Perry v. Commissioner of Social Security
Filing
15
DECISION AND ORDER granting 9 Plaintiff's Motion for Judgment on the Pleadings; denying 13 Commissioner's Motion for Judgment on the Pleadings; and remanding this case solely for the calculation and payment of benefits. The Clerk of Court is directed to close this case.. Signed by Hon. Michael A. Telesca on 1/4/19. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
____________________________________
DWIGHT THOMAS PERRY
Plaintiff,
1:17-cv-01306-MAT
DECISION AND ORDER
-vNANCY A. BERRYHILL,
Acting Commissioner OF Social Security,
Defendant.
____________________________________
INTRODUCTION
Dwight Thomas Perry (“Plaintiff”), represented by counsel,
brings this action under Titles II and XVI of the Social Security
Act (“the Act”), seeking review of the final decision of the Acting
Commissioner
of
Social
Security
(“the
Commissioner”
or
“defendant”), denying his application for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income (“SSI”). The
Court has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c). Presently before the Court are the parties’
competing
motions
for
judgment
on
the
pleadings
pursuant
to
Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons
set
forth
below,
the
Commissioner’s
decision
is
reversed,
Plaintiff’s motion is granted to the extent that the matter is
remanded
solely
for
calculation
and
Accordingly, Defendant’s motion is denied.
payment
of
benefits.
PROCEDURAL BACKGROUND
On
November
20,
2008,
Plaintiff
protectively
filed
for
Disability Insurance Benefits (“DIB”) and Social Security Income
(“SSI”),
alleging
disability
beginning
March
11,
2007.
Administrative Transcript (“T.”) 244-49. The claim was initially
denied on April 22, 2009, and Plaintiff timely requested a hearing.
T. 127-34. On September 14, 2010, a hearing was conducted in
Buffalo, New York by administrative law judge (“ALJ”) William M.
Weir.
T.
81-104.
Plaintiff
appeared
with
his
attorney
and
testified. ALJ Weir issued an unfavorable decision on October 7,
2010. T. 109-18. Plaintiff timely requested review of the ALJ’s
decision by the Appeals Council (“AC”). On May 25, 2012, the AC
remanded the case for further development of the record. T. 123-25.
On October 22, 2012, Plaintiff appeared with his attorney and
testified before ALJ Weir at a second hearing in Buffalo, New York.
T. 34-80. A vocational expert (“VE”) and medical expert (“ME”) also
testified. Id. ALJ Weir issued a second unfavorable decision on
April 24, 2013. T. 14-28. Plaintiff again requested review of the
ALJ’s decision by the AC. T. 12. The AC denied Plaintiff’s request
for review on October 21, 2014, making ALJ Weir’s decision the
final decision of the Commissioner. T. 1-3. Plaintiff then timely
commenced an action in this Court and, on January 1, 2016, the case
was remanded to the Commissioner for further proceedings. T. 563-
2
70;
Perry
v.
Colvin,
No.
1:14-CV-01028(MAT),
2016
WL
241364
(W.D.N.Y. Jan. 21, 2016).
On September 26, 2016, a hearing was conducted in Buffalo,
New York by ALJ Sharon Seeley. T. 481-538. Plaintiff appeared with
his attorney and testified. A VE also testified. Id. ALJ Seeley
issued a partially favorable decision on October 4, 2017. T. 44972. Plaintiff then timely commenced this action.
THE ALJ’S DECISION
ALJ
Seeley
applied
the
five-step
sequential
evaluation
promulgated by the Commissioner for adjudicating disability claims.
See 20 C.F.R. §§ 404.1520(a) and 416.920(a). At step one of the
sequential evaluation, ALJ Seeley found that Plaintiff had not
engaged in substantial gainful activity since the alleged onset
date of March 11, 2007. T. 457.
At step two, ALJ Seeley determined that since the alleged
onset date of March 11, 2007, Plaintiff suffered from the “severe”
impairments of degenerative disc disease of the lumbar spine;
learning disability; and alcohol use/dependence. T. 457. ALJ Seeley
also determined that Plaintiff’s medically determinable impairments
of asthma and acute costochondritis had no more than a minimal
impact on Plaintiff’s ability to work and thus, were non-severe.
