United States District Court, N.D. New York
JOSEPH D. JR., Plaintiff,
COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.
OLINSKY LAW GROUP, HOWARD D. OLINSKY, ESQ., Counsel for
SOCIAL SECURITY ADMIN., LUIS PERE, ESQ., Counsel for
MEMORANDUM DECISION AND ORDER
THÉRÈSE WILEY DANCKS, UNITED STATES MAGISTRATE
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
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 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.
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.
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.
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.
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
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.
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.
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.
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 ...