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Joseph D. v. Commissioner of Social Security Administration

United States District Court, N.D. New York

January 14, 2020

JOSEPH D. JR., Plaintiff,

          OLINSKY LAW GROUP, HOWARD D. OLINSKY, ESQ., Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN., LUIS PERE, ESQ., Counsel for Defendant



         Currently before the Court, in this Social Security action filed by Joseph D. Jr. (“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. 9 and 11.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted and this case is remanded to the Social Security Administration (“SSA”) for a de novo review.

         I. BACKGROUND

         On December 28, 2015, Plaintiff protectively filed Title II and Title XVI applications for disability insurance benefits and supplemental social security income alleging disability as of February 12, 2015. (Administrative Transcript[1] at 12.) These claims were denied on February 18, 2016. T at 67-68. Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”). T. 88-89. Plaintiff subsequently appeared at an administrative hearing before ALJ Charles Woode on November 28, 2017. T. 28. Plaintiff testified he suffered from pain in his “lower joints” including his knees and hips. T. at 34-36. Vocational expert Corinne Porter also testified. T. at 52-58.

         On January 23, 2018, the ALJ issued a written decision finding Plaintiff was not disabled. T. 12-23. The ALJ's decision followed the SSA's five-step sequential evaluation process for determining whether an adult is disabled. See 20 C.F.R. § 416.920(a). At step-two, the ALJ found Plaintiff suffered from the following severe impairments: degenerative disc disease, degenerative joint disease, obstructive sleep apnea, and obesity. T. at 14. The ALJ found, based on the above-stated impairments, Plaintiff had the residual functional capacity (“RFC”) to perform “sedentary work” except

[he] is capable of occasional stooping, kneeling, crouching, crawling, and climbing of ramps or stairs. He is unable to operate push or pull controls with his left foot, and cannot climb ladders, ropes, or scaffolds. He is to avoid concentrated exposure to extreme temperatures, humidity, vibration and hazards such as dangerous machinery and unprotected heights. The claimant requires the opportunity to use a hand held assistive device for long distance ambulation and must have the opportunity to stand momentarily after sitting for between thirty and sixty minutes. The claimant should be given the option to elevate his legs at hip level for fifteen to twenty minutes, twice daily.

T. at 16.

         In making his RFC determination, the ALJ considered medical records and opinion evidence. As relevant here, the ALJ considered the opinions of Plaintiff's “treatment providers.” T. at 20. Specifically, James A. Dispenza's (“Dr. Dispenza”) August 29, 2017, opinion (T. at 590-94), and Robert A. Sherman's (“Dr. Sherman”) October 17, 2017, opinion (T. at 639-43). T. at 20. Dr. Dispenza, Plaintiff's primary care physician whom he has seen for various medical problems since 2014, opined he could never lift or carry anything above 20 lbs., could occasionally lift and carry up to 20 lbs., and could frequently lift and carry up to 10 lbs. T. at 590. He further noted Plaintiff could sit only three hours at one time and in total during an eight-hour workday. T. at 591. Supporting his findings, Dr. Dispenza mentioned issues with Plaintiff's “hips and knees.” T. at 592. Dr. Dispenza opined Plaintiff could never climb, balance, crouch, kneel or crawl and could only occasionally stoop. Id. Finally, he noted Plaintiff would miss work about once a month. T. at 594.

         Dr. Sherman, Plaintiff's orthopedist who performed his hip replacement surgery, opined Plaintiff could only occasionally lift 10 lbs., but never anything heavier. T. at 639. He further noted Plaintiff could sit four hours total during a work-day but only two hours at one time. T. at 640. In addition, Plaintiff could stand a total of three hours-in one-hour increments; and walk a total of two hours less than an hour at a time. Id. According to Dr. Sherman, Plaintiff would need a job that allowed shifting positions and he would need to take a 20-30-minute unscheduled break “daily.” Id. Dr. Sherman pointed to Plaintiff's right hip replacement and a right knee MRI to support his opinions. Id.

         The ALJ assigned these doctors' opinions “little weight” for ostensibly two reasons. First, according to the ALJ, “treatment records contemporaneous with these opinions describe largely unremarkable physical findings, with only somewhat reduced range of motion and some knee[] crepitus.” Id. (citing T at Exs. 1F, 2F, 6F). The ALJ further opined the doctors “may [have] provide[d] supportive notes or reports in order to satisfy patient requests and avoid unnecessary doctor/patient tension.” Id.

         Given Plaintiff's RFC, the ALJ concluded he was not disabled because there were significant numbers of jobs in the national economy he could perform. Specifically, the ALJ noted the vocational expert testified someone of Plaintiff's “age, education, work experience, and residual functional capacity” could perform as a telephone quotation position, tube operator, and order clerk. T. at 22.

         Plaintiff sought review of the ALJ's decision to the Appeals Council. However, on November 30, 2018, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T. 1-3.

         On January 29, 2019, Plaintiff filed a complaint in this Court seeking judicial review of the Commissioner's final decision. (Dkt. No. 1.) Pursuant to General Order 18, each party submitted supporting briefs which this Court treats as competing motions for judgment on the pleadings. (Dkt. Nos. 9, 11.)

         The main thrust of Plaintiff's challenge is that the ALJ did not follow SSA regulations when he weighed and ultimately discredited the medical opinions of his treating physicians. (Dkt. No. 9 at 13-21.) Plaintiff also contends an unconstitutionally appointed ALJ administered his case. Id. at 21-24. Defendant, on the other hand, asserts substantial evidence supports the ALJ's decision and Plaintiff waived any ...

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