Opinion
Civil Action No. 7:16-CV-1520 (DEP)
09-27-2017
JOHN S. MILLER, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
APPEARANCES: FOR PLAINTIFF: OLINSKY LAW GROUP 300 S. State Street Suite 420 Syracuse, NY 13202 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 OF COUNSEL: HOWARD D. OLINSKY, ESQ. MELISSA A. PALMER, ESQ. ELIZABETH D. ROTHSTEIN, ESQ. Special Assistant U.S. Attorney
APPEARANCES: FOR PLAINTIFF: OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, NY 13202 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
OF COUNSEL:
HOWARD D. OLINSKY, ESQ.
MELISSA A. PALMER, ESQ. ELIZABETH D. ROTHSTEIN, ESQ.
Special Assistant U.S. Attorney 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. 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.
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. --------
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:
(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.
/s/_________
David E. Peebles
U.S. Magistrate Judge Dated: September 27, 2017
Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK JOHN S. MILLER, Plaintiff, vs. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. 7:16-CV-1520 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. APPEARANCES (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 (315) 234-8547 (In Chambers, Counsel present by telephone.)
THE COURT: All right, I'll have to let that be the last word.
So I have before me a request for judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Section 405(g) and 1383(c)(3).
The background is as follows: The plaintiff was born in June of 1966, is currently 51 years old, he was 48 years old at the time of the hearing and 46 years old at the time of his application for benefits. He is 5-foot-7 or 5-foot-8 inches in height, and he's right-hand dominant. He is married, has no children under 18, lives in an apartment in Watertown. He is a high school graduate and has some specific training in both auto mechanics, small engines, and culinary. He went to the Culinary Institute of America. He last worked in 2006, answering questions in a call center.
He suffers from chronic back pain and in the past, there's reference in 2009 to neck pain as well. He also suffers from rosacea, hypertension, hyperlipidemia, and claims to also suffer from depression and post-traumatic stress disorder although I did not find reference to treatment for any mental conditions in the record.
Plaintiff first saw Dr. Laverne VanDeWall for his back, was referred to Dr. Bhupinder Bolla, a pain specialist. He was later referred to Dr. Richard DiStefano of Syracuse Orthopedic Specialists or SOS, an orthopedic surgeon, in November 2003 -- 13, I'm sorry, who determined that plaintiff was not a suitable candidate for surgery. Plaintiff also began treating with Dr. Hardik Patel of the Evans Mills clinic in March of 2014 for chronic lumbago and depressive -- DDD, degenerative disk disease. There is, there was an MRI, or magnetic resonance image, testing performed on March 27, 2013. That appears at page 165 of the record. That reflects diffuse disk bulges at L3-4 and L4-5 with minimal thecal sac compression, diffuse disk bulge in small right paracentral disk extrusion at the L5-S1 level with minimal compression of the thecal sac and right S1 nerve as it exits the thecal sac. The disk extrusion is increased in size compared to the previous study. There is no other significant change.
In terms of medications, at various times plaintiff has been prescribed tramadol, Lyrica, Percocet, Flexeril, Medrol, Neurontin, Vicodin, Cymbalta, Tylenol 4. Also has undergone some physical therapy and has a TENS unit, although he apparently does not use it. Plaintiff testified that he takes extra medications at times and the record supports that, that he has doubled up on his dosage on occasion and run out of medications. He overdosed on tramadol in June of 2014 and ended up in an emergency room. He has been prescribed a cane. He states that he has difficulty standing and walking. He suffers from leg pain radiating down his leg and numbness, low back pain. He, as counsel indicated, he takes care of his wife and does chores around the house.
Procedurally, plaintiff applied for Supplemental Security Income or SSI benefits on December 18, 2012 alleging a disability onset date of June 2, 2006. On September 22, 2014, a hearing was conducted by Administrative Law Judge John Lischak. On April 2, 2015, ALJ Lischak issued a decision finding that plaintiff was not disabled at the relevant times and therefore ineligible for benefits. That became a final determination of the agency on October 20, 2016, when plaintiff's request to the Social Security Administration Appeals Council for judicial -- for review of that determination was denied.
