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Brown v. Commissioner of Social Security

United States District Court, N.D. New York

July 17, 2017

BARBARA BROWN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          LACHMAN, GORTON LAW FIRM, Counsel for Plaintiff PETER A. GORTON, ESQ.

          U.S. SOCIAL SECURITY ADMIN. KRISTINA D. COHN, ESQ. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant

          MEMORANDUM-DECISION AND ORDER

          WILLIAM B. MITCHELL CARTER, U.S. MAGISTRATE JUDGE.

         This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 13, 15.).

         Currently before the Court, in this Social Security action filed by Barbara Brown (“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 and Plaintiff's reply brief. (Dkt. Nos. 9, 10, 11.) For the reasons set forth below, Plaintiff's motion be granted, to the extent it seeks remand under Sentence Four of 42 U.S.C. § 405(g), and Defendant's motion is denied.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1970. (T. 262.) She completed college. (T. 268.) Generally, Plaintiff's alleged disability consists of fibromyalgia, depression, anxiety, post-traumatic stress disorder (“PTSD”), asthma, back pain, neck pain, traumatic brain injury, post-concussion disorder, degenerative disc disease, gastroesophageal reflux disease (“GERD”), and swelling. (T. 267.) Her alleged disability onset date is December 13, 2012. (T. 241.)[1] Her date last insured is December 31, 2016. (T. 263.) She previously worked as a data entry clerk, lab technician/cook, licensed practical nurse (“LPN”), and medical assistant. (T. 34-36, 269.)

         B. Procedural History

         On January 22, 2013, Plaintiff applied for a period of Disability Insurance Benefits (“SSD”) under Title II, and Supplemental Security Income (“SSI”) under Title XVI, of the Social Security Act. (T. 262.) Plaintiff's applications were initially denied, after which she timely requested a hearing before an Administrative Law Judge (“the ALJ”). On September 24, 2014, Plaintiff appeared before the ALJ, Elizabeth W. Koennecke. (T. 31-52.) ALJ Koennecke held a supplemental hearing on February 4, 2015. (T. 53-61.)

         On February 10, 2015, ALJ Koennecke issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 7-28.) On July 14, 2016, the Appeals Council (“AC”) denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.

         C. The ALJ's Decision

         Generally, in her decision, the ALJ made the following five findings of fact and conclusions of law. (T. 13-22.) First, the ALJ found that Plaintiff met the insured status requirements through December 31, 2016 and Plaintiff had not engaged in substantial gainful activity since December 13, 2012. (T. 13.) Second, the ALJ found that Plaintiff had the severe impairments of obesity, fibromyalgia, and minimal degenerative joint disease of cervical and lumbar spine. (T. 13-16.) Third, the ALJ found that Plaintiff did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 16.) Fourth, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to lift any weight up to three hours per day, frequently lift and/or carry less than ten pounds, sit for six hours out of an eight hour workday, and stand and/or walk for two hours out of an eight hour workday. (Id.)[2] Fifth, the ALJ determined that Plaintiff was capable of performing her past relevant work as a data entry clerk. (T. 20.)

         II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

         A. Plaintiff's Arguments

         Plaintiff makes essentially four separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues the ALJ erred in failing to find that Plaintiff's concussion syndrome was a severe condition and erred in failing to consider or find any limitations therefrom. (Dkt. No. 9 at 13-16 [Pl.'s Mem. of Law].) Second, Plaintiff argues that ALJ substituted her own medical opinion for that of Plaintiff's treating sources in formulating her RFC determination. (Id. at 16-21.) Third, Plaintiff argues the AC failed to consider newly submitted evidence and the ALJ improperly weighed the medical evidence in the record at the time of the hearing. (Id. at 21-22.) Fourth, and lastly, Plaintiff argues she cannot perform her past relevant work and the step five determination is not supported by substantial evidence. (Id. at 22-24.)

         B. Defendant's Arguments

         In response, Defendant makes four arguments. First, Defendant argues the ALJ did not err in her step two determination. (Dkt. No. 10 at 5-10 [Def.'s Mem. of Law].) Second, Defendant argues in determining Plaintiff's RFC, the ALJ properly evaluated the medical evidence of record. (Id. at 10-17.) Third, Defendant argues the ALJ properly found that Plaintiff could perform her past work as a data entry clerk. (Id. at 17-19.) Fourth, Defendant argues the ALJ properly relied on the Medical-Vocational Guidelines and vocational expert (“VE”) testimony at step five. (Id. at 19-20.)

         C. Plaintiff's Reply Brief

         Plaintiff filed a reply brief in which she reinforces the arguments made in her initial brief. (Dkt. No. 11.)

         III. RELEVANT LEGAL STANDARD

         A. ...


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