Smith v. Saul

• Court: District Court, N.D. New York
• Decided: February 6, 2020
• Docket: 3:19-cv-00177
• Status: Unknown

Opinion

FOR THE NORTHERN DISTRICT OF NEW YORK

JUSTIN S., Plaintiff, v. Civil Action No. 3:19-CV-0177 (DEP)

ANDREW M. SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 E. Main Street Endicott, NY 13761-0089

FOR DEFENDANT

HON. GRANT C. JAQUITH JOSHUA L. KERSHNER, ESQ. United States Attorney for the Special Assistant U.S. Attorney Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

1 Plaintiff=s complaint named Nancy A. Berryhill, in her capacity as the Acting Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew M. Saul took office as Social Security Commissioner. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. ' 405(g). 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 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 February 4, 2020, 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 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:

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. 1) Plaintiff's motion for judgment on the pleadings is GRANTED. 2) |The 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 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 Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) and closing this case.

U.S. Magistrate Judge

Dated: February 6, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JUSTIN S.,

Plaintiff,

vs. 5:19-CV-177

NANCY A. BERRYHILL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on February 4, 2020, 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 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: JOSHUA L. KERSHNER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (In Chambers, Counsel present by telephone.) 2 THE COURT: Plaintiff has commenced this proceeding 3 seeking judicial review of an adverse determination by the 4 Commissioner pursuant to 42 United States Code Sections 5 405(g) and 1383(c)(3). 6 The background is as follows: The plaintiff was 7 born in May of 1983, he is currently 36 years old. The 8 plaintiff lives in Lisle, New York. He also sees -- he's 9 alone but he sees his daughter, his eight-year-old daughter, 10 she was eight in November of 2017, every other week. He is 11 6 feet tall, weighs between 155 and 165 pounds although at 12 one point he was as low as 120 pounds, that's at 80, page 80 13 of the administrative transcript. Plaintiff is a high school 14 graduate, has no further education. He drives and owns a 15 car. 16 Plaintiff, his past work includes, as a pizza 17 delivery person, a dishwasher and kitchen helper, a landscape 18 worker, and a grocery store stock clerk. Plaintiff has been 19 on SSI or Supplemental Security Income payments since 20 October 16, 2008 as a result of his diagnosis of Crohn's 21 disease, both large and small bowel. He was diagnosed in 22 October of 2008. His symptoms include bleeding, diarrhea, 23 abdominal pain, nausea, weight loss, and fatigue. Plaintiff 24 treats with Binghamton Gastroenterology Associates; Dr. Mark 25 Shumeyko is his primary point of contact there. He has been 1 in the past prescribed Prednisone although he was weaned off 2 of that particular medication in 2010. He undergoes Remicade 3 infusions every eight weeks. He has also been prescribed 4 Flexeril, omeprazole, and Lialda. The Crohn's disease by all 5 accounts is somewhat stable but susceptible of flare-ups, at 6 least according to the plaintiff and some of the treatment 7 records. 8 As was discussed during argument, in May of 2016 9 plaintiff underwent a colonoscopy. One of the findings as a 10 result of that colonoscopy was that the Crohn's appears 11 completely quiescent at this time. That appears at page 322 12 and 377 of the record. 13 In terms of activities of daily living, plaintiff 14 is able to cook, clean, watch television, watch his daughter, 15 mow the lawn if necessary, shop, he visits family and he 16 listens to the radio. 17 Procedurally, plaintiff applied for Title II and 18 Title XVI benefits on October 16, 2008, alleging a disability 19 onset date of May 31, 2006. He received an unfavorable 20 decision on September 27, 2010 from Administrative Law Judge 21 Thomas Tielens in connection with that application. The 22 Social Security Administration Appeals Council remanded the 23 matter on February 3, 2012. 24 On August 17, 2012, Administrative Law Judge John 25 Ramos issued a decision awarding SSI benefits only with an 1 onset date finding of October 16, 2008. He did not award 2 Title II benefits because apparently it was after the date of 3 last-insured status. 4 On February 7, 2017, an agency determination was 5 made that plaintiff was no longer disabled. On June 27, 6 2017, that finding was upheld on request for reconsideration. 7 On November 16, 2017, Administrative Law Judge Jeremy Eldred 8 conducted a hearing concerning the finding of medical 9 improvement. He subsequently issued a decision on January 8, 10 2018 finding that plaintiff had undergone sufficient medical 11 improvement and was capable of performing available work in 12 the national economy. 13 (Telephone connection disrupted and resumed.) 14 THE COURT: So I went through the procedural 15 history and I was about to recount Judge Eldred's decision 16 from November 16, 2017, except that I have the wrong date. 17 I'm sorry, that was the date of the hearing. January 8, 18 2018. I note that the Social Security Administration Appeals 19 Council denied request for review of that determination on 20 December 19, 2018. In his decision, ALJ Eldred focused on 21 medical improvement, applied what he determined was the 22 appropriate seven-step test for confronting a claim of 23 medical improvement. He -- are you still there, Mr. Gorton? 