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Boehnke v. Colvin

United States District Court, W.D. New York

March 28, 2014

CURT BOEHNKE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY Defendant.

DECISION AND ORDER

MICHAEL A. TELESCA, District Judge.

INTRODUCTION

Curt Boehnke ("Plaintiff" or "Boehnke") brings this action pursuant to the Social Security Act § 216(I) and § 223, seeking review of the final decision of the Commissioner of Social Security ("Commissioner") denying his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff argues that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence in the record and is erroneous as a matter of law.

On September 23, 2013 the Commissioner moved for judgment on the pleadings pursuant to 42 U.S.C. § 405 (g) on the grounds that the findings of the Commissioner are supported by substantial evidence and are conclusive.

For the reasons set forth below, this Court finds that the ALJ's decision is not supported by substantial evidence in the record. Therefore, the Commissioner's motion for judgment on the pleadings is denied. Further, after considering the whole record, this Court finds that the record supports a finding of disability. Therefore, this matter is remanded to the Commissioner for calculation and payment of benefits.

PROCEDURAL HISTORY

On March 5, 2008, Plaintiff filed applications for DIB and SSI, claiming disability since September 1, 2008 due to various physical and mental impairments. Administrative Transcript [T.] 176, 181. Plaintiff's applications were denied on June 19, 2008. T. 92. At Plaintiff's request, an administrative hearing was conducted before an ALJ, at which Boehnke testified and was represented by counsel. T. 75-83.

On December 7, 2010, the Appeals Council vacated the ALJ's decision and remanded the case to the ALJ for further consideration of Plaintiff's maximum residual functional capacity and to provide appropriate rationale in support of the assessed limitations, and to obtain evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base. T. 90-91. Plaintiff appeared with counsel before the ALJ on May 17, 2011 and testified, as did a vocational expert ("VE") whose testimony was given by telephone from Syracuse, New York.

On May 31, 2011, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act ("the Act"). T. 11-23. On September 21, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's Decision the final decision of the Commissioner.

This action followed.

BACKGROUND

Plaintiff is a 49-year old with a General Equivalency Diploma ("GED"). Plaintiff, who previously worked as a material handler, hand polisher, a welding machine operator, and a machine operator, claims to have been disabled since 2005. T. 37-40.

I. Medical History

In 2005, Plaintiff was treated for alcohol and cannibus dependence, and was discharged on October 27, 2005 because he was "consistently cancelling and no showing to his scheduled appointments." T. 315-317.

In 2006, while incarcerated, Plaintiff was admitted to the infirmary complaining of left shoulder pain and for "diabetic control." T. 383. He subsequently underwent an x-ray of his left shoulder that showed mild degenerative left AC joint disease. T. 363.

In 2007, Plaintiff went to Horizon Health Services where his "problem/diagnosis" list revealed juvenile diabetes, hepatitis C, neuropathy, and alcohol abuse in remission for 14 months. T. 458. A listing of his medications included insulin, lisinopril, neurontin, and hydrocodone for his back and shoulder pain. T. 460. At this time, Plaintiff also reported pain in his left shoulder. T. 462, 464. He subsequently underwent an MRI of his left shoulder that showed some tendinitis with possible tearing, some hypertrophic changes, and a degenerative signal. T. 363. Later that same year, he also underwent an MRI of his cervical spine that showed a prominence of the posterior ligament, some disc bulging or possible small herniations, and no cord compression. T. 476.

In 2008, Plaintiff began seeing Dr. Adrian Ashdown, who diagnosed him with uncontrolled type 1 diabetes, diabetic neuropathy, and controlled hypertension. T. 477, 479. In March of 2008, Plaintiff, complaining of left shoulder, upper arm, elbow, back, and neck pain, saw Dr. James Slough at Excelsior Orthopaedics. Dr. Slough assessed that Plaintiff had tendinosis of the distal supraspinatus, hypertrophic changes of the AC joint, and degenerative signal in the superior labrum. T. 473. Dr. Slough also advised Plaintiff at that time "to watch his sugar levels and be sure not to overtreat." T. 474. Also in March 2008, Plaintiff saw Dr. Daniel Downs of STHA Orthopedics for left shoulder pain, who diagnosed Plaintiff with adhesive capsulitis and recommended aggressive physical therapy. T. 596-597.

In April 2008, Plaintiff underwent a consultative pyschiatric evaluation with Dr. Renee Baskin and a consultative medical examination with Dr. Kathleen Kelley. T. 496, 502.

Dr. Baskin assessed minimal to no limitations in the ability to follow and understand simple directions and instructions, and perform simple tasks independently. T. 499. She assessed that he had moderate limitations in his ability to sustain attention and concentration, maintain a regular schedule, learn new tasks, and perform complex tasks. She opined, however, that Plaintiff would have significant limitations ...


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