Hofsommer v. Berryhill
| Decision Date | 20 August 2018 |
| Docket Number | 17 Civ. 4745 (GWG) |
| Parties | Jeffrey HOFSOMMER, Plaintiff, v. Nancy A. BERRYHILL, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Gary James Gogerty, Drake Loeb PLLC, New Windsor, NY, for Plaintiff.
Benil Abraham, Social Security Administration, New York, NY, for Defendant.
Plaintiff Jeffrey Hofsommer brings this action pursuant to 42 U.S.C. § 405(g) for judicial review of the final decision of the Commissioner of Social Security ("Commissioner") denying his claim for disability benefits under the Social Security Act (the "Act"). Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).1 For the reasons stated below, Hofsommer's motion is granted and the Commissioner's motion is denied.
Hofsommer applied for Disability Insurance benefits and Supplemental Security Income on March 10, 2014. See Certified Administrative Record, filed Nov. 1, 2017 (Docket # 11) ("R."), 26. The Social Security Administration ("SSA") denied Hofsommer's applications and Hofsommer sought review by an Administrative Law Judge ("ALJ"). R. 178-85. A hearing was held on December 15, 2015, at which Hofsommer and his attorney appeared. R. 108-170. In a written decision dated February 3, 2016, the ALJ found that Hofsommer was not disabled. R. 23-40. The Appeals Council denied review, making the ALJ's decision the final decision of the Commissioner. R. 1-6. Hofsommer filed this action on June 22, 2017, seeking review of that final decision. See Complaint, filed June 22, 2017 (Docket # 1).
Hofsommer was represented by attorney Gary Gogerty at the hearing before the ALJ. R. 110. Before calling any witness to testify, the ALJ reviewed the record, at which time Hofsommer's attorney stated that the only outstanding medical records were records pertaining to "[c]ontinuous treatment." R. 111. The ALJ then called Hofsommer to testify. R. 111.
Hofsommer was 54 years old at the time of the hearing, and had previously had two shoulder surgeries on his right arm. R. 112, 126. After his first surgery, Hofsommer re-injured his shoulder while helping his wheelchair-bound aunt into a car. R. 134-35. Physical therapy made his shoulder worse. R. 127-28. Hofsommer demonstrated how high he could lift his right arm for the ALJ, and the ALJ described it as being "a little bit above [his] waist." R. 128.
Hofsommer could not dial on a phone with his right hand because doing so caused him shooting pain up to his neck. R. 129. He described the pain as a sharp pain that runs from the tip of his shoulder to his fingers and neck, and said it was usually a nine to ten on a ten point scale. R. 143-44. He had received medical opinions from several doctors, who had said that he needed a total shoulder replacement and would have to wait until he was 62 to get one. R. 126-27. The doctors had told him that he was "too young and too active" to have another surgery earlier than that, but when the ALJ asked what the doctors meant by "too active," he said R. 139.
To treat his shoulder, Hofsommer took muscle relaxers and Ambien
to help him sleep. R. 127. Hofsommer testified that although he had previously been prescribed narcotic pain medication, the doctor who had prescribed that medication to Hofsommer had stopped doing so after finding that Hofsommer's urine tested positive for marijuana. R. 129-32. He no longer used marijuana, and drank a couple of beers "[m]aybe once a week." R. 132-33. Although the ALJ stated a medical report indicated that in November 2015, Hofsommer had been admitted to an emergency room and had been found to have a blood alcohol content of .243, Hofsommer denied any recollection of being tested and found to have that blood alcohol content. R. 133-34.
