1382c(a)(3)(A).
Such a disability will be found to exist only if an individual’s “physical or mental impairment
or impairments are of such severity that [he or she] is not only unable to do [his or her] previous
work but cannot, considering [his or her] age, education, and work experience, engage in any other
kind of substantial gainful work which exists in the national economy. . . .” 42 U.S.C. §§ 423(d)
(2)(A) & 1382c(a)(3)(B).
Plaintiff bears the initial burden of showing that her impairments prevent her from returning
to her previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Once this
burden has been met, “the burden shifts to the [Commissioner] to prove the existence of alternative
substantial gainful work which exists in the national economy and which the plaintiff could
perform.” Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626
F.2d 225, 231 (2d Cir. 1980).
To determine whether any plaintiff is suffering from a disability, the ALJ must employ a
five-step inquiry:
(1) whether the plaintiff is currently working;
(2) whether the plaintiff suffers from a severe impairment;
(3) whether the impairment is listed in Appendix 1 of the relevant regulations;
(4) whether the impairment prevents the plaintiff from continuing her past relevant
work; and
(5) whether the impairment prevents the plaintiff from continuing her past relevant
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work; and whether the impairment prevents the plaintiff from doing any kind of
work.
20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be either
disabled or not disabled at any step in this sequential inquiry, the ALJ’s review ends. 20 C.F.R.
§§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However,
the ALJ has an affirmative duty to develop the record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir.
1972).
To determine whether an admitted impairment prevents a plaintiff from performing her past
work, the ALJ is required to review the plaintiff’s residual functional capacity and the physical and
mental demands of the work that she has done in the past. 20 C.F.R. §§ 404.1520(e) & 416.920(e).
The ALJ must then determine the individual’s ability to return to her past relevant work given her
residual functional capacity. Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994).
Plaintiff argues that the Administrative Law Judge (“ALJ”) who rendered an unfavorable
decision improperly discounted his neurogenic bladder and failed to include it among his severe
impairments. According to plaintiff,
the ALJ erred on multiple fronts in his evaluation of Plaintiff’s urge incontinence.
First, he made no finding whatsoever as to whether Plaintiff’s urge incontinence was
a severe or non-severe impairment. This is despite Dr. Fung’s diagnosis and
references in treatment records. (Tr. 311–315). Dr. Fung specifically stated that
“although [Plaintiff] can maintain continence of both [bladder and bowel] in short
duration, he has to rush to the bathroom when the urge kicks in.” (Tr. 315). Plainly,
the need to rush to the bathroom without notice could interfere with the ability to
perform on a regular schedule. This could—in the very least—meet the de minim[i]s
standard of a severe impairment, and therefore needed to be accounted for in
Plaintiff’s RFC.
(Dkt. No. 13-1 at 10.) The Commissioner responds that plaintiff has not satisfied even the light
burden at Step Two for establishing a severe impairment. “Although Plaintiff cites to his diagnosis
of urge incontinence by Dr. Fung in January 2015, this is not sufficient. See Pl.’s Br. at 10 (citing Tr.
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314). The mere existence of a medically determinable impairment does not establish that a more
than minimal impact on Plaintiff’s ability to perform basic work activities. Both Plaintiff’s own
reports of urge incontinence and the medical records reflect that his condition was mild, fleeting, or
both.” (Dkt. No. 16-1 at 16.)
For now, plaintiff has the better argument regarding the possible condition of neurogenic
bladder. “The ALJ has an obligation to develop the record in light of the non-adversarial nature of
the benefits proceedings, regardless of whether the claimant is represented by counsel.” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). At his hearing, plaintiff did not use the
phrase “neurogenic bladder,” but he described circumstances when he would “have to rush and go
to the bathroom.” [50.] The medical records mention in early 2013 that neurogenic bladder was
suspected and in early 2014 that it continued. [218, 315.] Admittedly, other places in the records are
silent about neurogenic bladder symptoms when some mention of symptoms might have been
expected. [225, 264, 266, 277, 287, 285, 294, 295.] Nonetheless, the record implies that plaintiff had
neurogenic bladder symptoms for at least a year. See 20 C.F.R. § 404.1519a(b)(4) (consultative
examination needed when “the current severity of your impairment is not established”); cf. Janas v.
Barnhart, 451 F. Supp. 2d 483, 503 (W.D.N.Y. 2006) (insufficient consideration of a claimant’s
urinary problems, regardless of physical or psychogenic origin). The implication should be explored
further, considering that the ALJ already has mentioned that the “inability to sit for long periods”
[23] can affect a claimant’s residual functional capacity. As of now, the ALJ’s only consideration of
possible neurogenic bladder was a passing reference to a physician’s suspicion of the condition.
[25.] Cf. Torres v. Comm’r, No. SAG-15-3294, 2016 WL 5108022, at *4 (D. Md. Sept. 20, 2016) (“The
ALJ’s brief mention of Dr. Garges’s December, 1995 letter does not constitute a sufficient
functional assessment of Mr. Torres’s neurogenic bladder, because the ALJ did not consider whether
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any functional limitations applied to his condition. Nor did the ALJ conclude that the record failed
to show the need from any such limitations. Accordingly, the ALJ failed to consider Mr. Torres’s
neurogenic bladder diagnosis and remand is required as a result.”) (citation omitted).
Under these circumstances, remand is appropriate to develop a more complete record about
the current extent, if any, of plaintiff’s neurogenic bladder. While the ALJ officially has the burden
of developing the administrative record, plaintiff’s counsel is encouraged to provide assistance as
needed. During the remand, the ALJ may review the other issues that plaintiff has raised here, but
the Court will not address them at this time.
III.

CONCLUSION
For the above reasons, the Court denies the Commissioner’s motion (Dkt. No. 16). The

Court grants plaintiff’s cross-motion (Dkt. No. 13) in part to vacate the Commissioner’s final
decision and to remand the matter for further proceedings consistent with this Decision and Order.
The Court denies plaintiff’s cross-motion to the extent that it seeks any other relief.
The Clerk of the Court is directed to close the case.
SO ORDERED.

__/s Hugh B. Scott________
Hon. Hugh B. Scott
United States Magistrate Judge
DATED: November 2, 2018

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