Blau v. Berryhill

• Decision Date: 16 September 2019
• Docket Number: 18 Civ. 4881 (GWG)
• Citation: 395 F.Supp.3d 266
• Parties: Elizabeth Joy BLAU, Plaintiff, v. Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

395 F.Supp.3d 266

Elizabeth Joy BLAU, Plaintiff,

v.Nancy A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

18 Civ. 4881 (GWG)

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

Signed September 16, 2019

Howard David Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Benil Abraham, Social Security Administration, Susan J. Reiss, Social Security Administration–Office of the General Counsel, New York, NY, for Defendant.

OPINION & ORDER

GABRIEL W. GORENSTEIN, United States Magistrate Judge

Plaintiff Elizabeth Joy Blau 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 claim for disability benefits under the Social Security Act (the "Act"). Both Blau and the Commissioner have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).¹ For the reasons stated below, Blau's motion is granted in part and denied in part.

I. BACKGROUND

A. Procedural History

Blau filed an application for a period of disability and disability insurance benefits ("DIB") on June 4, 2015, alleging a disability onset date of September 1, 2009. See Certified Administrative Record, filed Sept. 18, 2018 (Docket # 12) ("R"), at 10, 104-06. On June 12, 2015, Blau protectively filed for Supplemental Security Income ("SSI") benefits. R. 191-96. The Social Security Administration ("SSA") denied Blau's applications on August 25, 2015. R. 107-11. Blau requested a hearing before an administrative law judge ("ALJ") to review the denial. R. 115-19. Blau was represented by Jack Vega, a lay representative, at a hearing before an ALJ, R. 10, 152-53, which was held via videoconferece, see R. 36. In a written decision dated July 31, 2017, the ALJ found that Blau was not disabled within the meaning of the Act. R. 10-22. Blau requested that the Appeals Council review the ALJ's decision, see R. 186, and on April 2, 2018, the Appeals Council denied Blau's request for review, R. 1-4. This action followed. See Complaint, filed June 1, 2018 (Docket # 1).

B. The Hearing Before the ALJ

A hearing before the ALJ was held via videoconference on June 21, 2017. R. 33, 35. Blau testified from Goshen, New York, accompanied by a hearing reporter and her representative, while the ALJ participated from White Plains, New York. R. 35-36. A vocational expert ("VE"), Jeffrey Nocera, participated by telephone. R. 36, 39.

Blau first testified about her work history. In 2003 she earned $4445 working at a laundromat her father owned in Orangeburg, New York. R. 41-42. Blau worked there for only a few months, as her father had just purchased the laundromat and she was helping him get the business started. R. 42. The ALJ noted that Blau's earnings records showed that she worked for Ramapo Practice Management, LLC, in Ramsey, New Jersey. R. 43. Blau clarified that while the corporate offices were located in New Jersey, she actually worked for Ramapo Radiology in Pomona, New York. R. 43. She testified that she began her position right after she completed ultrasound technician training. R. 43. Blau completed an 18-month ultrasound training program at Good Samaritan Hospital, which included a six-month clinical component. R. 45. Blau worked as an ultrasound technician for Ramapo Radiology in 2005, where she performed several types of ultrasounds. R. 44. Her work involved "manipulating patients" for seven to eight hours per day to perform the ultrasound examinations. R. 44. The VE identified this position in the Dictionary of Occupational Titles ("DOT") as an "ultrasound technician," which has a Specific Vocational Preparation ("SVP") rating of seven. R. 45.² However, Blau was let go from her ultrasound position at the end of November 2006, because she was "the last one hired, and the first one fired before they closed." R. 43-44. The ALJ then stated that the ultrasound technician position did not count as past relevant work, because Blau did not perform the job for long enough for it to meet the SVP requirements. R. 46. Blau also testified that she has a two-year college degree from a community college. See R. 45.

The ALJ asked Blau about her work at DEC Copiers, Inc. R. 46. That company was owned by Blau's "father's best friend," and she worked as a representative for the company, answering phones, filling toner cartridges, taking orders, and performing other administrative tasks. R. 46. Blau confirmed that the position was a customer service representative position. R. 47. She worked at an office in Haverstraw, New York, where she sat at a counter with two other workers, each with their own computer and phone. R. 48. Her work consisted mostly of answering phone calls from customers requesting copy supplies, and then filling and sending out packages of the requested materials. R. 48. These packages could weigh anywhere from two to 25 pounds. R. 48. The ALJ identified this position as "customer service" or "administrative clerk," with an SVP of four. R. 50. The Dictionary of Occupational Titles ("DOT") listing for the job was 219.362-010, and it was a light-duty, semi-skilled position. R. 51. The ALJ confirmed that his testimony was consistent with the DOT. R. 51. The ALJ concluded that this position counted as past relevant work, as Blau worked at the position for a sufficient amount of time and made sufficient earnings to qualify as substantial gainful employment. R. 51.

