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Demler v. Berryhill

United States District Court, W.D. New York

March 28, 2017

NANCY A. BERRYHILL, Acting Commissioner OF Social Security[1], Defendant.



         Plaintiff Margaret R. Demler (“plaintiff”) brings this action under Title II of the Social Security Act (the “SSA”), claiming that Defendant Nancy A. Berryhill, the Acting Commissioner of Social Security (the “Commissioner” or “defendant”) improperly denied her application for disability insurance benefits (“DIB”). Currently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, plaintiff's motion is granted in part and denied in part, defendant's motion is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.


         On June 1, 2011, plaintiff filed an application for DIB alleging disability as of September 6, 2010, due to chronic pulmonary obstructive disease (“COPD”), depression, and anxiety. Administrative Transcript (“T.”) 71, 116-22, 141. Plaintiff's application was denied on October 11, 2011. T. 72-75. A hearing, at which plaintiff testified, was held on October 29, 2012, before administrative law judge ("ALJ") Donald T. McDougall. T. 40-64. The ALJ issued an unfavorable decision on December 6, 2012. T. 19-39.

         Considering the case de novo and applying the five-step analysis contained in the Social Security Administration's regulations (see 20 C.F.R. §§ 404.1520, 416.920), the ALJ made, inter alia, the following findings: (1) plaintiff met the insured status requirements of the SSA through December 31, 2015; (2) plaintiff had not engaged in substantial gainful activity since September 6, 2010, the alleged onset date; (3) plaintiff's COPD, asthma, sleep apnea, degenerative joint disease, osteoarthritis, and obesity were severe impairments; (4) plaintiff's impairments, singly or combined, did not meet or medically equal the severity of any impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520[d], 404.1525, 404.1526); and (5) plaintiff had the residual functional (“RFC”) capacity to perform the full range of sedentary work. T. 22-31. The ALJ further found that plaintiff was able to perform her past relevant work as a secretary and that she had not been under a disability as defined in the SSA from September 6, 2010, through the date of the ALJ's decision. T. 34.

         Plaintiff filed a request for review with the Appeals Council on February 1, 2013. T. 17-18. On March 13, 2014, the Appeals Council issued a Notice of Appeals Council Action granting review of the ALJ's decision and indicating that the Appeals Council planned to make a corrective decision to modify the ALJ's RFC determination. T. 112-115. Then, on May 7, 2014, the Appeals Council (apparently inadvertently) issued two different orders. The first order (the “Remand Order”) remanded the claim to the ALJ to consider nonexertional limitations in the RFC and to obtain a vocational expert to opine on the effect of the assessed limitations on plaintiff's occupational base. T. 11-13. The second order (the “Modification Order”) modified the ALJ's RFC finding to include a limitation on concentrated exposure to cold/heat, wetness/humidity, and fumes, gases, odors, dust, etc., and otherwise upheld the ALJ's findings. T. 8-9. On July 2, 2014, the Appeals Council sent a letter to plaintiff explaining that the Remand Order had been added to the electronic file in error and that the Modification Order represented the final decision of the Commissioner. T. 1-2. Plaintiff seeks review of the Commissioner's final decision in the instant action.


         I. General legal principles

         42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the District Court “shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). This section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record.

         When determining whether the Commissioner's findings are supported by substantial evidence, the Court's task is “‘to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.'” Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999), quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983). Section 405(g) limits the scope of the Court's review to two inquiries: (1) whether the Commissioner's findings were supported by substantial evidence in the record as a whole and (2) whether the Commissioner's conclusions are based upon an erroneous legal standard. See Green-Younger v. Barnhart, 335 F.3d 99, 105-106 (2d Cir. 2003). “The Court [cannot] defer to the Commissioner's determination if it is the product of legal error.” Wilson v. Colvin, 107 F.Supp.3d 387, 401 (S.D.N.Y. 2015) (internal quotation marks ommitted).

         A. Relevant medical evidence

         Plaintiff's medical records show that she has treated with primary care physician Dr. Jihad H. Abialmouna and nurse practitioner (“NP”) Lori A. Moresco of Tonawanda Medical Practice (“TMP”) since March 2000. T. 144, 227-65, 322-40, 345-57. Notably, the administrative record only contains medical records from TMP from January 5, 2010 to September 20, 2012.

         Plaintiff was admitted to the hospital in June 2009 after two days of shortness of breath and coughing. T. 198. The administrative record does not contain any records from this hospital admission.

         On October 6, 2009, plaintiff was seen at TMP. T. 198. After noting that plaintiff's pulse oximetry was 90%, Dr. Abialmouna admitted plaintiff to DeGraff Memorial Hospital (“DeGraff”) for additional evaluation. Id. Plaintiff was admitted to DeGraff for 10 days (from October 6, 2009, to October 15, 2009), during which time she required oxygen and a Ventolin inhaler every four hours. Id. Plaintiff's final diagnoses were exacerbation of COPD, secondary bronchitis, hypertension, and mild depression. Id. On discharge, plaintiff's medications were avelox, xopenex, advair, prednisone, lisinopril, and hydrochlorothiazide. Id. Plaintiff was also started on a NicoDerm patch to aid with smoking cessation. Id.

         Plaintiff presented at the DeGraff emergency room on November 15, 2009, complaining of a debilitating headache that she apparently believed had been triggered by a COPD attack. T. 211-15. Plaintiff was admitted and a CT scan of her head and brain was performed, which was unremarkable T. 215. Plaintiff was discharged later the same day as her condition had improved. T. 214.

         Plaintiff treated with NP Moresco at TMP on January 5, 2010. T. 228-29. Plaintiff reported that she was feeling better and had ceased using oxygen at home. T. 228. Plaintiff further reported that she had ceased smoking in October and continued to be smoke-free. Id. Plaintiff had decreased breath sounds bilaterally. Id.

         Plaintiff was again hospitalized at DeGraff on January 14, 2010, and an echocardiogram was performed, which showed evidence of diastolic dysfunction. T. 200-202. The administrative record does not contain a discharge summary or other information regarding the reason for this hospitalization or any associated diagnoses.

         Plaintiff was admitted to DeGraff on April 25, 2010, for shortness of breath. T. 219-226. Plaintiff was diagnosed with acute exacerbation of asthma and a chest x-ray was performed, which showed no pathology. T. ...

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