T. 457-58. ALJ Seeley further found Plaintiff’s alleged impairment
of adjustment disorder with mixed anxiety and depressed mood was
3
not supported by the medical record and accordingly, was not a
medically determinable mental impairment. T. 458-60.
At step three, ALJ Seeley found that since the alleged onset
date, Plaintiff did not have an impairment or combination of
impairments that met or medically equaled an impairment listed in
20 C.F.R. Part 404, Subpart P, Appendix 1. T. 460.
Before proceeding to step four, ALJ Seeley assessed that prior
to May 14, 2014, Plaintiff had the residual functional capacity
(“RFC”) to perform less than the full range of light work as
defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), with the
following
limitations:
could
lift
and
carry
twenty
pounds
occasionally and ten pounds frequently; sit six hours in an eighthour workday; stand and/or walk six hours in an eight-hour workday;
occasionally balance, stoop, kneel, crouch, crawl, and climb ramps
or stairs and ladders, ropes or scaffolds; could understand,
remember, and carry out simple, routine instructions and tasks;
maintain attention and concentration sufficient for such tasks with
customary
breaks; make
simple,
routine
work-related
decisions
commensurate with such tasks; and work in an environment with no
more than occasional changes in work routines, processes, or
setting; could have occasional interaction with coworkers, but not
work in teams or in tandem with others; and have occasional
interaction with the general public. T. 461-62.
4
ALJ Seeley further assessed that as of May 14, 2014, Plaintiff
had the RFC to perform less than a full range of sedentary work as
defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with the
following limitations: can lift and carry ten pounds occasionally
and light items such as folders or small tools frequently; can sit
six hours in an eight-hour workday; stand and/or walk two hours in
an eight-hour workday; occasionally balance, stoop, and climb ramps
or stairs and rarely (meaning one-to-five percent of the workday)
kneel, crouch, crawl, and climb ladders, ropes or scaffolds; he can
understand, remember, and carry out simple, routine instructions
and tasks; maintain attention and concentration sufficient for such
tasks with customary breaks; make simple, routine work-related
decisions commensurate with such tasks; and work in an environment
with no more than occasional changes in work routines, processes,
or setting; can have occasional interaction with coworkers, but not
work in teams or in tandem with others; and have occasional
interaction with the general public. T. 467-68.
At step four, ALJ Seeley determined that Plaintiff has been
unable to perform any past relevant work since the alleged onset
date of March 11, 2007. T. 469. At step five, ALJ Seeley relied on
the VE’s testimony to find that, taking into account Plaintiff’s
age, education, work experience, and RFC, there were jobs that
existed
in
significant
numbers
in
the
national
economy
that
Plaintiff could have performed from the period of March 11, 2007
5
through May 13, 2014, including the representative occupations of
cleaner, assembler, and cafeteria attendant. T. 470-71.
ALJ Seeley further found that beginning on May 14, 2014,
taking into account Plaintiff’s age, education, work experience,
and updated RFC, there are no jobs that exist in significant
numbers in that national economy that Plaintiff can perform.
T. 471. Accordingly, ALJ Seeley found that Plaintiff has been
disabled since May 14, 2014. T. 472.
SCOPE OF REVIEW
A
district
court
may
set
aside
the
Commissioner’s
determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner’s findings of fact,
provided that such findings are supported by “substantial evidence”
in the record. See 42 U.S.C. § 405(g) (the Commissioner’s findings
“as to any fact, if supported by substantial evidence, shall be
conclusive”). “Substantial evidence means ‘such relevant evidence
as
a
reasonable
mind
might
accept
as
adequate
to
support
a
conclusion.’” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)
(quotation
omitted).
