United States District Court, W.D. New York
MARGARET R. DEMLER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner OF Social Security, Defendant.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
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.
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.
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.
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.
General legal principles
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.
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).
Relevant medical evidence
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.
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
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
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.
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.
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
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. ...