Blash v. Berryhill, 18 Civ. 2288 (GWG)
| Decision Date | 20 May 2019 |
| Docket Number | 18 Civ. 2288 (GWG) |
| Citation | 379 F.Supp.3d 288 |
| Parties | Jannine BLASH, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Locksley O'Sullivan Wade, Law Office of Locksley O. Wade LLC, New York, NY, for Plaintiff.
Joseph Anthony Pantoja, New York, NY, for Defendant.
Plaintiff Jannine Blash brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Acting Commissioner of Social Security (the "Commissioner") denying her applications for Disability Insurance Benefits and Supplemental Security Income under the Social Security Act (the "Act"). Blash moves the Court to set aside the decision below or for remand. The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).1 For the reasons stated below, the Commissioner's motion is granted.
Blash filed applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on April 18, 2014, alleging a disability onset date of August 1, 2012. See Certified Administrative Record, filed June 17, 2018 (Docket # 10) ("R."), 112-13, 188, 195. The Social Security Administration ("SSA") denied Blash's applications on September 3, 2014. R. 115-22. Blash requested a hearing before an administrative law judge ("ALJ") to review the denial, R. 160, which occurred on June 6, 2016, R. 67-83. In a written decision dated April 26, 2017, the ALJ found that Blash was not disabled within the meaning of the Act. R. 41-42. Blash requested that the Appeals Council review the ALJ's decision, R. 186, but on January 17, 2018, the Appeals Council denied Blash's request, R. 1-6. Blash timely filed this action on March 14, 2018. See Complaint (Docket # 1).
Blash was represented by her attorney, Roland Nemes of Bronx Legal Services, at the hearing before the ALJ on June 6, 2016. R. 67. Blash testified at the hearing. R. 69-83. A vocational expert ("VE") was to attend the hearing but was unavailable. R. 82-83. At the hearing, Blash, though her attorney, amended her alleged onset date to April 18, 2014. R. 69; see R. 26.
Blash testified that she was born in 1969, is single, and has two adult children, one of whom she lives with in her eleventh-floor Bronx apartment. R. 70. She uses the stairs when the elevator in her apartment building is not working. R. 70. Blash does not drive and takes public transportation. R. 70-71.
Blash worked prior to 2000, and then again between 2003 and 2006. R. 71. Her most recent work included clerical work, receptionist-type work, temporary jobs, and work as a full-time home health aide. R. 71-72. As a home health aide, Blash's duties consisted of helping her homebound client dress, preparing the client's meals, cleaning, and taking the client to appointments. R. 73. This job involved "a combination of a lot of standing and lifting." R. 73. In 2012 or 2013, Blash was forced to stop working due to pain resulting from gynecological issues. R. 73-74. Although she eventually had surgery as a result of these issues, R. 73-74, Blash has continued to experience pain due to pancreatitis
, which is somewhat relieved by medication, R. 74. She also uses a heating pad for her stomach and back pain. R. 75. The pain Blash experiences as a result of the pancreatitis is sometimes so severe that she cannot get out of bed for a week at a time, though these episodes take place only "three or four times in a year." R. 76.
Blash also testified that she has an asthma
condition, whose symptoms are managed by use of an inhaler, a nebulizer (with abuterol sulfate), a steroid in the form of Symbicort, and the drug Spiriva. R. 75. Due to her asthma, she finds it increasingly more difficult to "walk long distances without getting winded" or "running out of breath." R. 76. She can walk only two blocks at a time, and tries to avoid walking at all. R. 76. Though she has difficulties walking, Blash has no problem sitting. R. 76. She cannot "carry too much," because of the resulting pain in her abdomen. R. 77.
Blash also answered questions from the ALJ regarding her psychiatric condition. She testified that her depression "affects [her] a lot," and that she has been on several different medications with increasing dosages. R. 77. Blash also takes medication to help her sleep at night. R. 77. Without the medication, however, she has "racing thoughts" at times and cannot settle herself down enough to fall asleep. R. 78. Being around new people makes her anxious, and riding the subway has become "increasingly difficult" because of her fear of large crowds and because of the violence that occurs in the city. R. 78. For that reason, and because she is also claustrophobic — she does not "like being under the [subway] tunnel" — Blash takes the bus whenever possible. R. 78-79. She also has had a reduced appetite, which is associated with depression, and difficulty concentrating. R. 79.
