King v. Astrue

Filing 12

DECISION AND ORDER granting judgment on the pleadings in favor of plaintiff and remanding this matter to the Social Security Administration for the calculation of benefits. Signed by Hon. Michael A. Telesca on 1/26/12. (JMC)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
___________________________________________________
ZELMA D. KING,
Plaintiff,

10-CV-6219
DECISION
and ORDER

v.
MICHAEL J. ASTRUE, Commissioner
of Social Security

Defendant.
___________________________________________________
INTRODUCTION
Plaintiff Zelma King(“Plaintiff”) brings this action pursuant
to 42 U.S.C. § 1383 (c)(3) and 42 U.S.C. § 405(g) of the Social
Security Act (“the Act”) seeking review of a final decision of the
Commissioner

of

Social

Security

(“Commissioner”),

denying

her

application for Supplemental Security Income (“SSI”).
The Commissioner moves for judgment on the pleadings pursuant
to Federal Rule of Civil Procedure 12(c) (“Rule 12(c)”) on the
grounds that the Administrative Law Judge’s (“ALJ”) decision was
supported

by

substantial

evidence.

Plaintiff

opposes

the

Commissioner’s motion and cross-moves for judgment on the pleadings
pursuant to Rule 12(c), on grounds that the Commissioner’s decision
was erroneous and not supported by substantial evidence in the
record. For the reasons set forth herein, the Court finds that the
record

does

improvement

not
to

contain
support

substantial
the

evidence

Commissioner’s

of

decision

a

medical
to

deny

Plaintiff a closed period of disability benefits. Therefore the
Plaintiff’s motion for judgment on the pleadings is granted.

BACKGROUND
On

September

14,

2006,

Plaintiff

protectively

filed

an

application for SSI alleging disability beginning August 30, 2005.
Her claim was denied on March 5, 2007. Plaintiff then filed a
timely request for a hearing. On November 20, 2008, Plaintiff
appeared at a video hearing before ALJ Theresa C Timlin. In a
decision dated April 23, 2009, the ALJ determined that from August
30, 2005 through September 30, 2008, Plaintiff had been disabled.
The ALJ also determined that as of October 1, 2008, medical
improvement occurred and Plaintiff was no longer disabled. On
February 17, 2010, the ALJ’s decision became the Commissioner’s
final decision after the Appeals Council denied Plaintiff’s request
for review. On June 4, 2009, Plaintiff filed a second application
for SSI benefits. Based on that second filing, Plaintiff was found
to be disabled and as of June 4, 2009 is currently receiving SSI
benefits. On April 19, 2010, Plaintiff filed the instant action.
The issue before the Court is whether Plaintiff was disabled
between October 1, 2008, the date a medical improvement was found,
and June 4, 2009.
DISCUSSION
I. Jurisdiction and Scope of Review
42 U.S.C. § 405(g) grants jurisdiction to district courts to
hear claims based on the denial of Social Security benefits.
Additionally, the section directs that when considering such a
2

claim, the Court must accept the findings of fact made by the
Commissioner,

provided

that

such

findings

are

supported

by

substantial evidence in the record. Substantial evidence is defined
as, “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Consolidated Edison Co. v. NLRB,
305 U.S. 197, 217 (1938). Section 405(g) thus limits the Court’s
scope of review to determining whether or not the Commissioner’s
findings were supported by substantial evidence. See Mongeur v.
Heckler

722

F.2d

1033,

1038

(2d

Cir.

1983)

(finding

that

a

reviewing Court does not try a benefits case de novo). The Court is
also authorized to review the legal standards employed by the
Commissioner in evaluating plaintiff’s claim.
The Court must “scrutinize the record in its entirety to
determine the reasonableness of the decision reached.” Lynn v.
Schweiker,

565

F.

Supp.

265,

267

(S.D.

Tex.

1983)

(citation

omitted). The Commissioner asserts that his decision was reasonable
and is supported by substantial evidence in the record, and moves
for judgment on the pleadings pursuant to Rule 12(c). Judgment on
the pleadings may be granted under Rule 12(c) where the material
facts are undisputed and where judgment on the merits is possible
merely by considering the contents of the pleadings. Sellers v.
M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988). If, after
a review of the pleadings, the Court is convinced that Plaintiff
has not plead a plausible claim for relief, judgment on the

3

pleadings may be appropriate. See Bell Atlantic v. Twombly, 550
U.S. 544 (2007).
II.

