White v. Saul

414 F.Supp.3d 377

Franklin C. WHITE, II, Plaintiff,

v.Andrew SAUL,¹ Commissioner of Social Security, Defendant.

1:17-cv-00498-MAT

United States District Court, W.D. New York.

Signed October 22, 2019

Brandi Christine Smith, Kenneth R. Hiller, Law Offices of Kenneth Hiller, PPLC, Amherst, NY, for Plaintiff.

Dennis J. Canning, Sarah E. Preston, Office of the General Counsel Social Security Administration, Kansas City, MO, Joanne Jackson Pengelly, Social Security Administration Office of General Counsel, New York, NY, for Defendant.

DECISION AND ORDER

HONORABLE MICHAEL A. TELESCA, United States District Judge

INTRODUCTION

Franklin C. White, II ("Plaintiff"), represented by counsel, brings this action under Titles II and XVI of the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner" or "Defendant"), denying his applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Docket No. 1. The Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. See Docket Nos. 12, 17, 19. For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted, and Defendant's motion is denied. The Commissioner's decision is reversed, and the matter is remanded to the Commissioner solely for the calculation and payment of benefits.

PROCEDURAL BACKGROUND

On May 11, 2010, Plaintiff protectively filed applications for DIB and SSI, alleging disability as of April 1, 2002, due to a visual impairment, broken neck, high blood pressure, and type II diabetes. Administrative Transcript ("T.") 75-76, 80, 277, 282. The claims were initially denied on July 9, 2010. T. 80, 94-96. At Plaintiff's request, a video hearing was conducted on January 27, 2011, by administrative law judge ("ALJ") Kenneth Chu. T. 61-74, 80. The ALJ issued an unfavorable decision on March 7, 2011. T. 77-86. Plaintiff appealed the decision to the Appeals Council, which granted his request for review on September 27, 2012, and remanded the case to the ALJ, directing him to further evaluate treating source opinion evidence and obtain clarification from the vocational expert. T. 90-92.

On July 29, 2013, a subsequent video hearing was held before ALJ Jerome Hornblass. T. 8, 30-60. The ALJ issued an unfavorable decision on September 10, 2013. T. 5-15. Plaintiff appealed the decision to the Appeals Council, which denied his request for review on December 30, 2014. T. 1-3.

Plaintiff appealed the decision to the United States District Court for the Western District of New York. T. 921-27. On August 27, 2015, the parties stipulated to remand the case to the Commissioner for further administrative proceedings. T. 950. On December 31, 2015, the Appeals Council issued a second order remanding Plaintiff's case to the ALJ, and directed him to consider additional evidence, including further evaluation of the treating and non-treating source opinions of Drs. James Budny and Nikita Dave. T. 951-55.

On January 26, 2017, ALJ Stephen Cordovani held a third video hearing. T. 833, 855-901. Plaintiff appeared with his attorney in Jamestown, New York, and the ALJ presided over the hearing from Buffalo, New York. Id. An impartial vocational expert also testified via telephone. Id. On April 3, 2017, the ALJ issued an unfavorable decision. T. 830-47. Plaintiff appealed the decision directly to this Court.

THE ALJ'S DECISION

The ALJ applied the five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. See 20 C.F.R. § 404.1520(a) ; 20 C.F.R. § 416.920(a). The ALJ initially found that Plaintiff met the insured status requirements of the Act through December 31, 2004. T. 836. At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since April 1, 2002, the alleged onset date. Id.

At step two, the ALJ determined that Plaintiff had the following "severe" impairments: obesity ; diabetes mellitus ; status-post multi-level neck fusion; right eye blindness; degenerative disc disease low back at L4-5; bilateral shoulder rotator cuff/labrum tears in 2016; and mild left eye diabetic retinopathy. Id. The ALJ also determined that Plaintiff's medically determinable impairment of diabetic peripheral neuropathy did not cause significant work-related functional limitations and thus was non-severe. Id.

At step three, the ALJ found that Plaintiff's impairments did not singularly or in combination meet or medically equal the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. The ALJ specifically considered Listings 1.02 (major dysfunction of joint due to any cause); 1.04 (disorders of the spine ); 2.02 (loss of central visual acuity); 2.03 (contraction of the visual fields in the better eye); 2.04 (loss of visual efficiency); and 9.00 (endocrine). T. 836-38.