24 MR. GORTON: I am here. 25 THE COURT: Okay. Mr. Kershner, are you still 1 there? 2 MR. KERSHNER: I am, your Honor. 3 THE COURT: All right, I heard ringing in the 4 background, I was afraid we'd lost someone. 5 He found that the point of comparison for 6 considering improvement was August 17, 2012. He determined 7 that plaintiff does suffer, continue to suffer from a severe 8 impairment, namely Crohn's disease. He concluded that it did 9 not meet or medically equal any of the listed presumptively 10 disabling conditions set forth in the regulations. He found 11 medical improvement had occurred as of February 7, 2017. 12 After considering the medical evidence in the record, ALJ 13 Eldred concluded that plaintiff retains the residual 14 functional capacity, or RFC, to perform a full range of light 15 work without any nonexertional limitations. Based on that 16 finding, he concluded that plaintiff, although not able to 17 perform his past relevant work, based on the Medical 18 Vocational Guidelines and specifically Grid Rule 202.20, a 19 finding of no disability was directed and therefore plaintiff 20 was not disabled at the relevant times. 21 As you know, my task is limited and the standard 22 which I apply is extremely deferential. I must determine 23 whether correct legal principles were applied and the 24 determination is supported by substantial evidence. It is -- 25 substantial evidence is defined as such relevant evidence as 1 a reasonable mind might accept as adequate to support a 2 conclusion. It's a very deferential standard, more stringent 3 even than clearly erroneous. 4 Under Brault v. Social Security Administration, 683 5 F.3d 443, a Second Circuit decision from 2012, facts 6 determined by an administrative law judge can be rejected 7 only if a reasonable fact finder would have to conclude 8 otherwise. 9 In this case, plaintiff raises several contentions. 10 He argues that plaintiff -- the ALJ, I'm sorry, failed to 11 assess the frequency and duration of needed bathroom breaks 12 resulting from his Crohn's disease, failed to give 13 controlling weight to the opinions of Dr. Mark Shumeyko, 14 plaintiff's treating gastroenterologist, and improperly 15 substituted her lay opinion -- his lay opinion for the 16 uncontradicted medical opinions in the record. 17 Plaintiff also questions reliance on the Grids in 18 light of the nonexertional limitations resulting from 19 plaintiff's Crohn's disease. 20 The medical improvement is governed by both statute 21 and regulation. When a finding of disability results in the 22 granting of benefits, under the Social Security Act the 23 Commissioner is statutorily required to engage in a 24 continuing periodic review of a claimant's condition. If, 25 based on that review, the Commissioner determines that the 1 disabling condition has subsided, does not exist, or is not 2 disabling, he may order termination of the benefits. That's 3 under 42 United States Code Sections 421 and 423. 4 In making the review to determine whether cessation 5 of benefits is warranted, the Commissioner must examine the 6 plaintiff's current condition, a term ordinarily requiring 7 assessment of the condition at the time of the hearing. 8 Generally speaking, under Section 423(f) and the 9 corresponding regulations, termination of benefits is 10 appropriate if there's been medical improvement related to 11 the claimant's ability to work. Where the claimant's medical 12 condition improves to the extent that he or she can engage in 13 substantial gainful activity, the party will no longer be 14 entitled to benefits under the Act. 15 In order to support the termination of benefits, it 16 is the Commissioner who must meet the burden by a showing of 17 substantial evidence that a medical improvement has taken 18 place in a claimant's ability to perform work activity. 19 Medical improvement is defined by both statute and 20 regulation, specifically 20 CFR Section 404.1594, and it is 21 defined as any decrease in the medical severity of an 22 impairment. To find medical improvement, the Commissioner 23 must compare the prior and current medical evidence to 24 determine whether there have been any changes in the signs, 25 symptoms, and laboratory findings associated with the 1 claimant's impairment. 2 If there has been medical improvement, the 3 Commissioner must also, as plaintiff's counsel acknowledges, 4 focus on whether the improvement is related to the claimant's 5 ability to perform work. 20 CFR Section 404.1594. A medical 6 improvement will be related to the claimant's ability to work 7 where it results in a decrease in the severity of the 8 impairment present at the time of the most favorable recent 9 medical decision, and an increase in the claimant's 10 functional capacity to perform basic work activities defined 11 to include the ability to do most jobs such as walking, 12 standing, pushing, pulling, reaching, carrying, hearing, 13 speaking, remembering, and using judgment. Even if and where 14 medical improvement related to a claimant's ability to work 15 has occurred, in most cases the Commissioner must also show 16 the claimant is able to engage in substantial gainful 17 activity before he will be found no longer disabled. 