The Commissioner’s Decision
In her decision, the ALJ found that Plaintiff was disabled

within

the

meaning

of

the

Act

from

August

30,

2005

through

September 30, 2008, but that Plaintiff experienced a medical
improvement starting October 1, 2008 and was no longer disabled as
of

that

date.

Administration’s

The

ALJ

five-step

adhered

to

sequential

the

Social

analysis

in

Security

determining

disability benefits. See 20 C.F.R. § 404.1520.1
Here, at Step One, the ALJ found that Plaintiff had not
engaged in substantial gainful activity from August 30, 2005
through

September

30,

2008.

(Transcript

of

Administrative

Proceedings at 12) (“Tr.”). At Steps Two and Three, the ALJ
concluded that Plaintiff’s impairments, which include low back pain
and major depressive disorder, were “severe” within the meaning of
the

Regulations.

However,

the

ALJ

concluded

that

Plaintiff’s

impairments did not meet or equal, either singly or in combination,

1

The analysis requires the Commissioner to determine if the
Plaintiff: “1) is engaged in substantial gainful activity; (2)
suffers from an impairment or combination of impairments that is
“severe”; (3) suffers from an impairment or combination of
impairments that meets or equals a listed impairment; (4) is able
to perform his or her past relevant work; and (5) is able to
perform work existing in significant numbers in the national
economy.” McCrea v. Commr. of Soc. Sec., 370 F.3d 357, 360 (3d
Cir. 2004).

4

any of the impairments listed in Appendix 1, Subpart P. (Tr. at
12).
Under Steps Four and Five, the ALJ concluded that Plaintiff
had the RFC to perform sedentary work but had the following
limitations: she could not lift or carry more than 10 pounds on
occasion and less than 10 pounds frequently, stand and walk for
more than two hours in an eight hour day and could sit for less
than six hours provided she could alternate between sitting and
standing, she was unable to concentrate for an hour at a time, and
could not complete a work week without interference from her
psychotic

symptoms.(Tr.

at

12).

At

Step

Four,

the

ALJ

found

Plaintiff was unable to perform any of her past relevant work as an
assembly line worker. (Tr. at 14). At Step Five, considering
Plaintiff’s age, education, work experience, and RFC, the ALJ
concluded that there were no jobs existing in significant numbers
in the national economy that Plaintiff could perform. (Tr. at 15).
In

finding

that

Plaintiff

was

no

longer

disabled

as

of

October 1, 2008, the ALJ adhered to the eight-step evaluation
process to determine if the disability continues. See 20 C.F.R.
§ 416.994(f). At Step One, the ALJ found that as of October 1,
2008, Plaintiff did not have an impairment or combination of
impairments that meets or medically equals any of the impairments
listed in Appendix 1, Subpart P. (Tr. at 15).

At Step Two, the ALJ

found that there was medical improvement of Plaintiff’s back pain

5

and major depressive disorder.(Id.). At Steps Three and Five, the
ALJ found that Plaintiff’s medical improvement was related to her
ability to work and that the Plaintiff now had a new RFC to perform
the full range of sedentary work as defined in the regulation. (Tr.
at 15, 16). At Steps Six, the ALJ found that because Plaintiff’s
prior employment required a light functional capacity, Plaintiff
was unable to perform her past relevant work with the new RFC. (Tr.
at

16).

At

Step

Seven,

considering

her

age,

education,

work

experience and RFC, the ALJ found that Plaintiff’s disability ended
as she was able to perform a significant number of jobs in the
national economy. (Id.).

Plaintiff contends that the ALJ erred in

finding at Step Three that she experienced a medical improvement in
her depression and back pain sufficient to warrant a reassessment
of her RFC as of October 1, 2008. 20 C.F.R. § 416.994(f)(3).
III. Medical History
A.
Back Pain
There

is

ample

evidence

in

the

record

demonstrating

Plaintiff’s history of back pain. Due to low back and bilateral leg
pain, on December 28, 2005, a bilateral L4-L5 laminectomy and
foraminotomy was performed by Edward Vates, M.D. (Tr. at 289).
Plaintiff continued to experience spinal muscle spasms that induced
pain. (Tr. at 285). Following the surgery, Plaintiff presented to
Rochester General Hospital Physical Therapy from June 26, 2006
through September 19, 2006. (Tr. at 152-161) (Pl. Br. at 3). During
this time, Plaintiff was also treated by David S. Moorthi, M.D.,
6

for pain in the lower left back, left buttock and right calf. (Tr.
at 119, 123, 124). Dr. Moorthi noted that Plaintiff’s back pain was
a 10/10 and that she was unable to tolerate the physical therapy.
(Tr. at 123). On August 7, 2006, and August 23, 2006, Dr. Moorthi
administered

caudal

epidural

injections.