Before proceeding to step four, the ALJ found that Plaintiff retained the residual functional capacity ("RFC") to perform sedentary work, as defined in 20 C.F.R. § 404.1567(a) and 20 C.F.R. § 416.967(a), except that he: "can lift up to 10 pounds; can sit 2 hours continuously, for a total of 6 hours per day; can stand 1 hour continuously and 4 hours total; can walk 1 hour continuously and 4 hours total; can occasionally climb ramps and stairs; can occasionally kneel, crouch, crawl; no climbing ladders, ropes or scaffolds; no work at unprotected heights or around dangerous moving mechanical machinery; occasional pushing and pulling; no overhead work; no exposure to extreme heat, humidity or cold; no work with vibratory tools; avoid concentrated exposure to fumes, odors, dusts, gases, poor ventilation and other respiratory irritants; no work requiring depth perception or peripheral vision." T. 838.

At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 845.

At step five, the ALJ found that, considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of document preparer, telephone order clerk, and surveillance system monitor. T. 845-46. The ALJ accordingly found that Plaintiff was not disabled as defined in the Act. T. 846-47.

SCOPE OF REVIEW

A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by "substantial evidence" or if the decision is based on legal error. 42 U.S.C. § 405(g) ; see also Green-Younger v. Barnhart , 335 F.3d 99, 105-06 (2d Cir. 2003). The district court must accept the Commissioner's findings of fact, provided that such findings are supported by "substantial evidence" in the record. See 42 U.S.C. § 405(g) (the Commissioner's findings "as to any fact, if supported by substantial evidence, shall be conclusive"). "Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Shaw v. Chater , 221 F.3d 126, 131 (2d Cir. 2000) (quotation omitted). The reviewing court nevertheless must scrutinize the whole record and examine evidence that supports or detracts from both sides. Tejada v. Apfel , 167 F.3d 770, 774 (2d Cir. 1999) (citation omitted). "The deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).

DISCUSSION

Plaintiff contends that remand is warranted because the ALJ did not properly evaluate medical opinion evidence offered by Donna Miller, D.O., Corinne Krist, D.O., and Nikita Dave, M.D. Docket No. 12-1 at 18. The Court finds that the ALJ erred by failing to comply with the Appeals Council's December 31, 2015 order directing the ALJ to properly weigh and address the opinion of Dr. Dave. Further, the ALJ did not properly assess the opinion of Plaintiff's treating physician, Dr. Krist. Accordingly, for the reasons explained below, the case is reversed and remanded to the Commissioner solely for the calculation and payment of benefits.

I. The Appeals Council's Directive

Plaintiff contends that the ALJ failed to weigh Dr. Dave's opinion, despite the Appeals Council's order directing him to do so. Docket No. 12-1 at 22. Defendant responds that Dr. Dave is a consultative examiner whose opinion is not entitled to controlling weight and the ALJ properly considered his opinion. See Docket No. 17-1 at 24-25.

The regulations clearly state that an "administrative law judge shall take any action that is ordered by the Appeals Council and may take any additional action that is not inconsistent with the Appeals Council's remand order." 20 C.F.R. § 404.977(b) (emphasis added). The failure of an ALJ to abide by the directives in an Appeals Council remand order constitutes legal error requiring remand.

Savino v. Astrue , No. 07-CV-4233 (DLI), 2009 WL 2045397, at *9 (E.D.N.Y. July 8, 2009) (citing Scott v. Barnhart , 592 F. Supp. 2d 360, 371 (W.D.N.Y. 2009) ("The ALJ's failure to comply with the Appeals Council's order constitutes legal error, and necessitates a remand.") (citations omitted); Mann v. Chater , No. 95 CIV. 2997(SS), 1997 WL 363592, at *1–2 (S.D.N.Y. June 30, 1997) (holding that the case must be remanded when the ALJ did not follow the orders of the Appeals Council)).

On December 31, 2015, the Appeals Council issued an order noting, in relevant part:

The hearing decision does not contain an adequate evaluation of the treating and nontreating source opinion of Drs. James Budny and Nikita Dave. Dr. Budny offered an opinion that the claimant's chronic pain syndrome limited him to one or two hours of work in a

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