The
reviewing
court
nevertheless
must
scrutinize the whole record and examine evidence that supports or
detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774
6
(2d Cir. 1998) (citation omitted). “The deferential standard of
review
for
substantial
evidence
does
not
apply
to
the
Commissioner’s conclusions of law.” Byam v. Barnhart, 336 F.3d 172,
179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984)).
DISCUSSION
Plaintiff contends the ALJ’s determination that Plaintiff’s
onset date was May 14, 2014 is not supported by substantial
evidence. In particular, Plaintiff argues the ALJ erred in assuming
Plaintiff’s onset date was the same day as Plaintiff’s MRI showing
lumbar spine impairment worsening, without taking any testimony
from a medical advisor. For the reasons set forth below, the Court
finds the ALJ’s onset date determination of May 14, 2014 is
unsupported by substantial evidence.
I.
Plaintiff’s History of Lower Back Pain Prior to May 14, 2014
On November 20, 2008, Plaintiff protectively filed for DIB and
SSI, alleging disability beginning March 11, 2007, due to three
slipped discs in his back, neck and back injury, arthritis, memory
problems, asthma, and a learning disability. T. 244-49.
On January 22, 2009, Plaintiff complained to Dr. Pratibha
Bansal of constant, shooting pain in his lower back that radiated
down to both knees, with occasional numbness in his right knee
area. T. 361. Plaintiff reported these symptoms began in 2000 and
7
was aggravated by standing and walking for prolonged periods of
time. Id.
On March 31, 2009, Plaintiff received an internal medicine
examination by consultative examiner, Dr. Cindrea Bender. T. 36972. Plaintiff reported back pain located in the center of his lower
back, radiating to both sides and on occasion, down both lower
extremities. T. 369. Plaintiff reported the pain began in 2000 with
no inciting injury. Plaintiff reported going to physical therapy
twice a week for the past year, which improves his pain. Id.
Upon examination, Plaintiff exhibited an abnormal gait, with
marked stiffness and a wide stance. T. 370. Plaintiff was able to
walk on heels and toes without difficulty, but was only able to
squat at twenty percent. Id. Plaintiff’s cervical spine showed full
flexion, extension, lateral flexion and full rotary movements
bilaterally. His lumbar spine showed full flexion at forty-five
degrees and extension to five degrees. Lateral flexion was fifteen
degrees bilaterally, and lumbar spine rotation was fifteen degrees
bilaterally. T. 371. Plaintiff’s straight leg raising test was
negative on both sides and he exhibited a full range of motion of
his hips, knees, and ankles on both sides. Id.
Dr. Bender opined Plaintiff had moderate limitations with
bending, lifting
excessively
large
objects,
walking
prolonged
distances, sitting prolonged periods and standing for prolonged
periods secondary to his low back pain. T. 372. Dr. Bender further
8
opined
Plaintiff
had
mild
limitations
with
walking
prolonged
distances and climbing an excessive number of stairs secondary to
his asthma, and should avoid environmental triggers of asthma. Id.
On
April
22,
2009,
a
lumbar
spine
X-ray
revealed
mild
spondylosis and right-side sacroiliac changes. T. 422. On May 2,
2009, a lumbar spine MRI revealed disc degeneration with loss of
disc height, loss of disc signal, and bulging annulus and end plate
granulation at L1-L4. T. 421. L5-S1 had disc degeneration with loss
of disc height, loss of disc signal, end plate granulation and
edema and bulging annulus. No spinal stenosis or disc herniation
was noted. Id.
On May 11, 2009, Dr. Walter Grand examined Plaintiff and
reviewed the MRI results. T. 416. Dr. Grand diagnosed Plaintiff
with lumbago, lumbar spondylosis without myelopathy and noted the
MRI appeared to reveal degenerative disc disease. Id.
On
April
1,
2010,
neurologist
Dr.
Marc
Frost
examined
Plaintiff for his low back pain. Plaintiff reported his back pain
had been worsening since 2000, but originated from a 1988 motor
vehicle accident. T. 445. Dr. Frost noted Plaintiff’s medical
history was significant for back pain, with asthma and depression,
and
an
apparent
history
of
ulcers.
