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Pessagno v. Colvin

United States District Court, Second Circuit

July 30, 2013

CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.


HON. RICHARD S. HARTUNIAN, United States Attorney, AMANDA J. LOCKSHIN, ESQ. Special Assistant U.S. Attorney, Syracuse, NY, for Defendant.


DAVID E. PEEBLES, Magistrate Judge.

Plaintiff Jennifer Kathleen Pessagno, who suffers from both mental impairments, including affective and anxiety disorders, and a lumbar back physical condition, has commenced this proceeding pursuant to 42 U.S.C. ยง 405(g) seeking judicial review of a determination by the Commissioner of Social Security denying her application for disability insurance benefits ("DIB") and supplemental security income ("SSI") payments. In support of her challenge to that determination, plaintiff maintains that, although the administrative law judge ("ALJ") assigned to hear and determine the matter properly credited the findings of her treating pain specialist concerning her exertional limitations, when assessing plaintiff's ability to perform work-related functions he overlooked the physician's conclusions that, due to her pain, she would be moderately limited in concentration and the ability to sustain an appropriate work pace. Plaintiff argues that those limitations significantly reduce the range of jobs she is capable of performing, and that it was therefore inappropriate for the ALJ to rely upon the medical vocational guidelines set forth in the Commissioner's regulations ("grids"), 20 C.F.R. Pt. 404, Subpt. P, App. 2, to determine the issue of disability instead of eliciting the opinions of a vocational expert concerning her ability to perform available work.

For the reasons set forth below, I conclude that the ALJ's failure either to reject the portion of the treating physician's medical source statement regarding the effects of her pain upon plaintiff's ability to concentrate and work at an appropriate pace, and properly to explain his rationale for doing so, or to include the limitation in his residual functional capacity ("RFC") finding, constituted error and calls into question his use of the grids to determine the issue of disability. Accordingly, I recommend that the Commissioner's determination be vacated, and the matter remanded to the agency for further consideration.


Plaintiff was born in January 1974; she is five feet two and one-half inches tall, and weighs 163 pounds. Administrative Transcript at 64, 134, 138, 154.[2] Plaintiff lives in Binghamton, New York, together with her husband and brother-in-law. Id. at 64, 79. She possesses an associates degree from the Elmira Business Institute, and, at the time of the hearing in this matter, was taking on-line courses for between three and four hours each day in the field of medical transcription. Id. at 64, 81.

Plaintiff was last employed in April 2009 as an inventory specialist, a job that did not require plaintiff to lift anything, but did necessitate that she stand for more than one-half of each work day. AT 64-65, 160. Prior to that, plaintiff was employed in a variety of positions, most of which were of short duration. Id. at 65-69, 160-61.

Plaintiff suffers from both mental and physical impairments.[3] She has been diagnosed as suffering from bipolar disorder, depression, anxiety disorder, and post-traumatic stress disorder. AT 41, 75-76, 261. Plaintiff receives treatment for those conditions from Dr. Mariano Apacible, a staff psychiatrist, and Jill Van Pelt, a licensed clinical social worker, both of whom are employed at Broome County Community Mental Health Services. Id. at 316-26. Plaintiff has been prescribed Fluoxetine, Lamotrigine, Abilify, Prozac and Lexapro for her mental health conditions. Id. at 79, 205, 316-26.

Plaintiff also suffers from scoliosis and the presence of some osteoarthritis in her lower back. Id. at 69-70. Magnetic resonance imaging ("MRI") testing, conducted on April 9, 2010, of plaintiff's lumbar spine revealed "[v]ery small left posterolateral L2-3 and L4-5 disc protrusions[, ]" but with "[n]o evidence of neural compression." Id. at 312. To address that condition plaintiff has treated with Dr. Xiao Fang, a pain specialist, who has prescribed the use of a TENS unit, [4] Ibuprofin, aquatic therapy and physical therapy.[5] Id. at 308-311.


A. Proceedings Before the Agency

Plaintiff filed applications for SSI and DIB benefits with the agency in June 2009, alleging that she has been disabled since January 1, 2009. AT 54, 86-87, 134-39.[6] On August 24, 2010, a hearing was conducted before ALJ John P. Ramos to address plaintiff's applications for benefits. AT 61-84. Following that hearing, at which plaintiff was represented by legal counsel, ALJ Ramos issued a decision on September 17, 2010, in which, after conducting a de novo review of the available evidence, he concluded that plaintiff was not disabled at the relevant times, and thus did not qualify for the benefits requested. AT 36-52.

In his decision, ALJ Ramos applied the familiar, five-step test for determining disability. AT 41-44. At step one, he concluded that plaintiff had not engaged in substantial gainful activity since her alleged disability onset date. Id. at 41. The ALJ next concluded that plaintiff suffers from several impairments, including affective disorder, anxiety disorder, and a back impairment, but that those impairments do not, either individually or in combination, meet or medically equal any of the listed, ...

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