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Morris v. Berryhill

United States District Court, W.D. New York

June 28, 2018

THURL MORRIS, JR., Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security (“the Commissioner”). The action is one brought pursuant to 42 U.S.C. §405(g) to review the Commissioner's final determination.

         On May 3, 2012, plaintiff, then forty-five years old, filed applications for a period of disability and disability insurance benefits, and for supplemental security income, alleging an inability to work since February 1, 2011. (Dkt. #8-2 at 13).[1] Those applications were initially denied. Plaintiff requested a hearing, which was held November 2013 before Administrative Law Judge (“ALJ”) Jennifer Gale Smith. On January 21, 2013, the ALJ issued a decision finding plaintiff not disabled. (Dkt. #8-2 at 13-29). The Appeals Council denied review, and plaintiff commenced an action in this Court. Pursuant to a stipulation between plaintiff and the Commissioner, this Court entered judgment in favor of the plaintiff, remanding the matter for further administrative proceedings. (Dkt. #8-9 at 779-82).

         A supplemental hearing was held on October 4, 2016 via videoconference. On December 23, 2016, the ALJ issued a second decision, again finding plaintiff not disabled. Plaintiff now appeals.

         The plaintiff has moved, and the Commissioner has cross moved, for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons set forth below, plaintiff's motion (Dkt. #11) is granted, the Commissioner's cross motion (Dkt. #13) is denied, and the matter is remanded for the calculation and payment of benefits.


         An ALJ applies a well-established five-step evaluation process to determine whether a claimant is disabled within the meaning of the Social Security Act, familiarity with which is presumed. See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002).

         Here, the ALJ determined that plaintiff suffers from the following severe impairments: degenerative disc disease of the cervical, thoracic and lumbar spine; osteoarthritis; chronic obstructive pulmonary disease; dysthymia versus major depression; post-traumatic stress disorder (“PTSD”); and alcohol abuse. (Dkt. #8-6 at 662).

         After reviewing of the evidence of record, the ALJ found that the plaintiff has retained the residual functional capacity (“RFC”) to perform a range of work at the medium, light or sedentary exertional levels, with a number of limitations. Plaintiff can lift and carry up to 10 pounds frequently, 11-20 pounds frequently, and 21-50 pounds occasionally. He can sit for 6 total hours in an 8-hour workday, for up to 3 hours at a time; can stand for a total of 4 hours up to 2 hours at a time; and can walk for 2 hours total, for up to 1 hour at a time. Plaintiff can occasionally reach overhead, and frequently reach in all other directions. He can occasionally push and pull up to the weight limits [specified for lifting and carrying]. He can frequently handle, finger and feel, and occasionally operate foot controls. Plaintiff cannot climb ladders, ropes or scaffolds, and can occasionally stoop, balance, kneel, crouch, crawl, work at unprotected heights and around moving mechanical parts. He should not work in extreme temperatures or around vibrations, and should have no more than occasional exposure to respiratory irritants, such as dusts, odors, fumes, gases and extreme temperatures. He can work only in a low-stress job defined as involving occasional decision-making, occasional use of judgment and occasional changes in the work setting. He should work at goal-oriented work rather than production pace rate work, and should have no more than occasional contact with coworkers, supervisors, and the public. (Dkt. #8-8 at 670).

         When presented with this RFC, vocational expert Josiah L. Pearson testified that plaintiff could perform the positions of address clerk and document preparer. (Dkt. #8-8 at 688-89).

         On appeal, plaintiff chiefly claims that the ALJ failed to properly consider the medical opinion evidence of record - particularly, that of plaintiff's treating psychiatrist, Dr. Martha E. Tymeson, to whom the ALJ gave “little” weight. (Dkt. #8-8 at 681). The Court concurs.

         A treating physician's opinion is entitled to controlling weight if it is well-supported by medical findings and not inconsistent with other substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999). If an ALJ opts not to afford controlling weight to the opinion of a treating physician, the ALJ must consider: (1) the examining relationship; (2) the extent of the treatment relationship; (3) medical support for the opinion: (4) consistency; and (5) the physician's specialization, along with any other relevant factors. 29 C.F.R. §404.1527(d)(2). An ALJ's failure to apply these factors and provide reasons for the weight given to the treating physician's report is reversible error. See Snell v. Apfel, 177 F.3d 128, 1 34 (2d Cir. 1999); Schall v. Apfel, 134 F.3d 496 (2d Cir. 1998).

         Plaintiff is a United States Army veteran who served from 1980 to 1992, with combat experience in Desert Storm and Desert Shield. (Dkt. #8-7 at 466). Dr. Tymeson, plaintiff's treating psychiatrist at the Veterans Administration, rendered a mental RFC opinion dated July 1, 2013. (Dkt. #8-7 at 470-72). Dr. Tymeson noted plaintiff's diagnoses of major depressive disorder with insomnia, PTSD with irritability and nocturnal hyperarousal, and chronic pain as a complication of both conditions. Dr. Tymeson opined, among other things, that plaintiff had “marked” limitations (defined as a loss of function greater than 33%) in maintaining attention and concentration, performing activities within a schedule, and responding appropriately to stressors or workplace changes. Dr. Tymeson also found “extreme” limitations (defined as “no or very little useful ability to function”) with respect to completing a workday without interruptions from symptoms, and opined that plaintiff's impairments would be expected to result in more than three absences per month. (Dkt. #8-7 at 470-72). In a subsequent form completed September 9, 2016, Dr. Tymeson reviewed her July 1, 2013 mental RFC assessment, and indicated that her opinion as to plaintiff's limitations had not changed. (Dkt. #8-13 at 1221).

         The ALJ rejected Dr. Tymeson's opinion, deferring instead to that of consulting psychologist Dr. Robert J. Maiden, who examined plaintiff one time, on January 6, 2012. Dr. Maiden found plaintiff's eye contact to be “a bit bizarre . . . kind of a vacant stare, ” and observed that plaintiff appeared “apathetic, ” “long winded” and “unrealistic, ” telling “rather strange or bizarre” stories and seeming to have “stress-related problems.” (Dkt. #8-7 at 465-69). Notwithstanding these observations, Dr. Maiden opined that ...

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