In terms of the decision, ALJ Lischak applied the familiar five-step test for determining disability. At step one, concluded that plaintiff was -- had not engaged in substantial gainful activity since the date of his application on December 18, 2012.
At step two, he concluded that the plaintiff suffers from a back disorder and neuropathy affecting the right hand and arm.
At step three he concluded that the conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, based in large part upon Exhibit 9F, interrogatory responses from Dr. Brahms.
After surveying the medical evidence, ALJ Lischak concluded that plaintiff retains the residual functional capacity or RFC to perform light work with very specific additional limitations that are set out on page 20 of the record.
At step four, the administrative law judge concluded that plaintiff is capable of performing his past relevant work as a teleserve representative in a call center, but went on to find alternatively at step five, that based upon the ability to perform the RFC determined and with the assistance of a vocational expert, concluded that plaintiff could perform in the positions of an addresser, a document preparer, and an order clerk, all of which were sedentary positions, SVP rating of 2. He therefore concluded that plaintiff was not disabled at the relevant times.
My role is limited to determining whether ALJ Lischak's determination is supported by substantial evidence and correct legal principles were applied. It is a fairly deferential standard.
There's no question that complaints of pain represent important elements in a disability determination. The case -- one of the cases cited by the plaintiff, Rockwood, indicates that and I don't think that's a very controversial finding. Rockwood v. Astrue. So plaintiff's claims are entitled to weight, if they're objectively supported. Here, there is an MRI finding that supports the conclusion which ALJ Lischak did make that plaintiff suffers from a condition that could reasonably be an objectively determinable condition that reasonably could cause the pain that he claims to experience so it boils down then to the evaluation of plaintiff's subjective claims of pain.
So the determination of pain is accomplished pursuant to 20 CFR Section 416.929, and the Social Security Ruling that has now been superseded that was cited by plaintiff and was in force at the relevant times, 96-7P. It prescribes the two-step process which was undertaken here, but it requires the consideration of factors when a plaintiff's allegations of pain are not fully credited. The factors include daily activities, location, duration, frequency, and intensity of pain or other symptoms, precipitating and aggravating factors, type, dosage, effectiveness, and side effects of any medication taken to alleviate the pain, treatment other than medication received or -- for relief for the pain or other symptoms. And both of those demonstrate the importance of, as do cases including from the Second Circuit, the importance of the administrative law judge laying out reasoning so that effective judicial review can be performed.
The case that struck me as very helpful was Lewis v. Apfel, 62 F.Supp.2d 648, shows how important it is to -- for the ALJ to consider all available evidence and state specific reasons for a credibility determination sufficient to permit meaningful review. As the Commissioner argues, if the rationale can be gleaned from the ALJ's decision, the four corners of that decision, then remand is not required. Cichocki and Mongur v. Heckler point that out. And in Cichocki, it was noted that there doesn't need to be a slavish recitation of the seven factors. However, the ALJ does need to provide a basis for meaningful review and to actually consider those factors.
The credibility analysis which appears at pages 21 and 22 primarily of the record is woefully deficient. With due respect to ALJ Lischak who I know and respect, it doesn't discuss daily activities, it doesn't have any meaningful discussion as to medications, and the efforts that the plaintiff made to secure relief from his claimed pain. It doesn't -- it doesn't discuss the factors to a sufficient degree that I think I can make a meaningful determination that he has complied with that Social Security Ruling and the regulations.
So, on the other hand, I don't find that there is persuasive evidence of disability. I recognize the arguments raised by the Commissioner but that kind of post hoc analysis is not sufficient. So, and citing Morrow, King v. Berryhill, 2017 WL 1753442 which I find to be extremely similar to this case, I will grant judgment on the pleadings to the plaintiff without a directed finding of disability, and remand the matter to the agency for further consideration.
Thank you both for excellent presentations and I hope you have a good afternoon.
MS. PALMER: Thank you, your Honor.
MS. ROTHSTEIN: Thank you, your Honor.
(Proceedings Adjourned, 2:23 p.m.)
CERTIFICATE OF OFFICIAL REPORTER
I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, DO HEREBY CERTIFY that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.
Dated this 25th day of September, 2017.
/S/ JODI L. HIBBARD
JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter