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Ellis v. Colvin

United States District Court, W.D. New York

June 30, 2014

CAROLYN W. COLVIN, Commissioner, Social Security Administration, Defendant

For Rachelle M. Ellis, Plaintiff: Dennis A. Clary, LEAD ATTORNEY, Lewiston, NY.

For Michael J. Astrue, Commissioner of Social Security Administration, Defendant: Jane B. Wolfe, Mary C. Kane, LEAD ATTORNEYS, U.S. Attorney's Office, Buffalo, NY.

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HONORABLE MICHAEL A. TELESCA, United States District Judge.

I. Introduction

Rachelle M. Ellis (" Plaintiff" ), represented by counsel, brings this action pursuant

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to Title II of the Social Security Act (" the Act" ), seeking review of the final decision of the Commissioner of Social Security (" the Commissioner" )[1] denying her application for Disability Insurance Benefits (" DIB" ). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § § 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure

II. Procedural History

A. Initial Application and First Administrative Hearing

Plaintiff applied for DIB on June 14, 2004, T.62- 66, alleging disability based upon shoulder and neck injuries, headaches, and anxiety, with an onset date of April 20, 2003. This application was denied on February 4, 2005, after which she requested a hearing which was held before Administrative Law Judge Robert T. Harvey (" ALJ Harvey" ) on April 10, 2006. ALJ Harvey issued an unfavorable decision on September 11, 2006, T.213-30.

B. First Remand and Second Administrative Hearing

The Appeals Council reversed and remanded ALJ Harvey's decision on March 21, 2007. T.232-34. ALJ Harvey held a second hearing on October 16, 2007, and issued an unfavorable decision on October 24, 2007, T.13-25, which was affirmed by the Appeals Council on October 22, 2008.

C. First Federal Proceeding and Second Administrative Remand

On September 9, 2008, Plaintiff filed a pro se complaint in this Court. See Ellis v. Commissioner of Social Sec., 1:08-cv-00470-RJA-LGF (W.D.N.Y.). On March 31, 2009, the Commissioner and Plaintiff entered into a stipulation to remand her case for further administrative proceedings. See T.364-73; Docket No. 11 in Ellis, 1:08-cv-00470-RJA-LGF (W.D.N.Y. Mar. 31, 2009).

Based upon the stipulation, the Appeals Council issued another remand order on March 30, 2010, T.374-78, noting the case already had been remanded once " to further evaluate the claimant's residual functional capacity as it related to her ability to stand and/or walk as well as to obtain input from a vocational expert to determine the impact of reaching and handling restrictions on a residual functional capacity for less than a full range of sedentary work." At the second hearing, ALJ Harvey had obtained testimony from Jeremiah O'Sullivan, M.D., a medical expert, who testified tat Plaintiff met an obsolete musculoskeletal listing (1.03(B)). T.376. The Appeals Council noted that ALJ Harvey had

discounted Dr. O'Sullivan's opinion and surmised that he must have been referring to the current Listing 1.04(B) due to the nature of the claimant's severe spinal cervical stenosis, spinal arachnoiditis and severe arthritis of the neck. However, it is not apparent that Dr. O'Sullivan meant Listing l.04(B) because he never indicated the claimant suffered from spinal arachnoiditis. The certified transcript shows that the Administrative Law Judge inadvertently questioned Dr. O'Sullivan about Listing l.03(D), a section that does not exist.

T.376 (internal citations to record omitted). Due to the ambiguity generated by Dr. O'Sullivan's testimony, the Appeals Council

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noted, this Court had ordered the Administration to remand the case. Id.

The Appeals Council also indicated that further analysis of consultative examiner Dr. Sirotenko's opinion was needed " to properly assess the claimant's ability to reach in all directions, including overhead." T.377. As the Appeals Council noted, Dr. Sirotenko concluded that Plaintiff " should avoid lifting objects over her head to prevent cervical load." T.159. Although ALJ Harvey had addressed some of Dr. Sirotenko's findings, there was " no rationale about this specific finding, which was not included in the residual functional capacity." T.377.

The Appeals Council indicated that this omission affected the series of hypothetical questions posed to the VE. Furthermore, ALJ Harvey's RFC, T.21, which included occasional reaching and handling limitations, was inconsistent with the questions that he posed to the VE. T.377. Moreover, the jobs cited to support the unfavorable decision, T.24, were based on a frequent ability to use one's upper extremities to reach and handle. T.377 (citing T.330-31). The Appeals Council accordingly issued a set of instructions to the new ALJ, for the purpose of correcting the above-discussed errors. See T.377-78.

D. Third Administrative Hearing

Dennis A. Clary, Esq. (" Attorney Clary" ), was substituted for Jeffrey Piazza, Esq., who had represented Plaintiff previously. Attorney Clary wrote to the new ALJ, Timothy M. McGuan (" ALJ McGuan" ), and proposed that he contact medical expert Dr. O'Sullivan, either to appear at a hearing or to perform a file review and determine whether Plaintiff meets any of the current musculoskeletal listings based upon his previous findings. T.382. Attorney Clary also submitted a pre-hearing memorandum on August 11, 2010. T.401-02, along with submitted updated records from Dr. Bennett; Stephen Caprow, D.C.; and John Pollina, M.D. T.401.

At the commencement of the third hearing, the following colloquy occurred between Attorney Clary and ALJ McGuan:

ATTY: Just, for clarification's sake, the [A]ppeals [C]ouncil remand indicates, as far as they're concerned, the necessity for obtaining evidence from a medical expert.
ALJ: Right, and the medical expert that we only have is Dr. O'Sullivan and I will not call him. He finds everybody meets the listing, I think that's based on my experience with him, it's unreasonable.
ATTY: He's the only medical expert this is anymore?
ALJ: Right. So we're pretty much limited to him and I won't call him. Makes no sense-and I just-that's my choice, if you want to make any objection to it, do so on account of outlying [sic] your judgment.
ATTY: Well, I had-I know I sent you a letter with regard to that prior to the hearing.
ALJ: Mm-hmm.
ATTY: I-at this point, don't take any opinion position on that. I don't know if the appeals council will or not. That's-
ALJ: Well, that's up to them if-
ATTY: Up to them.
ALJ: If this is denied again, but I think he just is not-I don't think he understands the listings at all and-you could ask, I've done at least 20 cases with him and they're [sic] all been disabled people that met listings and that was just impossible. Okay, so any other questions?


Plaintiff appeared in person and testified. Vocational expert Donald Schader

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testified via telephone. After the hearing, ALJ McGuan issued an unfavorable decision on September 23, 2010. Plaintiff requested review from the Appeals Council, which declined jurisdiction on October 17, 2011. T.335-38. ALJ McGuan's ...

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