(Tr.

at

121,

122).

Additionally, between the periods of August 16, 2007 and September
30, 2008, Plaintiff presented to the Twig Medical Group for her
back pain, depression, and urinary issues. (Tr. at 308-35).
On January 29, 2007, Plaintiff met with consultative examiner
James Naughten, D.O. (Tr. at 233-236). He noted that when Plaintiff
“performed some of the motions today, she cried and appeared to be
in pain. She was teary eyed.” (Tr. at 234). He noted a bilateral
lumbar sprain and spasm, and joint tenderness. (Tr. at 236).
Dr. Naughten opined that Plaintiff had no limitations seeing,
hearing, talking, sitting, standing, pushing, pulling, or reaching,
but that there were moderate limitations for walking and climbing
stairs. (Id.).
Between April 9, 2008 and November 5, 2008, Plaintiff treated
with Pierre Girgis , M.D., for her back pain. Due to a diagnosis of
lumbar

spondylosis,

lumbar

stenosis,

on

L4-L5

lumbar

August

8,

spondylolisthesis,
2008,

Dr.

Girgis

and

L4-L5

performed

Plaintiff’s second spinal surgery. (Tr. at 353). The operation
involved a re-exploration of the L4 bilateral, a re-exploration of

7

the

L5

bilateral,

and

the

insertion

of

a

biomechanical

intervertebral device at the L4-L5. (Id.).
Plaintiff followed up with Dr. Girgis’s office twice after her
surgery.

On

September

9,

2008,

Plaintiff

met

with

Kathleen,

McIntosh, N.P. (Tr. at 357). Nurse McIntosh noted that Plaintiff
had intermittent pain in the right groin, although the pain was
much improved from before the surgery. (Id.). Nurse McIntosh opined
that Plaintiff had a sturdy gait, good strength in her lower
extremities bilaterally, and that her sensory exam in the lower
extremities was intact. (Id.). Plaintiff was told to begin using
ibuprofen to wean off of the narcotics given to her for the
surgery. (Id.). On 11/5/2008, Plaintiff met with Dr. Girgis. (Tr.
at 358-59). Dr. Girgis noted that Plaintiff was better than before
her surgery, but still had some residual back pain. (Tr. at 358).
Dr. Girgis opined that Plaintiff was “progressing quite well and
very steadily since her lumbar fusion surgery in August.” (Id.). He
told Plaintiff that she could start weaning off the back brace and
that she could take Advil for inflammation or pain issues. (Id.).
On June 2, 2009, Barbara Weber, M.D., completed a medical
source statement. (Tr. at 361-364). It was Dr. Weber’s opinion that
Plaintiff would be limited to lift/and or carry less than 10
pounds, frequently lift and/or carry less than 10 pounds, stand
and/or walk less than 2 hours in an 8-hour workday, and must
periodically alternate sitting and standing to relieve pain or

8

discomfort.
Plaintiff

(Tr.

could

at

361-62).

would

not

Dr.

be

Weber

able

to

further
perform

opined
any

that

postural

activities, and would be limited in her ability to reach in all
directions. (Tr. at 362-63). This medical source statement was not
reviewed by the ALJ but was submitted to the Appeals Council. (Pl.
Br. at 6).
B.

Depression
Plaintiff has a long history of depression. (Tr. at 13).

Starting December 5, 2006, Plaintiff presented to Randy Smart,
M.S., for treatment. (Tr. at 138-150). On December 20, 2006, Smart
completed a psychological assessment of Plaintiff. (Tr. at 140). He
noted that Plaintiff spends most of her day in bed, isolates, and
has little to no contact with others. He noted that her mood was
depressed. (Id.). Smart’s initial treatment plan was to address her
depression and sobriety issues. (Tr. at 142). On January 29, 2007,
Plaintiff met with consultative examiner Christine Ransom, Ph. D.
(Tr. at 229-32). Dr. Ransom opined that Plaintiff should follow
through with psychiatric services for depression and that the
prognosis was fair to good with treatment. (Tr. at 232).
Plaintiff presented to Gregory L. Seeger, M.D., of the Genesee
Mental Health Center. (Tr. at 294). Dr. Seeger diagnosed Plaintiff
with moderate to severe major depression, recurrent with psychotic
features, and placed Plaintiff on medication. (Id.). Dr. Seeger
opined that Plaintiff could not work and that he would support

