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Solsbee v. Astrue

August 23, 2010


The opinion of the court was delivered by: Michael A. Telesca United States District Judge



Plaintiff Yvette J. Solsbee ("Plaintiff") brings this action pursuant to 42 U.S.C. §405(g), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB"). Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") Robert T. Harvey, which denied her application for benefits, was not supported by substantial evidence and contrary to applicable legal standards.

The Commissioner moves for judgment on the pleadings pursuant to the Federal Rules of Civil Procedure 12(c)("Rule 12(c)") on the grounds that the ALJ's decision is supported by substantial evidence in the record and therefore should be affirmed. Plaintiff opposes the Commissioner's motion and cross-moves for judgment on the pleadings, on the grounds that the ALJ's decision contained legal errors and was not supported by substantial evidence in the record.


Plaintiff, who was 42 years old at the time and a former retail sale representative for Kraft Foods Global, Inc., filed an application for DIB on October 18, 2004. (Tr.*fn1 at 85, 88). Plaintiff alleged that she became unable to work on December 31, 2002, due to rheumatoid arthritis, Crohn's disease, cervical facet syndrome with right brachial plexus irritation, right suprascapular syndrome and myofacial pain syndrome. (Tr. at 87, 96). The application was initially denied on April 27, 2005 and Plaintiff filed a timely request for an administrative hearing. (Tr. at 57, 61).

Plaintiff appeared, with counsel, and testified at the hearing on August 9, 2007 in Jamestown, New York, before ALJ, Robert T. Harvey. (Tr. at 575-612). In a decision dated September 7, 2007, the ALJ found that Plaintiff was not disabled within the meaning of the Social Security Act ("the Act"). (Tr. at 26-32). The ALJ's decision became the final decision of the Commissioner on March 17, 2009, when the Appeals Council denied further review. (Tr. at 6-10). On April 13, 2009, Plaintiff timely filed this action.


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 DIB. Additionally, the section directs that when considering such claims, the court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Id. 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, 229 (1938). Section 405(g) thus limits the court's scope of review to determining whether or not the Commissioner's findings are supported by substantial evidence. See Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (finding that the 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 the 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). Consequently, the Commissioner moves for an order to affirm the decision pursuant to sentence four of 42 U.S.C. 405(g), which provides "[t]he court shall have the power to enter upon the pleadings and transcript of the record, a judgment affirming, modifying or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for rehearing." A remand to the Commissioner for further development of the evidence under 42 U.S.C. 405(g) is appropriate when "there are gaps in the administrative record or the ALJ has applied an improper legal standard." Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999). However, "where the existing Record contains persuasive proof of disability and a remand for further evidentiary proceedings would serve no further purpose, a remand for calculation of benefits is appropriate." White v. Comm. of Soc. Sec., 302 F.Supp.2d 170, 174 (W.D.N.Y. 2004). The goal of this policy is "to shorten the often painfully slow process by which disability determinations are made." Id. I find that (1) the ALJ's decision was not supported by substantial evidence, and (2) the record contains substantial evidence of disability such that further evidentiary proceedings would serve no purpose. Accordingly, I grant Plaintiff's motion for judgment on the pleadings.

II. The Commissioner's Decision to Deny the Plaintiff Benefits was Not Supported by Substantial Evidence in the Record

In his decision, the ALJ applied the Social Security Administration's five-step sequential analysis.*fn2 See 20 C.F.R. § 404.1520. At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since the alleged onset of her disability on December 30, 2002. (Tr. 28). The ALJ then determined at step two that Plaintiff's fibromyalgia was a severe impairment. However, the ALJ determined that Plaintiff's Chron's disease, sleep apnea, and adjustment disorder with depression were not severe impairments. (Tr. 28-29). Furthermore, the ALJ concluded that these impairments did not meet or equal, either singly or in combination, any of the impairments listed in Appendix 1, Subpart P of Regulations No. 4. Id.

At step four, the ALJ found that Plaintiff retained a residual functional capacity ("RFC") which allowed her to perform sedentary work with additional occasional limitations. (Tr. 29-31). The ALJ opined that Plaintiff was precluded from performing her past relevant work as a sales representative. (Tr. 31). However, based on SSR 85-15 and 96-9p, the ALJ also concluded that Plaintiff's additional limitations had "little or no effect on the occupational base of unskilled sedentary work." (Tr. 32). At step five, the ALJ improperly relied on the Medical-Vocational Guidelines ("the Grids") to determine whether Plaintiff could perform other work. Given Plaintiff's age, education, previous work experience and her RFC, the ALJ concluded that she was not disabled. I find that the ALJ failed to properly analyze the medical evidence in the record, incorrectly assessed Plaintiff's credibility, misapplied legal standards, and erred in not contacting a vocational expert. There is substantial evidence in the record to support a finding of disability.

