Gillespie v. Saul

DELROY DAVID GILLESPIE, Plaintiff, v. ANDREW SAUL, Commissioner of Social Security, Defendant.

19-CV-6268-MJP

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 18, 2020

DECISION & ORDER

INTRODUCTION

Pedersen, M.J. Delroy David Gillespie ("Plaintiff") brings this action pursuant to Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") finding that he is no longer disabled and cannot continue to receive disability insurance benefits ("DIB") under Title II of the Social Security Act. Pursuant to 28 U.S.C. § 636(c), the parties have consented to the disposition of this case by a United States magistrate judge. (Consent to Jurisdiction, ECF No. 15.)

Presently before the Court are cross-motions for summary judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF Nos. 11 & 15.) For the reasons stated below, this matter must be remanded for a rehearing.

PROCEDURAL BACKGROUND

Plaintiff filed an application for DIB on July 16, 2007. (R.¹ 150-51.) On September 3, 2007, the Commissioner found Plaintiff disabled as of August 28, 2007. (R. 13, 61, 77-80.) The Commissioner conducted a Continuing Disability Review ("CDR")² and found that as of March 15, 2016, Plaintiff had experienced medical improvement³ that would permit him to perform substantial gainful activity. (R. 65-68, 71-75.) Plaintiff contested this decision and requested a hearing. (R. 69, 82-104, 107.) On May 8, 2018, an Administrative Law Judge ("A.L.J.") conducted a hearing in Lawrence, Massachusetts, at which the claimant appeared via video and without representation. (R. 30-31.) A vocational expert also participated in the hearing. (Id.)

On May 23, 2018, the A.L.J. issued a decision confirming the initial finding that Plaintiff was no longer disabled. (R. 10-22.) In that decision, the A.L.J. foundthat since March 15, 2016, Plaintiff had the following medically determinable impairments: "history of fracture of lower left leg, multilevel degenerative disc disease, including foraminal narrowing and spondylosis, a small disc bulge at L4-5 and L5-S1 and lumbar radiculopathy." (R. 15, 17-18.) The A.L.J. also found that "Plaintiff's back impairments, and a history of left leg fracture cause more than minimal limitation in the claimant's ability to perform basic work activities." (R. 18.) Further, the A.L.J. found that Plaintiff had the following non-severe impairments: obesity, hypertension, hyperlipidemia, and anxiety. (Id.) The A.L.J. then determined Plaintiff's RFC, finding that Plaintiff could

perform sedentary work as defined in 20 CFR 404.1567(a) except the clamant [sic] can never climb ladders, ropes, or scaffolds. He can never crawl. He can occasionally perform all other postural movements. He can frequently rotate, flex, or extend the neck. He can occasionally perform foot control operations with the left lower extremity. He must avoid extreme cold, moving machinery, unprotected heights, and excessive vibration.

(R. 18.)

Plaintiff appealed to the Social Security Administration's Appeals Council and that body denied his request for review on February 20, 2019, making the A.L.J.'s decision the final decision of the Commissioner. (R. 1-6.) Plaintiff timely filed this civil action on April 10, 2019, seeking judicial review of the A.L.J.'s decision. (Compl., ECF No. 1.)

STANDARD OF REVIEW

Title 42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the district court "shall have the power to enter, upon the pleadings and transcript of therecord, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2007). It directs that when considering a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. Substantial evidence is defined as "'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997).

To determine whether substantial evidence supports the Commissioner's findings, the Court must "examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: whether the Commissioner's findings were supported by substantial evidence in the record, and whether the Commissioner's conclusions are based upon an erroneous legal standard. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); Mongeur, 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo).

As set forth above, this case involves the Commissioner terminating Plaintiff's disability insurance benefits. For purposes of disability insurance benefits, a person is disabled when unable "to engage in any substantial gainful activity by reason ofany medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). Such a disability will be found to exist only if an individual's "physical or mental impairment or impairments are of such severity that [he or she] is not only unable to do [his or her] previous work but cannot, considering [his or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A).

The plaintiff bears the initial burden of showing that the impairment prevents the plaintiff from returning to his or her previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, "the burden shifts to the [Commissioner] to prove the existence of alternative substantial gainful work which exists in the national economy and which the plaintiff could perform." Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

In order to determine whether the plaintiff is continuing to suffer from a disability, the A.L.J. must employ an eight-step analysis under Title II for disability. 416.994(b)(5). These steps are like the five steps used to initially determine disability. 20 C.F.R. §§ 404.1520; see Berry, supra, 675 F.2d at 467. For Title II disability, the eight steps are:

1. Whether the claimant engaged in substantial gainful activity;

2. Whether the claimant suffers from a severe impairment that equals or meets a listed impairment in the Social Security regulations;3. Whether there has been medical improvement;

4. If there has been a medical improvement, whether it is related to the claimant's ability to do work; i.e., whether the residual functional capacity has increased;

5. If there has been no medical improvement, whether an exception under the regulations are applicable;

6. Whether, with any medical improvement, if all current impairments in combination are severe;

7. If impairments are severe, whether the claimant can perform substantial gainful activity; and

8. If unable to perform past work, whether the claimant can do other work given [claimant's] residual functional capacity.

Fears v. Saul, No. 18-CV-1078, 2020 WL 562681, at *3 (W.D.N.Y. Feb. 5, 2020) (citing 20 C.F.R. § 404.1594(f)). If a plaintiff is found to be either disabled or not disabled at any step in this sequential inquiry, the A.L.J.'s review ends. Id.

To determine whether an admitted impairment prevents a claimant from performing past work, the A.L.J. "will assess [claimant's] current ability to do substantial gainful activity" meaning the A.L.J. "will assess [claimant's] residual functional capacity based on all [claimant's] current impairments and consider whether [claimant] can still do work [claimant has] done in the past." 20 C.F.R. § 404.1594(f)(7).

ANALYSIS

Plaintiff presents five arguments for this Court's review. (Pl.'s Mem. of Law at 1, ECF No. 11-1.) First, Plaintiff asserts that the A.L.J.'s finding of improvement was not based upon substantial evidence. (Id.) Next, Plaintiff contends that the A.L.J. failed to consider the favorable opinion of Harbinder Toor, M.D. (Id.) Plaintiff alsoasserts that the A.L.J.'s RFC is not supported by substantial evidence because the A.L.J. relied upon his own lay opinion when arriving at the RFC. (Id.) In addition, Plaintiff contends that the A.L.J. failed to fulfill his obligation to develop the record with respect to Plaintiff's mental health. (Id.) Finally, Plaintiff asserts that the Appeals Council improperly rejected evidence. (Id.)

The A.L.J.'s RFC determination is not supported by substantial evidence where he relied upon his own lay opinion and stale evidence in determining Plaintiff's RFC.

As part of Plaintiff's argument that the A.L.J. based the RFC determination on his own lay opinion, Plaintiff asserts that there was an evidentiary gap in the record because there was no opinion that addressed Plaintiff's impairments after a car accident in which he was involved in 2017. (Pl.'s Mem. of Law at 18.) Plaintiff contends that since there was no opinion addressing Plaintiff's impairments after the accident that the A.L.J.'s RFC was based upon his own interpretation of the raw medical data. The Court agrees.

An RFC assessment "is the most [the claimant] can still do despite [his or her] limitations." Cooks-Sanders v. Saul, No. 19-CV-264-MJR, 2020 WL 3046183,...