Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK LAVONDA GRAY,
Plaintiff, v. Civil Action No. 3:16-CV-1292 (DEP) NANCY A. BERRYHILL,1 Acting Commissioner
of Social Security,
Defendant. APPEARANCES: OF COUNSEL:
FOR PLAINTIFF:
GORTON LAW FIRM PETER A. GORTON, ESQ.
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089
FOR DEFENDANT:
HON. RICHARD S. HARTUNIAN KRISTINA D. COHN, ESQ.
United States Attorney for the JAMES DEISIR, ESQ.
Northern District of New York Special Assistant U.S. Attorneys P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198 Carolyn Colvin, the former Acting Commissioner of Security, was recently 1 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).
*2 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) and 1383(c)(3), are cross-motions for judgment on the pleadings. 2 Oral argument was conducted in connection with those motions on June 5, 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
ORDERED, as follows: *3 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: June 12, 2017
Syracuse, NY
3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK --------------------------------------------x
LAVONDA GRAY,
Plaintiff,
vs. 3:16-CV-1292
NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Digitally-Recorded Decision held during a Telephone Conference on June 5, 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: LACHMAN, GORTON LAW FIRM
Attorneys at Law P.O. Box 89
1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II
26 Federal Plaza - Room 3904 New York, New York 10278
BY: JAMES DEISIR, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter (In Chambers, Counsel present by telephone.) THE COURT: All right, thank you, I'll have to let that be the last word.
I have before me a request for judicial review of
an adverse determination by the Acting Commissioner pursuant to 42 United States Code Sections 405(g) and 1383(c)(3).
The background is as follows: The plaintiff was
born in December of 1968, currently she is 48 years old, she was 44 years old at the alleged onset of her disability. She stands 5 foot 2 inches in height and weighs 209 pounds. She underwent bariatric weight reduction surgery in December of 2014. The plaintiff lives with her husband, she drives, she is right-handed, she has a GED and some college education, she took some online courses. She's a certified child care provider and a CNA, certified nursing assistant or nurse's assistant. She last worked in or about July or August of 2013. She worked 22 years in a nursing home. She also worked providing child care and in private duty nursing in 2013. She has worked part time as a tax preparer, 2010 through 2013.
Medically, the plaintiff has been diagnosed with
fibromyalgia since 2006. She also carries a potential diagnosis for regional pain syndrome and arthritis. She has borderline diabetes and has diabetic peripheral neuropathy, she has a right shoulder issue. MRI testing revealed a tiny partial tear in the right shoulder. She has in the past complained of chest pain, although medical professionals have not been able to identify any etiology associated with that, and they believe it was probably part and parcel of the fibromyalgia. She has a small disk protrusion at C5-C6 level, with no neural compression or stenosis. She also suffers from major depressive disorder, post-traumatic stress disorder.
She treats with Family and Child Society through
licensed clinical social worker Esther McGurrin every two weeks. She also treats with Lourdes Primary Care, primarily through Family Nurse Practitioner Trichelle Kirchner. The plaintiff also treats with Dr. Dura, Dr. Paul Dura, a rheumatologist. She has record of several emergency room visits to the -- I believe it was the Massena General Hospital. Medications have been provided including Cymbalta, gabapentin, and Tizanidine. Plaintiff reads, uses the computer, folds laundry, and does some cooking although her husband does some of the cooking also since she testified that she drops food.
Procedurally, the plaintiff applied for Title II
benefits on June 10, 2013 and Title XVI SSI payments on November 10, 2013. Both applications allege an onset disability date of May 30, 2013. The hearing was conducted by Administrative Law Judge Marie Greener on April 27, 2015. ALJ Greener issued a decision on June 15, 2015 finding that plaintiff was not disabled at the relevant times. The Social Security Administration Appeals Council made that a final determination of the agency by rejecting plaintiff's request for review on October 13, 2016.
In her decision, ALJ Greener applied the well-known five-step sequential test for determining disability. At step one she found plaintiff had not engaged in substantial gainful activity since May 30, 2013, although noting that there was some work activity during the relevant time period.
At step two, she concluded that plaintiff suffers
from fibromyalgia, herniated nucleus pulposa of the cervical spine without compression, right shoulder tendinitis -- I'm sorry, tendinosus and diabetic peripheral neuropathy, rejecting other conditions as not sufficiently limiting to qualify under step two, including depression and post-traumatic stress disorder.
At step three, the ALJ concluded that plaintiff did not -- her conditions do not meet or medically equal any of the listed presumptively disabling conditions, considering several including 1.04, 11.14.
Then after surveying the record evidence, the ALJ
concluded that plaintiff is capable of performing the full range of light work because she can frequently lift, carry, push, pull 10 pounds occasionally, lift, carry, push, pull 20 pounds and in an eight-hour workday can sit for six hours and stand/walk for six hours with normal breaks.