III. The ALJ Mischaracterized Plaintiff's Testimony

The ALJ determined that claimant's statements concerning the intensity, persistence and limiting effects of her symptoms were generally credible,*fn3 "but not to the extent alleged." (Tr. 30). The ALJ found Plaintiff's symptoms inconsistent with her activities of daily living. (Tr. 31). The ALJ noted that Plaintiff's daily activities included cleaning, cooking, loading the dishwasher, doing laundry, sweeping, mopping, shopping, and driving a car. (Tr. 30).

This finding is inconsistent with Plaintiff's testimony at the administrative hearing. Plaintiff testified that she could not make beds, vacuum, take out the trash, do yard work, or perform hobbies. (Tr. 598-99). She testified, "I used to be very meticulous on my house and it's basically 'gone to the dogs'," and that she did "maybe a load every four days" of laundry. (Tr. 598). She stated that "I Swiffer spots up off the kitchen floor, but that's about it" and that she had "friends and family that help" with other chores. (Tr. 599). The ALJ, however, concluded that Plaintiff was able to mop and sweep. (Tr. 30).

Plaintiff claimed that she could "sometimes" bathe and dress herself without a problem, and that she had difficulty getting out of the bathtub. (Tr. 606). The ALJ, again, mischaracterizes this testimony to Plaintiff's disadvantage by simply stating that she "is able to bath/dress herself" without indicating any limitations. Plaintiff testified that "some days I can't even get out of my bed myself. The phone's right beside me. I have to call my mother or a family member or friend." (Tr. 607).

Plaintiff also testified that shopping was difficult for her and that she needed a friend or family member to carry and unload groceries. Additionally, Plaintiff stated that she used to have two people living with her, but now had to perform her daily activities on her own. (Tr. 607-8). "The mere fact that a plaintiff has carried on certain daily activities, such as grocery shopping, driving a car, or limited walking for exercise does not in any way detract from [a claimant's] credibility as to [his or her] overall disability." F. Vertigan v. Halter, 260 F.3d 1044, 1050 (9th Cir. 2001).

Plaintiff complained of constant knee, back, and neck pain. (Tr. 588). She testified that her arms had the tendency to go numb and that problems with her hands would cause her to drop things.

(Tr. 588). During the course of the hearing the ALJ asked Plaintiff why her hand was shaking and she responded that she was in a lot of pain. (Tr. 579). She also testified that she had tremors, which objective medical evidence supports. (Tr. 605, 167-69). Overall, Plaintiff rated her pain (on a scale where 10 was the most severe), as being 6 on average, and 9 and a half on bad days. (Tr. 603).

Plaintiff's testimony regarding the extent of her limitations was not included in her RFC assessment. The ALJ determined that Plaintiff had the RFC to lift and carry 10 pounds, sit 6 hours in an 8 hour day, and stand and walk 2 hours in an 8 hour day. (Tr. 29). However, Plaintiff stated that she could not stand for more than 20 minutes or sit for more than 40 minutes. (Tr. 601). She testified that she could walk about half a city block before her knees gave out. (Tr. 600). Plaintiff said that she could not reach her arms over her head, hold her arms straight out at shoulder level, or push or pull without pain. (Tr. 601). She testified that a gallon of milk was the amount that she could lift. (Tr.600). The ALJ determined that Plaintiff had "occasional limitations in bending, climbing, stooping, squatting, kneeling, balancing, crawling, and pushing/pulling with the upper extremities." (Tr. 28). However, Plaintiff testified that she could not do any of these things without a problem. (Tr. 600-1). Additionally, she stated that she had difficulty manipulating buttons, zippers, and jars, and would occasionally have a problem picking up small objects off the table.

(Tr. 602). Consultative Examiner, Dr. Jonathan Wahl opined that Plaintiff had moderate to marked restrictions in activities that would involve forward elevation, abduction/adduction of her right shoulder, reaching, prolonged standing, lifting, carrying, and bending at the waist. (Tr. 264). Despite Plaintiff's testimony and medical evidence, the ALJ classified these limitations as "occasional" and did not mention her problems with manual dexterity. An ALJ cannot "ignore an entire line of evidence that is contrary to ...

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