9

Plaintiff receiving social security benefits. (Id. at 294-95).
Between June 6, 2007 and November 7, 2007, Plaintiff also met with
Bonnie Bullivant, F.N.P. (Tr. at 296-303). Nurse Practitioner
Bullivant also diagnosed Plaintiff with major depression, recurrent
with psychotic features. (Tr. at 296-97).
On February 12, 2008, Dr. Seeger noted that Plaintiff’s mood
had been good as of late. (Tr. at 304). He opined that Plaintiff’s
major depression had resolved, but that psychotic symptoms might
return.

On March 24, 2008, Dr. Seeger noted that her mood had been

good even though she was not on her antidepressants. (Tr. at 306).
The voices she heard had been good as well. (Id.). Dr. Seeger also
noted no signs of depression. Again, he opined that Plaintiff’s
major depression had resolved but that if the psychosis returned,
he would recommend a different medication. (Id.).
On

October

assessment

of

23,

2008,

Plaintiff.

He

Therapist
opined

Smart

that

a

completed
routine

an

job

RFC

might

exacerbate Plaintiff’s psychological problems. (Tr. at 278). Smart
opined that Plaintiff was unable to complete a normal workday and
perform at a consistent pace. ( Tr. at 277). Additionally, he
opined that Plaintiff had a medically/psychologically determinable
impairment which could reasonably be expected to produce her
symptomology. (Tr. at 278).

10

IV. Medical Improvement of Plaintiff’s Disability
This Court finds that the ALJ’s determination that Plaintiff
medically improved was not based on substantial evidence in the
record. Under the medical improvement standard, although a claimant
may have been deemed disabled, that claimant may later be found not
disabled when “there is substantial evidence that the impairment
has improved to such an extent that [Plaintiff] is now able to
work.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). 2 It is
the Commissioner’s burden to establish medical improvement. Robbins
v. Barnhart, 205 F. Supp. 2d 1189, 1201 (D. Kan. 2002).
According to 20 C.F.R. § 404.1594, medical improvement is “any
decrease in the medical severity of your impairment(s) which was
present at the time of the most recent favorable medical decision
that you were disabled or continued to be disabled.” To determine
whether a medical improvement has occurred, the SSA must compare
the “‘the current medical severity of th[e] impairment[ ] ... to
the medical severity of that impairment[ ] at th[e] time’ of the

2

Although the medical improvement standard undoubtedly
applies during Continuing Disability Reviews (“CDR”), the Second
Circuit has not specifically addressed whether this standard
applies in a closed period case. However, other New York district
courts and circuit courts of appeal have found that the standard
does apply in closed period cases. See Carbone v. Astrue, 08-CV2376 NGG, 2010 WL 3398960 (E.D.N.Y. 2010); Chavis, 2010 WL 624039
(citing Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir.2002),
(Shepherd v. Apfel, 184 F.3d 1196, 122 (10th Cir.1999), Chrupcala
v. Heckler, 829 F.2d 1269, 1274 (3rd Cir.1987), Pickett v. Bowen,
833 F.2d 288, 292 (11th Cir.1987)). Thus, this Court will apply
the medical improvement standard to this closed period case.
11

most recent favorable medical decision.” Veino, 312 F.3d at 586-87
(quoting 20 C.F.R. § 404.1594(b)(7)). In a closed period case such
as this, the “time of the most recent favorable medical decision,”
alternately known as the “point of comparison,” starts at the
disability onset date. Chavis v. Astrue, 5:07-CV-0018 LEK VEB, 2010
WL 624039 (N.D.N.Y. 2010).
Implicit in the medical improvement standard is that the
nature of the improvement is not temporary in nature. To determine
if a disability is in temporary remission, the SSA “will be careful
to consider the longitudinal history of the impairments, including
the

occurrence

of

prior

remission,

and

prospects

for

future

worsenings.” 20 C.F.R. § 404.1594(c)(3)(iv). If the Secretary finds
the

remission

to

be

temporary,

then

the

inquiry

stops,

and

claimant's entitlement to disability benefits continues. Carlson v.
Shalala, 841 F. Supp. 1031, 1037 (D. Nev. 1993).