Blau next testified about the medical events that caused her to stop working in 2009. She left her position at DEC Copiers, Inc., because she was hospitalized in connection with a back injury. See R. 52-53. She characterized this as a "catastrophic event" that caused her to be hospitalized for "a couple of weeks." R. 53. The ALJ then asked Blau about the origin of her back problems. R. 53. Blau explained that she has always had a "mild hunch," and that her posture "was not great." R. 53. About five years after she had her third child, who she testified "was in [her] arms for the first five years of her life," Blau felt a "nagging, aching" pain in her back. R. 53-54. Blau explained that she doesn't know "exactly what happened," but that one day when she bent down to pick up laundry, she felt "a pain that went from [her] buttocks all the way down to [her] toes." R. 53. She had "a dropped foot" with "severe neurological damage

," and was taken in to Lennox Hill Hospital in Manhattan for emergency surgery that week "to minimize that neurological permanency." R. 53-54. Blau returned to ultrasound school one week after this surgery. R. 54. Blau confirmed that her next surgery was on August 8, 2012, which was a "lumbar laminectomy

." R. 54. Blau characterized this surgery as "a disaster," and stated that she "came out of the surgery much, much worse with a lot of things that had been created by that surgery." R. 55. She later had a spinal cord stimulator inserted at the suggestion of her pain management doctor. See R. 54-55. She first had a "temporary" stimulator surgically implanted, and then, after about a week, a permanent stimulator was implanted. R. 55. However, it turned out the temporary "trial" stimulator worked better for Blau than the permanent stimulator, which did not alleviate Blau's back or leg pain, and caused Blau to "tense up," causing spasms and "attack[s]." R. 55-56. After a year, Blau had the stimulator removed. R. 56.

Blau testified that she has also had numerous epidurals in her back, which are "the only thing that gets [her] out of a catastrophic event," where she "is on [her] hands and knees, can't move," and has to spend a few weeks in the hospital. R. 56.

Blau next testified about the extent of her pain. Because of her pain, Blau "cannot stand for more than a few seconds." R. 57. As she was sitting for the hearing, Blau testified that her "entire left leg is numb, and the pain is ... at a level where [she] will have to get up in a few minutes just to alleviate it." R. 57. Blau takes "muscle relaxers, anti-anxieties, and at night ... opiates," but doesn't "like to take the opiates during the day because of driving." R. 57. However, if she has to do so because of an episode, Blau takes a "30-milligram Oxycodone

three to four hours [sic] a day." R. 57. Because she is allergic to the Oxycodone, Blau takes it with "50 milligrams of Hydroxyzine," or Benadryl. R. 57. This makes her "even more incapacitated," and "puts [her] to almost a comatose sleep." R. 57.

The ALJ next asked Blau to describe the "episodes" she referenced. R. 57. Blau explained that while she "live[s] with pain on a daily basis," when she has an "episode," then "all of a sudden [she] ha[s] a pain that completely locks [her]," such that she "can't move." R. 57. As of late, this has happened "at least four times a year," where she is "either hospitalized, or getting an epidural, at least." R. 57. She explained that "[t]here are some years where it's worse than others, but [she] ha[s] to be on medication all the time, otherwise [she] will be in a chronic episode, or catastrophic point." R. 57-58. She has "been to four doctors," and each of them has stated that "[u]ntil there's a new technology," there is no surgery available that will help Blau manage her pain. R. 58. She uses the over-the-counter Aleve

TENS-Unit, but it "do[esn]'t really do much for [her]." R. 58. A "patch of Lidocaine" does "help sometimes," and she wears one "almost every day." R. 58.

Blau also stated that for the past three years she has had a "a giant tumor on [her] spine." R. 58. She said that her doctors had told her that "it was a stable mass." R. 59. She had a biopsy of the tumor at Columbia Presbyterian three weeks prior to the hearing, which came back benign. R. 59. She was scheduled to have the tumor removed surgically on August 2, 2017. R. 59.

Blau next testified about various gastrointestinal issues. She has had her gallbladder removed, and has a very rare condition called "Sphincter of Oddi dysfunction

." R. 59. She...