On a typical day, if she does not have "an appointment," Blash spends her day "stuck in the house" and does not want to get out of bed. R. 79. Because her daughter is a full-time college student, there is no one to help with daily chores. R. 79. Still, Blash prepares her own food and does some cleaning, though not as much as she did before the onset of her current impairments and resulting pain. R. 79. While Blash does have phone contact with her son, she does not keep in touch with other family, friends, or neighbors. R. 80. She has no hobbies or activities for which she must leave the house. R. 80. She stated that she was seeing a psychiatrist and a therapist, had started out with drugs such as Zoloft
, and at the time was on "a generic form of Wellbutrin." R. 80. Blash testified that she was seeing a psychiatrist once a month, and that while she used to see her therapist twice a week, she was currently being introduced to a new therapist with whom she was meeting weekly. R. 81. In response to the ALJ's questioning, Blash stated that the therapy sessions "are rough ... because [the sessions] start touching on a lot of things that I don't really want to deal with." R. 81. In response to additional questions from her attorney, Blash stated that she usually sleeps 10 to 12 hours each night, and increasingly finds herself napping throughout the day. R. 81-82.
At the end of the testimony, the ALJ noted that the VE who was supposed to testify at the hearing was not present. R. 82. The ALJ explained to Blash that the VE "can testify to work that you did in the past, and work that's available in the national economy." R. 82. The ALJ stated that a VE is not always necessary in social security cases, and that if one was necessary in Blash's case, "we would probably do that by writing since we didn't have them here." R. 82. Thus, the ALJ explained, any VE testimony in Blash's case would be offered through written interrogatory; after having a chance to review the written testimony, Blash would have an opportunity to request a supplemental hearing. R. 82. Finally, the ALJ stated that the record would be held open for a "couple of weeks in order to get the updated medical records." R. 82-83.
On November 1, 2016, the ALJ wrote to VE Yaakov Taitz ("VE Taitz") in connection with Blash's pending case, asking him to complete a set of interrogatories based on the evidence in Blash's case. R. 289-93. On November 7, 2016, VE Taitz returned the completed interrogatories. R. 296-99. Among the interrogatories was a hypothetical question, which asked VE Taitz to assume a hypothetical individual who has the residual functional capacity to perform "medium work ... with only occasional exposure to dust, odors, fumes and other pulmonary irritants." R. 297. Based on this, VE Taitz found that such an individual would not be able to perform any of Blash's past jobs of home aide, receptionist, or secretary. R. 296-97. However, VE Taitz found that such a hypothetical individual could perform three unskilled occupations with jobs that exist in the national economy. R. 298. These were: hand packager, machine packager, and warehouse worker, all medium, unskilled jobs. R. 298. Blash, through her attorney, objected to the interrogatory responses for two reasons. R. 303-04. First, because the occupation of hand packager requires "frequent exposure to atmospheric conditions," the determination that Blash could perform such a job was in conflict with the hypothetical posed to VE Taitz, which asked the VE to assume an individual who could tolerate only "occasional exposure" to pulmonary irritants. R. 303. Second, the finding that Blash could perform medium work was "inconsistent with her treatment records and the medical opinion evidence." R. 303-04.
On December 16, 2016, the ALJ sent a new set of interrogatories with similar instructions to a different VE, Andrew Vaughn ("VE Vaughn"). R. 307-11. Notably, the ALJ this time asked the VE to assume a hypothetical individual who was limited to sedentary work with the exception that this individual must "avoid all exposure to environmental irritants (gases, odors, etc), extreme cold/heat, wetness/humidity." R. 309 (emphasis in original). On January 23, 2017, VE Vaughn returned the completed interrogatories. R. 314-17. Based on the hypothetical posed by the ALJ, VE Vaughn found that such an individual would not be able to perform any of Blash's past jobs of home health aide, babysitter, receptionist, or general office clerk. R. 314. However, VE Vaughn found that — based on the hypothetical characteristics provided, including that the individual was limited to sedentary work and could not experience exposure to environmental irritants — the individual could perform three unskilled occupations with jobs that exist in the national economy. R. 316. These were: table worker,...
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...after hearing via written interrogatories; describing how to obtain VE testimony through interrogatories); Blash v. Berryhill, 379 F. Supp. 3d 288, 296 (S.D.N.Y. 2019) (holding that the ALJ properly relied on a VE's written responses to interrogatories submitted to the VE after the hearing)......