Dr.
Frost
further
noted
Plaintiff’s social history was noncontributory to his symptoms. Id.
Upon
limitations
examination,
and
Dr.
give-way
in
Frost
his
9
noted
motor
Plaintiff
strength
due
had
some
to pain,
particularly in his lower extremities. T. 446. Plaintiff had some
patchy diminished pinprick sensation in his lower extremities. His
plantar responses were down-going on both sides. The straight leg
raising test produced pain at minimal elevation. Dr. Frost noted
Plaintiff’s gait was antalgic, but stable, and Plaintiff’s posture
was mildly hunched and bent at the waist. Id. Plaintiff was unable
to perform a deep knee bend. Dr. Frost assessed Plaintiff with
degenerative
disease
in
his
lumbar
spine,
and
suspected
his
symptoms were primarily musculoskeletal. Plaintiff was prescribed
gabapentin, three times daily. Id.
The record contains no medical records from 2011 through May
2014. See T. 466. Plaintiff testified his lack of treatment during
that period was due to a lack of insurance. T. 499-503.
On May 14, 2014, Plaintiff underwent an MRI of the lumbar
spine.
T.
790.
The
MRI
revealed
disc
space
narrowing,
disc
desiccation, and a small midline disc herniation exerting mass
effect on the thecal sac and exiting bilateral nerve roots at L5S1.
It
further
revealed
mild
disc
space
narrowing
and
disc
desiccation without appreciable stenosis at L1-L4. Id.
II.
ALJ Seeley’s Finding that Disability Began on May 14, 2014 is
Not Supported by Substantial Evidence
In her decision, ALJ Seeley recounted the medical history
noted
above.
See
T.
463-65.
However,
she
found
that
while
Plaintiff’s medically determinable impairments could reasonably be
expected to cause his alleged symptoms, his statements concerning
10
the intensity, persistence, and limiting effects of his symptoms
were not fully supported prior to May 14, 2014. T. 465. She further
found that while Plaintiff testified his lack of insurance impaired
his ability to obtain medical treatment, the treatment that does
exist in the record does not strongly support his allegations.
T. 466. Furthermore, ALJ Seeley noted that the record does not
contain recommendations of aggressive treatment that Plaintiff was
unable to afford. Id. Accordingly, ALJ Seeley found that Plaintiff
was not disabled prior to May 14, 2014. T. 471.
Plaintiff contends ALJ Seeley’s determination that Plaintiff
was
not
disabled
prior
to
May
14,
2014
is
unsupported
by
substantial evidence because ALJ Seeley failed to seek the medical
opinion of
a
medical
advisor
as
required
by
Social
Security
Regulation (“SSR”) 83-20, 1983 WL 31249 (Jan. 1, 1983). For the
reasons set forth below, the Court agrees.
Plaintiff alleged disability beginning March 11, 2007. T. 24449. While Plaintiff testified he believed he tried to do some parttime cleaning work in 2009, earning records indicate no earnings
since 2007. T. 457 citing T. 233-40.
“As a general rule, a claimant’s allegation regarding the date
of onset must be accepted provided it is consistent with medical
evidence of record.” Nix v. Colvin, No. 15-CV-0328-FPG, 2016 WL
3681463, at *5 (W.D.N.Y. July 6, 2016) (quoting Corbett v. Comm’r
of Soc. Sec., No. 7:08-CV-1248, 2009 WL 5216954, at *13 (N.D.N.Y.
11
Dec. 30, 2009) (citing SSR 83-20, at*3)). When the ALJ determines
the onset date is different than the date the claimant alleges, the
ALJ has an affirmative duty to adduce substantial evidence to
support the new onset date. Id.
SSR
83-20
further
provides
that
with
slow
progressive
impairments, such as Plaintiff’s degenerative disc disease of the
lumbar spine in this case, it is sometimes impossible to obtain
medical evidence establishing the precise date that an impairment
became disabling. Id. at *2. In such cases, “it is not necessary
for an impairment to have reached listing severity (i.e., be
decided on medical grounds alone) before onset can be established.”