Regarding his work history and vocational experience, Hofsommer testified that other than occasionally watching an elderly friend of his for $50 "every week or two weeks" during the summer of 2015, he had not worked in any capacity since January of 2011. R. 111-13, 115. In 2006 and 2007, he worked for Breckenridge Enterprises in Florida, where he did "stone block work." R. 123-24. In 2000, he worked for "Hansen Pipe Products and Pre-Cast," where he smoothed concrete after it was poured. R. 124-25. He also worked as a construction worker in 1998 for a company called "PT Florida Incorporated," where he helped build high rise buildings. R. 148-49. Hofsommer had completed ninth grade, though he was enrolled in some special education classes when he attended school, and at the time of the hearing, he was illiterate. R. 117, 122-23. Hofsommer went to "Job Corps" for two years when he was 15 or 16. R. 117.
Concerning daily activities, Hofsommer stayed at home with his mother, with whom he lived. R. 118. Hofsommer's mother had previously had "a couple [of] heart attacks," and Hofsommer had moved back to New York from Florida in 2011 to take care of her. R. 119, 123. To help his mother, Hofsommer would "take out the trash ... vacuum floors" and would also assist her with cooking, cleaning, setting the table, and doing laundry. R. 119. Hofsommer was capable of using a riding lawnmower to mow his mother's lawn, though his brother often helped with work outside of the home. R. 120. Hofsommer could not lift anything with his right arm, though he would occasionally put one log at a time into his mother's fireplace using his left hand, with each log weighing "[m]aybe five pounds or something like that." R. 121. Hofsommer also stayed with his aunt every other week around 2011 or 2012 to help her with activities such as "putting her clothes in the wash and making sure her garbage and stuff was all taken out," and also "clean[ing] up her room." R. 135-36. Hofsommer had no driver's license because he lost it approximately eleven years prior to the hearing as a result of a "DUI." R. 116-17.
The ALJ called Josiah Pearson, a vocational expert witness ("VE"). R. 145. Using the Dictionary of Occupational Titles ("DOT"), the VE classified Hofsommer's prior work with PT Florida and Breckenridge as "construction worker II," which was an unskilled job requiring a very heavy level of exertion, and the job at Hammond as a "laborer at a concrete plant," an unskilled job with a heavy exertion level. R. 150-51.
The ALJ asked VE Pearson to assume a hypothetical person of Hofsommer's age, education, and work history, with the residual functional capacity ("RFC") to engage in a full range of light exertional work as defined in the DOT, but without the ability to reach overhead with his dominant right upper extremity, and with the ability to occasionally reach in all other directions with that extremity. R. 151. The VE testified that such a person could perform jobs that existed in substantial numbers in the national economy, including as an usher, school bus monitor, cashier II, or counter clerk. R. 152-53. The ALJ additionally asked whether any jobs would exist in the national economy that the hypothetical person could perform if he could not reach in any direction with the dominant right upper extremity but could occasionally handle and finger with that extremity. R. 153-54. The VE testified that such a person could perform the jobs already listed even with this additional restriction. R. 154.
Both Hofsommer and the Commissioner have provided summaries of the medical evidence contained in the administrative record. See Pl. Mem. at 4-14; Comm'r Mem. at 1-10. The Court had directed the parties to specify any objections they had to the opposing party's summary of the record. See Scheduling Order, filed Nov. 3, 2017 (Docket # 12), ¶ 5. Neither party specified any objections, and the summaries are substantially consistent with each other. Accordingly, the Court adopts Hofsommer's and the Commissioner's summaries of the medical evidence as accurate and complete for purposes of the issues raised in this suit. We discuss the medical evidence pertinent to the adjudication of this case in section III below.
The ALJ denied Hofsommer's application for benefits on February 3, 2016. R. 39-40. The ALJ found that Hofsommer met the insured status requirements of the Act through June 30, 2011, and that he had not engaged in substantial gainful activity since January 1, 2011, the alleged onset date. R. 28. The ALJ found that Hofsommer had severe impairments of "right shoulder rotator cuff tear
; osteoarthritis of the right shoulder; cervical spine degenerative disc disease and spondylosis ; tremor; and hypertension." R. 28. He found, however, that Hofsommer had no impairment or combination of impairments that met or medically equaled "the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1." R. 29.
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