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Burns v. Commissioner of Social Security

United States District Court, N.D. New York

May 30, 2017






          Hon. Glenn T. Suddaby Chief U.S. District Judge.

         Currently before the Court, in this Social Security action filed by Dingoni Burns ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 9, 10.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted, Defendant's motion for judgment on the pleadings is denied, and the case is remanded to the Commissioner for further proceedings.


         A. Factual Background

         Plaintiff was 39 years old on the alleged onset date and 42 years old on the date of the final Social Security Agency ("Agency") decision. Plaintiff has a tenth grade education, and past relevant work as a childcare monitor and a barber. Generally, Plaintiff's alleged disability consists of metal pins in his knee, right knee problems, back pain, abdominal problems, hemorrhoids, acid reflux, gastritis, and depression. (T. 221.)

         B. Procedural History

         On January 14, 2014, Plaintiff filed an application for Supplemental Security Income, alleging disability beginning on September 1, 2012. (Dkt. No. 8, Admin. Tr. "[T."] 102-03.) Plaintiff's application was initially denied on May 13, 2014, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). (T. 117-131.) On April 30, 2015, Plaintiff appeared in a video hearing before the ALJ, Paul Greenberg. (T. 26.) On July 31, 2015, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 11-20.) On June 7, 2016, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.

         C. The ALJ's Decision

         Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (T. 13-20.) First, the ALJ found that Plaintiff has not engaged in substantial gainful activity since January 14, 2014, the application date. (T. 13.) Second, the ALJ found that Plaintiff has the following severe impairments: dysfunction of major joint, arthritis, degenerative disc disease, affective disorder, and anxiety disorder. (T. 13-14.) Third, the ALJ found that Plaintiff's severe impairments, alone or in combination, do not meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, App. 1 (the "Listings"). (T. 14-15.) In doing so, the ALJ considered Listings 1.02, 12.04, and 12.06, as well as paragraph B criteria and paragraph C criteria with respect to Plaintiff's mental impairments. (T. 14.) Fourth, the ALJ found that Plaintiff has the residual function capacity ("RFC") to perform

sedentary work as defined in 20 CFR 416.967(a) except with the following additional limitations: [t]he claimant occasionally can climb ramps and stairs, balance, stoop, kneel, couch [sic] and crawl. He cannot climb ladders or scaffolds. The claimant frequently can interact with supervisors, and occasionally can interact with co-workers and the public.

(T. 15-18.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T. 18.) Sixth, and finally, the ALJ found that there are other jobs that exist in significant numbers in the national economy that the claimant can perform. (T. 19.)

         Because this Decision and Order is intended primarily for the review of the parties, the Court will not further recite the contents of the ALJ's decision or the other documents contained in the administrative record. Rather, the Court will refer to the administrative record where necessary to analyze the parties' arguments in support of their respective motions.

         D. The Parties' Briefings on Their Cross-Motions for Judgment on the Pleadings

         1. Plaintiff's Memorandum of Law

         Generally, Plaintiff advances three arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ erred in determining that his lung cancer did not constitute a severe impairment. (Dkt. No. 9 at 8-9 [Plf.'s Memo. of Law].)

         Second, Plaintiff argues that the ALJ erred in evaluating the medical opinion evidence of record when determinating Plaintiff's RFC in three ways: (a) the ALJ improperly relied on certain notes contained in the medical records of Dr. Ivan Antonevich, M.D., a pain management physician, because these notes were "repeated, verbatim, numerous times" and were "obviously a cut and paste carry over from one visit to the next without any evidence that the subject matter was even inquired into by the author of the note"; (b) the ALJ "completely mischaracterized" the opinions of Dr. Benjamin Sommer, D.O., by concluding that these opinions "indicated an ability to perform sedentary work";[1] and (c) the ALJ improperly afforded the opinion of Dr. Tanya Perkins-Mwantuali, M.D., a consultative examiner, "substantial weight, " because (i) as noted above, the ALJ "misunderstood" Dr. Sommer's conclusions regarding Plaintiff's limitations, and (ii) Dr. Perkins-Mwantuali is a pediatric internist, and Plaintiff was therefore not a "proper patient" of hers. (Id. at 3-5, 9-12)

         Third, Plaintiff argues that Defendant violated the Agency's regulations, as well as Plaintiff's right to due process, by improperly retaining "outside" consultants to examine Plaintiff. (Id. at 12-17.) More specifically, Plaintiff argues as follows: (a) Defendant violated 20 C.F.R. § 404.1519h because there is no evidence in the record to suggest that (i) the Agency made any effort to contact one of Plaintiff's treating sources to perform the examination that a single decision maker found necessary, or (ii) the Agency could have plausibly believed that Industrial Medical Associates-its "usual source" that "performs voluminous cursory evaluations without specialization" on its behalf-was better equipped than Plaintiff's treating sources to perform the examination; (b) there is no record evidence in the record to suggest that any of the bases for obtaining a consultative examination from a non-treating source, as set forth in 20 C.F.R. § 404.1519i, existed (or that the Agency even weighed the considerations in this regulation); and (c) the Agency "violated Plaintiff's due process right to adequate notice" pursuant to 20 C.F.R. § 404.1519j by failing to advise him of his right to (i) object to the consultative examiner chosen to perform the examination or (ii) request that his own doctor perform the examination.[2] (Id.)

         2. Defendant's ...

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