Id. Instead, it may be possible, based on the medical evidence
available,
to
reasonably
infer
that
the
onset
date
occurred
sometime prior to the date of the first medical examination, such
as when the claimant stopped working. Id. at *3.
“An inferred onset date, however, ‘depends on an informed
judgment of the facts in the particular case’ and must have a
‘legitimate medical basis.’” Feliciano v. Colvin, No. 14cv5391-FM,
2016 WL 4272375, at *5 (S.D.N.Y. Aug. 10, 2016) (quoting SSR 83-20,
at *3). Accordingly, in such cases, SSR 83-20 provides that the ALJ
“should
call
necessary,
on
the
services
“[i]nformation
may
of
a
[also]
medical
be
advisor”
obtained
from
and,
if
family
members, friends, and former employers to ascertain why medical
evidence is not available for the pertinent period and to furnish
12
additional
evidence
regarding
the
course
of
the
individual’s
condition.” Id. at *3.
The Court finds ALJ Seeley’s determination that Plaintiff was
disabled from May 14, 2014 forward is well-supported by substantial
evidence. In particular, ALJ Seeley supported her finding with an
MRI dated May 14, 2014 that revealed Plaintiff’s degenerative disc
disease of the lumbar spine had continued to worsen since his 2009
MRI. (The 2009 MRI showed multi-level disc degenerative changes,
abnormal disc height and disc signal, and bulging annulus at all
levels of Plaintiff’s lower spine, with the exception of L4-L5.
T. 464, 468.)
ALJ Seeley further supported her disability finding with the
medical
records
Specifically,
subsequent
ALJ
Seeley
to
found
the
that
May
the
2014
MRI.
level
of
T.
469.
treatment
Plaintiff pursued, along with his treating source’s opinions since
the 2014 MRI corroborated Plaintiff’s allegations of disability.
Id.
The
Court
further
finds,
however,
that
ALJ’s
Seeley’s
determination that Plaintiff’s disability did not begin prior to
May 14, 2014 is not adequately supported by substantial evidence.
SSR 83-20 plainly provides that where the medical evidence of
record does not provide a clear onset date and the date must be
inferred, the ALJ should seek the assistance of a medical expert to
13
make this inference. Id. (“At the hearing, the [ALJ] should call on
the services of a medical advisor when onset must be inferred.”).
ALJ Seeley made no attempts to enlist the services of a
medical advisor, nor did she seek information from Plaintiff’s
family members, friends, or former employers to provide additional
evidence regarding Plaintiff’s degenerative condition and how it
impacted his ability to function prior to the May 2014 MRI. See SSR
83-20, at *3.
If
reasonable
inferences
about
the
progression of the impairment cannot be made
on the basis of the evidence in file and
additional relevant medical evidence is not
available, it may be necessary to explore
other sources of documentation. Information
may be obtained from family members, friends,
and former employers to ascertain why medical
evidence is not available for the pertinent
period and to furnish additional evidence
regarding the course of the individual’s
condition.
Instead, ALJ
Seeley
independently
determined
that
Plaintiff’s
degenerative disc disease impairments became disabling on May 14,
2014
-
the
date
he
underwent
an
MRI
that
showed
continued
degenerative changes. T. 467-68. This was error. See Martinez v.
Barnhart, 262 F.Supp.2d 40, 46 (W.D.N.Y. 2003) (collecting cases)
(“the ALJ should have appointed a medical advisor to assist him in
selecting an appropriate onset date that could be inferred from the
record as a whole.”).
The Court finds the Commissioner’s argument unconvincing that
ALJ Seeley was not required to utilize a medical advisor in this
14
instance. The Second Circuit has held that an ALJ is not required
to seek the opinion of a medical advisor to infer an onset date as
long as substantial evidence supports the ALJ’s onset date finding.
See Monette v. Astrue, 269 F. App’x 109, 112 (2d Cir. 2008).
However, Monette is clearly distinguishable from the facts of this
case.