Reviewing the

“longitudinal history” of Plaintiff’s mental impairment, the ALJ
should have found Plaintiff’s improvement to be only a temporary
remission.
For Plaintiff’s mental impairment, the ALJ based her medical
improvement decision solely upon on two treatment notes from
Dr. Seeger on February 12, 2008 and March 24, 2008. (Tr. at 15).
Specifically, the ALJ found medical improvement because “Dr. Seeger
described the claimant’s major depressive disorder as being in

12

remission. The Claimant was off all medication, was in a good mood
and showed no signs of psychosis.” (Id.).
While these notes do indicate some improvement, they cannot be
considered to be substantial evidence of improvement, when compared
to the three years of her recorded treatment for major depression
with psychosis. (Tr. at 304, 306). Prior to these two treatment
dates, Plaintiff had been diagnosed by both Dr. Seeger and Nurse
Bullivant with major depression, recurrent with psychotic features.
(Tr. at 294, 296-97). Although Dr. Seeger opined in the February
and March notes that Plaintiff’s major depression had resolved,
Dr. Seeger “warned [Plaintiff] that the psychotic symptoms might
return” and was prepared to recommend a trial of Geodon3 “if the
psychosis restart[ed].” This is an indication of the prospects for
a future worsening which the regulations require to be taken into
account for temporary remission determinations. See 20 C.F.R.
§ 404.1594

(Tr. at 305,306). Dr. Seeger even noted a “possible

episode last month” in his March note, hinting at a possible
recurrence of the depression. (Id.).
The SSA’s Program Operations Manual System (“POMS”) provides
that certain medical disorders “can give the appearance of medical

3

Geodon is a “prescription medicine called a psychotropic .
. . and can be used to treat symptoms of schizophrenia and acute
manic or mixed episodes associated with bipolar disorder.”
Physicians' Desk Reference, 2730 (64th ed. 2010). The record
demonstrates that Geodon was one of the antidepressant
medications that had been prescribed for Plaintiff’s major
depression. (Tr. at 360).
13

improvement when in fact there has been none.” SSA, POMS § DI
28010.115(B)(2).

According

to

the

SSA,

certain

impairments,

including “many mental impairments,” are subject to temporary
remission. Id.; See Carlson, 841 F. Supp. at 1037-38(it would be
reasonable to conclude that “Plaintiff's partial remission [of
paranoid schizophrenia] between late 1983 and 1990 was temporary
within the meaning of this regulation, and therefore not a “medical
improvement.”).
To determine if a remission is temporary, “all available
evidence” should be taken into consideration. SSA, POMS § DI
28010.115(B)(2)(B).

This includes “treating source evidence and

statements.” (Id.). On October 23, 2008, Therapist Smart, having
previously met with Plaintiff at least six times, completed an RFC
assessment.(Tr. at 277). The ALJ characterized this assessment as
finding “only one moderately severe issue” but that, “the therapist
[found] the claimant’s psychological deficits to be mostly very
slight with only a few moderate impairments.” (Tr. at 16). However,
Therapist Smart also stated that a routine job would exacerbate
Plaintiff’s

symptoms

medically/psychologically

and

that

determinable

she

does

impairment

have
which

a

could

reasonably be expected to produce her symptoms. (Tr. at 278).
Additionally, part of the medical improvement determination is
whether there is improvement in Plaintiff’s symptoms. Plaintiff’s
testimony, taken together with the objective medical evidence in

14

the record, provides substantial evidence that her symptoms did not
improve. During the hearing, Plaintiff stated that she continued to
hear voices, particularly at night. (Tr. at 37). On March 22, 2007,
Plaintiff told Dr. Seeger that she has trouble sleeping at night
and that “[s]he does hear voices. The voices call her name. She
heard the voices for the past ten years.” (Tr. at 294). Although
Plaintiff did not indicate that she heard voices in her subsequent
visits, Nurse Bullivant added a diagnosis of psychosis to the
diagnosis of major depression. (Tr. at 300-301). The Record as a
whole provides substantial evidence that there was no medical
improvement, although Plaintiff’s symptoms were intermittent.
The ALJ found Plaintiff’s testimony not completely credible
because

her

testimony

about

her

ongoing

depression

was

not

consistent with Dr. Seeger’s notes. (Tr. at 17, 304, 306). This
Court disagrees. Although the ALJ retains discretion to evaluate
the credibility of the Plaintiff and “to arrive at an independent
judgment,

in

light

of

medical

findings

and

other

evidence,

regarding the true extent of the pain alleged by the claimant,”
Marcus

v.

