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Borsching v. Colvin

United States District Court, W.D. New York

April 23, 2015

NICOLE BORSCHING, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

For Nicole Borsching, Plaintiff: William J. McDonald, Jr., Bond and McDonald, Geneva, NY.

For Carolyn W. Colvin, Acting Commissioner of Social Security, Defendant: Amanda Lockshin, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, New York, NY; Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY.

DECISION AND ORDER

DAVID G. LARIMER, United States District Judge.

INTRODUCTION

Plaintiff Nicole Borsching (" plaintiff" ), brings this action under 42 U.S.C. ' 405(g) to review the final determination of the Commissioner of Social Security (" the Commissioner" ) that she is not disabled under the Social Security Act, and therefore, is not entitled to Social Security disability benefits.

Plaintiff originally applied for Social Security Income benefits on July 20, 2011. She listed a disability onset date of November 2, 2008. (T. 136).[1] Plaintiff's application was initially denied. Plaintiff then requested a hearing before an administrative law judge (" ALJ" ), which was held on October 2, 2012 before ALJ Michael W. Devlin. (T. 28-47). ALJ Devlin determined that plaintiff was not disabled under the Act (T. 8-22), and his decision became the final decision of the Commissioner on January 30, 2014 when the Appeals Council denied plaintiff's request for review. (T. 1-3). This appeal followed.

The plaintiff has moved (Dkt. #8) and the Commissioner has cross-moved (Dkt. #13) for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. As discussed below, the Commissioner's decision is vacated, and the matter is remanded for further proceedings.

FACTUAL BACKGROUND

Plaintiff was born September 30, 1982 and is presently thirty-two years old. She has a limited education has no past relevant work, her prior attempts at work as an animal caretaker, bartender, cashier, front desk clerk and cleaner having been brief and inconsistent. (T. 21).

Plaintiff's medical history includes treatment notes for adjustment disorder, depression, bipolar disorder, anger management issues, social phobia and anxiety. (T. 242, 233, 242, 279, 477, 479, 480, 512-514). In September 2007, she also sustained fractures of the left clavicle, right radius and ulnar shaft in a moto vehicle accident, which further resulted in rotator cuff syndrome and tendinopathy. (T. 246-253, 250, 265, 285). Other physical diagnoses include chronic low back pain and right internal knee derangement. (T. 306, 27, 462).

The record contains the opinions of a number of treating and consulting sources.

Plaintiff' primary care physician, Dr. Robert Shelly, found that plaintiff has no useful ability to function in social situations, could not respond appropriately to coworkers, and could not tolerate customary work pressures. (T. 506-507).

Consultative examiner Dr. Christine Ransom, a psychologist, opined that plaintiff suffers from bipolar disorder with psychotic features and probable borderline intellectual functioning. She stated that plaintiff would experience moderate difficulty performing complex tasks, relating to others and dealing appropriately with stress. (T. 340-343).

With regard to plaintiff's physical limitations, consultative examiner Dr. Harbinder Toor concluded that plaintiff had moderate to severe limitations in pushing, pulling, reaching and lifting due to shoulder and wrist pain, and mild to moderate limitations grasping, holding, writing, manipulating small objects, ...


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