18 The standard for finding medical improvement has 19 been outlined including in my colleague Chief Magistrate 20 Judge Andrew T. Baxter's decision in Michael M. v. 21 Commissioner of Social Security, reported at -- well, it's 22 not reported but it can be found at 2019 WL 530801. 23 There's no question that the administrative law 24 judge in this case applied the correct test; the real 25 conundrum is whether the resulting finding was supported. 1 In this case it boils down to an analysis of the 2 frequency and duration of the need for bathroom breaks. 3 There is obviously no limitation in that regard in the 4 administrative law judge's residual functional capacity 5 finding. In this case, there are several medical opinions in 6 the record. Plaintiff himself testified to his condition and 7 his need for frequent bathroom breaks. His treating 8 physician, Dr. Shumeyko, on September 27, 2017 opined at 9 page 566 that the condition could interfere with plaintiff's 10 ability to attend work on a regular basis. Possibly when 11 flaring, he may need urgent bathroom access and it also would 12 entail unscheduled breaks possibly when the disease flares, 13 although last year it showed fairly good control. 14 Dr. Jenouri, the consultative examiner, who 15 examined the plaintiff on November 4, 2016, concluded at 16 page 357, "The claimant is restricted due to marked schedule 17 disruptions due to frequent bowel movements. Otherwise no 18 physical limitations." 19 The findings of the agency nonexamining consultant, 20 Dr. Putcha, in December of 2016 makes the following notation 21 at page 363: "Due to frequency of bathroom use due to dx 22 Crohn's, claimant should be near to restroom." 23 There is also an opinion from a treating 24 physician's assistant, Susan Anderson, September 25, 2017 at 25 page 581. She also finds that regular attendance would be 1 impaired due to plaintiff's Crohn's during flares, and that 2 the patient would sometimes need to take unscheduled restroom 3 breaks. Again at page 581. 4 So all of the medical evidence in the record 5 suggests, at least during flare-ups, that there will be a 6 need for frequent medical -- restroom, I'm sorry, breaks. 7 The Commissioner cites to a colonoscopy that 8 occurred on May 20, 2016, page 322, that indicates that the 9 Crohn's is completely quiescent at this time. I note, 10 however, that that procedure predates all of the opinions 11 that I just gave, including Dr. Putcha and Dr. Jenouri. 12 There's no question that there should have been a discussion 13 of the need for plaintiff to undergo bathroom breaks due to 14 his -- due to his condition. 15 The matter was addressed by the court in Lowe v. 16 Colvin, 2016 WL 624922, that's from the Western District of 17 New York, Senior District Judge Michael A. Telesca, in 2016 18 requiring -- noting that an ALJ failed in that case to make 19 specific findings regarding the frequency and length of 20 anticipated bathroom breaks. Also similarly in Spaulding v. 21 Astrue, 702 F.Supp.2d 983 from the Northern District of 22 Illinois, 2010, making a similar finding. 23 It may well be that plaintiff's condition is 24 properly characterized as episodic. He testified to 25 flare-ups every month after infusions, although at page 51 he 1 could have meant every two months which is when he receives 2 infusions. He keeps underwear in his car. He testified to 3 what occurs during an episode. The fact that it's episodic 4 doesn't necessarily mean that it is not disabling. Beck v. 5 Colvin, 2013 WL 5533571, it is from the Western District of 6 New York, 2013. There's no question that the exertional 7 finding of light work is supported, that's certainly not in 8 issue. The issue -- and there's no question that there has 9 been some improvement in plaintiff's condition. The real 10 issue is bathroom breaks. 11 ALJ Ramos in his RFC included that he would require 12 being regularly provided one unscheduled break per workday, 13 five to ten minutes in duration with immediate access to a 14 bathroom and that supported his finding of disability based 15 on a vocational expert's testimony at 68, 69. ALJ Eldred 16 doesn't make the same finding or explanation. The vocational 17 expert at page 57 did testify that an employer would only 18 tolerate unscheduled breaks for a day or two here and there, 19 two to four extra breaks would not be tolerated, 10 percent 20 off task would not be tolerated and eight absences per year 21 would not be tolerated. 22 In light of the fact that it was defendant's burden 23 to show medical improvement and the ability to perform work 24 functions, I find that that was not met, that the ALJ should 25 have addressed the need for bathroom breaks and the need to 1 be near a bathroom. There should be a remand with careful 2 consideration of the need for plaintiff during flare-ups to 3 have bathroom breaks, how often, with what frequency, with 4 what duration. So I don't find persuasive evidence of 5 disability, but I will grant judgment on the pleadings to the 6 plaintiff and remand the matter to the agency for further 7 consideration consistent with this opinion. 8 Thank you both for excellent, excellent 9 presentations, I hope you have a good day. 10 MR. GORTON: Thank you, your Honor, sorry for the 11 phone stuff, I don't know what was going on. 12 THE COURT: Okay, all right, take care. 13 (Proceedings Adjourned, 3:37 p.m.) 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 5th day of February, 2020. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25