In Monette, the ALJ cited to contemporaneous medical records
to
support
particular
the
finding
period,
plaintiff
including
was
medical
not
disabled
assessments
during
of
a
minimal
functional limitations throughout the period Monette claimed he
should
have
been
found
to
be
disabled.
See
id.
at
*113.
Accordingly, medical evidence supported the ALJ’s finding that
Monette’s disability did not begin prior to the determined onset
date.
However, this case is distinguished from Monette since there
were no medical records between 2010 and 2014 for ALJ Seeley to
base her onset date determination - or to support the conclusion
that there was no disability during that period. Accordingly, it
was error for ALJ Seeley to conclude Plaintiff was not disabled
prior to May 14, 2014, without first calling a medical advisor to
testify at the hearing. See Czerniejewski v. Astrue, No. 07-CV476A, 2008 WL 4296638 at *6 (W.D.N.Y. Sept. 19, 2008) (Ambiguous
medical evidence required the ALJ to call upon the services of a
medical advisor to infer the disability onset date); see also
15
Martinez, 262 F.Supp.2d at 48 (“Just because plaintiff’s disability
went untreated does not mean he was not disabled.”) (quoting Shaw
v. Chater, 221 F.3d 126, 133 (2d Cir. 2000).
REMEDY
Under 42 U.S.C. § 405(g), the district court has the power to
affirm, modify, or reverse the ALJ’s decision with or without
remanding for a rehearing. Remand solely for calculation and
payment of benefits is appropriate where the record persuasively
demonstrates the claimant’s disability, Parker v. Harris, 626 F.2d
225, 235 (2d Cir. 1980), and there is no reason to conclude that
additional evidence exists that might support the Commissioner’s
claim that the claimant is not disabled, Butts v. Barnhart, 388
F.3d 377, 385–86 (2d Cir. 2004).
For the reasons set forth above, the Court finds that ALJ
Seeley failed to follow the procedures set for in SSR 83-20 and
further
failed
to
support
her
onset
date
determination
with
substantial evidence. Furthermore, the ALJ already found Plaintiff
was
disabled
as
of
May
14,
2014.
Additionally,
there
is
no
contradictory medical evidence in the record that Plaintiff was not
disabled during the period he was uninsured and not receiving
treatment. Moreover, Plaintiff’s claim had already been remanded by
this Court once before and “the Second Circuit has consistently
emphasized the importance of the Commissioner’s burden to support
her step-five determination with substantial evidence, and has held
16
that
a
reversal
with
a
remand
only
to
calculate
damages
is
warranted when the ALJ has failed to meet that burden.” Peach v.
Berryhill, No. 1:17-CV-00201-MAT, 2018 WL 4140613, at *5 (W.D.N.Y.
Aug. 30, 2018) (internal quotation marks omitted).
Finally, while SSR 83-20 directs that ALJ Seeley should have
appointed a medical advisor to assist with the determination of an
onset date, or otherwise develop the record more throughly, that
step is not necessary at this stage. See Martinez, 262 F.Supp.2d at
49 (remanding for calculation and payment of benefits where the
record demonstrated disability, there were no other medical records
available, and further administrative proceedings would serve no
purpose).
The
record
in
this
case
is
complete,
and
further
development cannot reasonably be expected to support a finding that
Plaintiff is not disabled. Accordingly, the Court finds that remand
solely for the calculation and payment of benefits from the date of
Plaintiff’s alleged onset date of March 11, 2007 is warranted.
CONCLUSION
For
the
foregoing
reasons,
the
Court
finds
that
the
Commissioner’s decision was legally erroneous and is not supported
by substantial evidence. It therefore is reversed. Accordingly,
Defendant’s motion for judgment on the pleadings (Docket No. 13) is
denied, and Plaintiff’s motion for judgment on the pleadings
(Docket No. 9) is granted. The case is remanded solely for the
17
calculation and payment of benefits. The Clerk of Court is directed
to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
_____________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
January 4, 2019
Rochester, New York
18
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