Smith v. Saul

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

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:

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

JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter