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Meegan v. Berryhill

United States District Court, W.D. New York

May 5, 2017

TIMOTHY P. MEEGAN, Plaintiff,
v.
NANCY A. BERRYHILL, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Represented by counsel, Timothy P. Meegan (“plaintiff”) brings this action pursuant to Title II of the Social Security Act (“the Act”), seeking review of the final decision of the Commissioner of Social Security (“the Commissioner”) denying his application for disability insurance benefits (“DIB”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter was initially before the Court on the parties' cross motions for judgment on the pleadings.[1] The parties' motions were referred to Magistrate Judge Hugh B. Scott for consideration of the factual and legal issues presented, and to prepare and file a Report and Recommendation (“R&R”) containing a recommended disposition of the issues raised.

         II. The R&R

         By R&R dated April 5, 2017, Magistrate Judge Scott recommended that the case be remanded for further consideration, including further development of the administrative record, as described therein. Doc. 20. Both parties were notified that they were given 14 days within which to file objections; however, neither party has filed an objection. For the reasons set forth below, the Court remands this case solely for the calculation and payment of benefits pursuant to 28 U.S.C. § 636(b)(1)(C).

         III. Factual Background and Administrative Proceedings[2]

         Plaintiff, a veteran, was diagnosed with multiple sclerosis in 1998 after developing balance issues and numbness in the hands and feet. The record reveals that he treated continuously for this condition from 1998, up to and throughout the relevant time period. Although medications controlled his condition for some time, various treatment records indicate that in 2012 his condition exacerbated after he developed a hypersensitivity to Avonex, a medication for treatment of MS symptoms. During the relevant time period, plaintiff's symptoms included neurogenic bladder (a lack of bladder control due to brain, spinal cord, or nerve damage) for which he performed self-catheterization; parenthesis (tingling or numbness) of the hands and feet; general fatigue and generalized upper and lower extremity weakness; visual scotoma (an area of partially diminished or degenerated visual acuity); and gait difficulty. MRIs of plaintiff's brain and cervical spine showed areas of demyelination (damage to the protective sheath surrounding nerve fibers in the brain and spinal cord).

         Certified physician's assistant (“PA”) Stacy Ann Michalski, who treated plaintiff during the relevant time period at the VA Medical Center in Buffalo, wrote on July 2, 2014 that plaintiff suffered from “disorganization of motor function, ” including “reduced strength at baseline and . . . excessive weakness with sustained muscle use”; “visual and mental impairment” including “blurring [or] tunnel vision with watching computer monitor, television, or any visual stimuli” and “blurring and floaters at peripheral vision that reduce his visual fields”; “short term memory loss, making it difficult for him to follow commands and finish simple tasks”; “difficulty with mental concentration for short periods of time”; “significant upper and lower extremity fatigue with motor functioning”; “bilateral upper and lower extremity paresthesia”; and plaintiff “frequently drop[ped] objects and trip[ped] over uneven surfaces.” T. 562.

         In a separate form, PA Michalski further opined that plaintiff had poor to no ability to carry out very short and simple instructions; maintain attention for extended periods of 2 hour segments; maintain regular attendance and be punctual within customary tolerances; sustain ordinary routine without special supervision; make simple work-related decisions; complete a normal workday or week without interruptions from psychologically-based symptoms; and perform at a consistent pace without an unreasonable number and length of rest periods. The record of PA Michalski's treatment supports the statements contained within her reports. See T. 268-70, 286-88, 294-98, 462-64, 470-72, 482-84, 514-16, 560-61.

         Three treatment notes appear in the record from Dr. David Hojnacki. The first, dated December 31, 2009 (prior to the relevant time period here) noted an essentially normal physical examination. The second, dated March 30, 2011, again noted essentially normal findings but recorded plaintiff's reports that he suffered from “severe urinary retention” for which he self-catheterized at least four times per day, as well as complaints of “chronic fatigue and intermittent spasms in his legs.” T. 570. The note indicated that plaintiff was to discontinue his current medication because of a risk of PML (progressive multifocal leukoencephalopathy, an infection which damages myelin). The third treatment note, dated January 16, 2014, noted that Dr. Hojnacki's review of plaintiff's record indicated a history “of severe spinal cord MS.” T. 566. Dr. Hojnacki again found an essentially normal physical examination, but noted that plaintiff had experienced multiple episodes of exacerbation of symptoms on several different medications, and indicated that medication management was an active issue going forward.

         At his hearing on June 2, 2014, plaintiff testified that he had worked at a trucking company, first as a driver, then as a supervisor, and finally as a service fleet manager, for a total of approximately eleven years. For eight years, he took medication which controlled his MS symptoms. However, his immune system developed antibodies to the medication, his symptoms exacerbated, and he struggled to find a new medication. He testified that he had to quit his job because he could not perform his job duties, “was constantly tired, ” and “couldn't handle the responsibilities of the fleet anymore.” T. 42. According to plaintiff, “[t]he simple tasks that [he] had done for the 11 years that [he] had been there [he] could no longer do.” Id. Plaintiff testified that his symptoms included fatigue and numbness of the hands, feet, and chest. He stated that he could no longer urinate without using a catheter, which required him to self-catheterize five to six times per day.

         During the hearing, the ALJ raised concerns about Dr. Hojnacki's treatment notes. Plaintiff testified that he treated with Dr. Hojnacki only for medication management, but the records submitted by Dr. Hojnacki reflected testing which was inconsistent with plaintiff's testimony regarding his symptoms. The ALJ commented that, based on the discrepancies between plaintiff's testimony and Dr. Hojnacki's medical records, “either that [the examination] didn't happen and this report is unsubstantiated or it did happen and perhaps the doctor was wrong in his conclusions.” T. 58. The ALJ went on to state that he was “very, very confused by this record.” Id.

         IV. Standard of Review

         Within fourteen days after a party has been served with a copy of a magistrate judge's report and recommendation, the party “may serve and file specific, written objections to the proposed findings and recommendations.” Fed.R.Civ.P. 72(b). “If no objections are made, . . . a district court need review. . . a report-recommendation only for clear error.” Breinin v. Colvin, 2015 WL 7738047, *1 (N.D.N.Y. Dec. 1, 2015). “A [district] judge . . . may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” Id. (quoting 28 U.S.C. ยง 636(b)). No objections having been filed, the Court has accordingly reviewed the R&R. However, for the reasons ...


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