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McArthur v. Colvin

United States District Court, W.D. New York

November 3, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


MICHAEL A. TELESCA, District Judge.


Donald Joseph McArthur ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act ("the Act"), 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"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Before the Court are Plaintiff's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and the Commissioner's motion for remand pursuant to the fourth sentence of 42 U.S.C. § 405(g).


On July 23, 2010, Plaintiff protectively filed an application for DIB and SSI benefits, alleging disability since November 1, 2007, due to torn rotator cuffs, shortness of breath, high blood pressure, and constant fatigue. T.155-61.[1] Following denial of his claim on October 12, 2010, T.84-99, Plaintiff requested an administrative hearing. On December 16, 2011, Plaintiff appeared with counsel for a hearing before Administrative Law Judge Connor O'Brien ("the ALJ") in Rochester, New York. T.36-62.

On February 22, 2012, the ALJ issued a decision, finding that Plaintiff was not disabled as of November 1, 2007, the alleged onset disability date, but that he was disabled as of December 26, 2010. T.10-22. On May 20, 2013, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T.1-3. Plaintiff timely commenced this action.

In his motion, Plaintiff challenges the ALJ's decision that he was not disabled from November 1, 2007, through December 26, 2010. Plaintiff argues that the ALJ's residual functional capacity ("RFC") assessment is erroneous because the ALJ failed to give the opinion of treating physician Dr. Stornelli controlling weight and improperly substituted her opinion for that of Dr. Stornelli's. Plaintiff requests reversal of the Commissioner's decision and remand solely for the calculation of benefits. The Commissioner concedes that the ALJ erred in applying the treating physician rule and argues that remand is appropriate because the record does not contain persuasive evidence of disability.

For the reasons set forth below, the Commissioner's motion is granted, and the matter is remanded for administrative further proceedings.


I. Plaintiff's Testimony

Born on December 27, 1955, Plaintiff was 51-years-old on the alleged onset date. T.192. He has a ninth grade education and has worked in the past as a laborer and painter. T.215. Plaintiff can read and write in English, but he has trouble with basic math. Plaintiff testified that he worked in a deli from 1996 until 2000; for the New York State Department of Labor in the Bureau of Public Works in 2000; and cleaning airplanes in 2001. T.45-46. Plaintiff performed odd jobs between 2002 and 2007, such as painting and driving to pick up materials. T.44.

Plaintiff testified that it is difficult to drive for long distances without stopping to stretch his back. T.41. On his way to the hearing, his car broke down about one mile from the hearing office, and he had to walk the rest of the way. He estimated that he stopped about five or six times due to pain. He only could walk about two and a half blocks before his legs would tighten. T.58.

Plaintiff testified that he wakes up during the night due to right shoulder and hip pain. T.51. His neighbors help him shovel the driveway, work on his car, and mow the lawn. T.52-53. He can shower and prepare meals for himself. T.55. He does laundry in small loads because he cannot carry a laundry basket and walk. T.56. He uses a portable cart to bring groceries to and from his vehicle. Id . Plaintiff can lift a gallon of milk to waist height only. Id . He can bend over to the floor. T.57. He can stand and wash the dishes for five to ten minutes, but experiences sharp pain in his back afterwards. T.59. He can extend his right arm straight out in front of him, but he cannot raise his right hand above his shoulder without pain. Id . He was not working because of back pain and difficulty in walking quickly and carrying items. T.42-43, 50-51. He has been on blood pressure medication for several years and muscle relaxers for his back pain. T.60-61.

II. Medical Evidence

A. Plaintiff's Medical Records

On August 30, 2007, Plaintiff was admitted to Rochester General Hospital for chest pain. See T.305-06. He had taken cocaine that day and was also on blood pressure medication. A stress echocardiogram showed mild left ventricular hypertrophy and a hypertensive blood pressure. He was discharged the next day.

On September 14, 2007, Plaintiff saw his primary care physician, David Stornelli, M.D., who noted that Plaintiff's high blood pressure was uncontrolled. T.270. Plaintiff had abstained from cocaine since leaving ...

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