Califano,

615

F.2d

23,

27

(2d

Cir.

1979),

that

credibility determination must be based on substantial evidence.
See Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y.1999). Here,
although

Dr.

Seeger’s

notes

indicate

periods

of

intermittent

“voices”, (Tr. at 296-306), Plaintiff did not testify that she
hears the voice every day. At one point, Plaintiff testified that

15

she has “been hearing [the voices] for a long time. They go and
come.” (Tr. at 37). This Court finds that the Plaintiff’s testimony
is not “inconsistent with [Plaintiff’s] own reports to her doctors
and

their

opinions,”

and

as

such,

the

ALJ’s

credibility

determination was not based on substantial evidence in the record.
Additionally, the Court finds that the record does not contain
substantial evidence of medical improvement in Plaintiff’s back
pain. The ALJ found medical improvement because in August 2008,
Plaintiff “underwent a second back surgery and the follow-up
appointments in September and November indicated[ed] that the back
pain was pretty much alleviated with the patient no longer using
narcotic pain killers.” (Tr. at 15).

However, the treatment notes

and other objective medical evidence, as well as Plaintiff’s
testimony, do not indicate that the back pain was resolved.
Dr. Girgis’ most recent note on November 5, 2008, stated that
Plaintiff told him that although she felt better than she did
before the surgery, she still had residual pain. (Tr. at 358).
Additionally, she told Dr. Girgis that she could not lie on her
stomach and sometimes had difficulty with activities secondary to
her pain. (Id.).
A medical source statement submitted by Plaintiff’s primary
care physician on June 2, 2009, opined that due to Plaintiff’s
pain, immobility, and limited gait: Plaintiff was limited to
lifting 10 pounds at any time, could not stand and/or walk less

16

than

two

hours

in

an

eight

hour

work

day,

would

have

to

periodically alternate between sitting and standing, was limited in
her ability to push/pull with her lower extremities, Plaintiff
could never perform any postural activities, and was limited in
reaching in all directions. (Tr. at 361-65).
Furthermore, Plaintiff’s testimony, which was given 15 days
after Dr. Girgis’s last note, is replete with claims of ongoing
back pain. Among other statements, Plaintiff testified that “on a
good day, [her pain] is probably a six, but mostly a 10.” (Tr. at
31). She testified that during the week, she “[m]aybe [has] about
two [good days] out of the week, not too many. [She is] always in
pain.” (Tr. at 31). At one point during the hearing, Plaintiff said
that she “needed to get up right [then]” and asked if she could
“push [the] chair back and just stand for a little bit.” (Id.). The
ALJ

found

Plaintiff’s

testimony

about

her

ongoing

pain

not

completely credible because it was not consistent with her own
reports to her treating doctors and their opinions. (Tr. at 17).
However,

the

reviewing

court

does

not

need

to

defer

to

the

credibility determination of the ALJ if the determination is not
explained and not supported by substantial evidence. See McDonaugh
v. Astrue, 672 F. Supp. 2d 542, 565 (S.D.N.Y. 2009). This Court
finds that the totality of the record lacks substantial evidence to
find that Plaintiff’s testimony was not credible, but rather, the
record substantially supports her allegations of continued pain.

17

In

sum,

this

Court

finds

that

despite

Dr.

Seeger’s

two

treatment notes, the total record supports a finding that there was
a temporary remission in Plaintiff’s mental impairment, not a
medical improvement as required by the applicable regulations. 20
C.F.R. § 416.994(f)(3). Additionally, in light of the consistency
between Plaintiff’s testimony about her back pain and Dr. Girgis’
treatment notes, as well as Plaintiff’s primary care physician’s
medical source statement, this Court finds that the record does not
contain substantial evidence of medical improvement in Plaintiff’s
back pain. Because there was no medical improvement, Plaintiff
continued to be disabled as of October 1, 2008. See 20 C.F.R.
§ 404. 1594.
CONCLUSION
This Court finds that the Commissioner’s decision to deny SSI
benefits between October 1, 2008 and June 4, 2009 was not supported
by

substantial

evidence

in

the

record.

The

record

contains

substantial evidence of a continued disability such that further
evidentiary proceedings would serve no purpose. I therefore grant
judgment on the pleadings in favor of Plaintiff and remand this
matter to the Social Security Administration for the calculation of
benefits.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
______________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

Rochester, New York
January 26, 2012
18