At step four, the ALJ concluded that with this RFC
plaintiff is not capable of performing her past relevant work as a CNA or nursing assistant.
At step five, the ALJ applied the medical vocational guidelines or the grids, and concluded based on Rule 202.21 that plaintiff was not disabled at the relevant times.
As you know, my task is extremely limited to determining whether correct legal principles were applied and the determination is supported by substantial evidence. It is a highly deferential standard.
Addressing first the listings, counsel has argued
that the claimant suffered from other conditions that should have been recognized as severe at step two. I note that it was plaintiff's burden to establish the limitations associated with her conditions. It is clear that as long as the ALJ concluded that there was at least one severe impairment at step two and continued through the sequential analysis and provided that he or she then considered the other impairments when determining the RFC, then the failure to list them at step two is harmless.
In any event, there was no showing, I reviewed
carefully plaintiff's brief and the evidence cited, there was no showing that plaintiff suffers from additional conditions that provide significant limitations to the ability to perform work functions. Also no showing that plaintiff meets or equals listings, again, it was plaintiff's burden. The Commissioner, the ALJ went through the B criteria and went, and considered the four domains that also apply to 14.09d at page 26, found no marked limitations in the three domain areas and no extended duration compressions.
So again, I note that the mere diagnosis of fibromyalgia does not translate to symptoms. Fibromyalgia comes in various degrees.
Also, the Commissioner properly relied on the treatment notes, plaintiff's testimony, and Dr. Jenouri's consultative exam which can constitute substantial evidence when considering listings and severe impairments.
The RFC, if you discount, leave aside for a moment
Nurse Practitioner Kirchner's opinions and Dr. Dura's opinions, the rest of the RFC is supported by substantial evidence, including the lifting and sitting, standing.
However, I agree with counsel that the ALJ failed to take into consideration the nature of the fibromyalgia and the opinions of both Nurse Practitioner Kirchner and Dr. Dura.
The Second Circuit has noted that fibromyalgia by
its very nature is not always readily susceptible to detection or verification through clinical testing or other objective means. That was recognized in Green-Younger v.
Barnhart , 335 F.3d 99, Second Circuit decision from 2003.
The Seventh Circuit similarly recognized the elusive nature of fibromyalgia in Sarchet v. Chater , 78 F.3d 305, that's Seventh Circuit decision from 1996.
Let's take Nurse Practitioner Kirchner first. Her
opinion was rendered prior to the ALJ's decision. It is clearly inconsistent with the RFC finding. It opines that plaintiff would be required to take unscheduled breaks at 15-minute intervals for approximately one hour. She is clearly not an acceptable medical source; however, under the regulations, her opinions concerning the effects of her diagnosed conditions on her ability to perform functions is relevant and should have been considered and if rejected, ALJ Greener should have explained which parts were being rejected and on what basis.
The real error here is the failure to address Dr. Dura's opinions which admittedly came after the ALJ's decision, but clearly I agree with Mr. Gorton, this changes the landscape considerably. The Second Circuit has recognized in several recent cases the need to consider carefully the opinions that talk about absenteeism, working off task, and the effect on the ability to perform work functions and on the RFC. Most recently in Gavazzi , I believe Mr. Gorton cited that, versus Berryhill, it's found at 2017 WL 1400456. Clearly Dr. Dura is a specialist and a treating source, and it would be of invaluable assistance to the court in making meaningful judicial review to know why it was being rejected, and to go through the factors, if it was being rejected as controlling to go through the factors to determine what weight, if any, it was entitled to. Clearly, more than 15 percent but less than 20 percent off task is something that, if it is controlling, should have been included in the RFC and presented to a vocational expert.
The ALJ recognized that plaintiff would have good days and bad days in her decision. Dr. Dura also opined that she would be absent two days per month. Again, that should have been included and presented to a vocational expert.
So on that basis, I find errors and the determination is not supported by substantial evidence so I will grant judgment on the pleadings to the plaintiff. I don't find persuasive proof of disability and so I will order that the matter be remanded without a directed finding of disability or calculation of benefits only.
Thank you both for excellent presentations. I hope you have a good afternoon.
MR. GORTON: Thank you, your Honor.
MR. DEISIR: Thank you, your Honor.
(Proceedings Adjourned, 2:35 p.m.) *12 C E R T I F I C A T I O N I, JODI L. HIBBARD, RPR, CRR, CSR, Official Court Reporter in and for the United States District Court, Northern District of New York, DO HEREBY CERTIFY that I have listened to and
transcribed the foregoing proceedings and that the foregoing is a true and correct transcript thereof to the best of my ability.
s/Jodi L. Hibbard ________________________________ JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter
[2] 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. 2