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Smith v. Commissioner of Social Security

United States District Court, N.D. New York

April 5, 2018

ELIZABETH ANN SMITH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          LAW OFFICES OF KENNETH HILLER, PLLC KENNETH R. HILLER, ESQ. Counsel for Plaintiff.

          U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II EMILY M. FISHMAN, ESQ. Special Assistant U.S. Attorney Counsel for Defendant.

          DECISION AND ORDER

          GLENN T. SUDDABY, CHIEF UNITED STATES DISTRICT JUDGE.

         Currently before the Court, in this Social Security action filed by Elizabeth Ann Smith (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. § 405(g), are Plaintiff's motion for judgment on the pleadings and Defendant's motion for judgment on the pleadings. (Dkt. Nos. 13 and 14.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted and Defendant's motion for judgment on the pleadings is denied.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1971, making her 42 years old at the alleged onset date and 45 years old at the ALJ's decision. Plaintiff reported completing one year of college. Plaintiff has past work as a group leader at a warehouse distribution center. Generally, Plaintiff alleges disability due to multiple sclerosis (“MS”) and a right ankle impairment.

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits on October 1, 2014, alleging disability beginning August 1, 2014. Plaintiff's application was initially denied on February 11, 2015, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at a hearing before ALJ Gregory M. Hamel on September 8, 2016. On October 5, 2016, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 15-30.)[1] On March 9, 2017, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1.)

         C. The ALJ's Decision

         Generally, in his decision, the ALJ made the following seven findings of fact and conclusions of law. (T. 20-30.) First, the ALJ found that Plaintiff meets the insured status requirements of the Social Security Act through December 31, 2018. (T. 20.) Second, the ALJ found that Plaintiff has not engaged in substantial gainful activity since her alleged onset date. (T. 20.) Third, the ALJ found that Plaintiff's MS and right ankle sprain are severe impairments, while thyroid disease is not a severe impairment. (T. 20-21.) Fourth, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meet or medically equal the severity of one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 21.) Specifically, the ALJ considered Listings 1.02 (major dysfunction of a joint) and 11.09 (multiple sclerosis). (T. 21.) Fifth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform sedentary work “but she can only occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; she cannot climb ladders or similar devices, or work in hazardous environments, i.e. heights or dangerous machinery.” (T. 22.) Sixth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T. 25.) Seventh, and last, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T. 26.) The ALJ therefore concluded that Plaintiff is not disabled.

         D. The Parties' Briefings on Their Cross-Motions

         1. Plaintiff's Motion for Judgment on the Pleadings[2]

         Generally, Plaintiff makes four arguments in support of her motion for judgment on the pleadings. (Dkt. No. 13, at 15-28 [Pl.'s Mem. of Law].) First, Plaintiff argues that the ALJ failed to conduct a thorough credibility analysis because he failed to address the credibility factors. (Id. at 15-19.) Specifically, Plaintiff appears to argue that the ALJ emphasized her daily activities, normal gait, and a lack of evidence of falling episodes noted in the medical reports while failing to note her good work history. (Id. at 18-19.) Plaintiff also argues that her simple upkeep of her home and preparation of meals does not suggest that she could work five days a week, eight hours a day. (Id. at 18.) Plaintiff additionally argues that the ALJ erred in considering Plaintiff's continued smoking because it is unclear what bearing, if any, her continued smoking would have on her disability status. (Id. at 19.)

         Second, Plaintiff argues that the ALJ's decision is based on a selective reading of the record. (Id. at 19-22.) Specifically, Plaintiff argues that the ALJ cherry-picked the evidence pertaining to Plaintiff's gait and reports of falling. (Id. at 21.) Plaintiff argues that a more accurate finding regarding Plaintiff's unsteady gait may have resulted in a determination that, due to an inability to consistently get in and out of an office, there would be no available employment for Plaintiff. (Id. at 22.) Plaintiff also argues that this case should be remanded to consider all of the evidence and not just that which supports the ALJ's decision. (Id.)

         Third, Plaintiff argues that the ALJ failed to properly weigh the opinion evidence. (Id. at 22-26.) Specifically, Plaintiff argues that the ALJ failed to give good reasons for not affording controlling weight to the opinion of treating physician Hassan Shukri, M.D. (Id.) Plaintiff argues that the reasons provided by the ALJ fall short of “good reasons” and that the ALJ did not mention the length of the treatment relationship, frequency of examination, the nature and extent of the treatment relationship, the relevant evidence supporting the opinion, the consistency of the opinion with the record as a whole, and whether Dr. Shukri was a specialist covering the particular medical issues. (Id. at 24-25.) Plaintiff also argues that MS “is a disease which is known to cause fatigue, yet the ALJ thought that his opinion was worth more than Dr. Shukri's.” (Id. at 25, 27-28.)

         Fourth, Plaintiff argues that the ALJ failed to develop the record regarding Plaintiff's MS and corresponding fatigue. (Id. at 26-28.) Specifically, Plaintiff argues that, because the ALJ found that MS is a severe impairment, the ALJ should have obtained a consultative examination “if he did not believe the opinion of Dr. Shukri.” (Id. at 27.) Plaintiff argues that the ALJ's choices were to make a decision in line with Dr. Shukri or to formulate a lay opinion based on the medical evidence and that the ALJ chose to do the latter, substituting his own opinion for that of Dr. Shukri. (Id. at 27-28.) Plaintiff also argues that the ALJ did not appear to consider the fatiguing nature of MS at all and that this is error because an RFC incorporating rest periods could have resulted in a finding of disabled, based on the VE's testimony that being off-task for breaks two hours out of a work day would preclude employment. (Id. at 28.) Plaintiff argues that, on remand, the ALJ should clarify whether fatigue was truly considered and, if necessary, get clarification from Dr. Shukri on his opinion and/or obtain a consultative examination. (Id.)

         2. Defendant's Motion for ...


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