McGee v. Berryhill, 17-cv-00499-LGF (consent)

• Decision Date: 18 December 2018
• Docket Number: 17-cv-00499-LGF (consent)
• Citation: 354 F.Supp.3d 304
• Parties: George Anthony MCGEE, Plaintiff, v. Nancy A. BERRYHILL, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of New York

354 F.Supp.3d 304

George Anthony MCGEE, Plaintiff,

v.Nancy A. BERRYHILL,¹ Commissioner of Social Security, Defendant.

17-cv-00499-LGF (consent)

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

Signed December 18, 2018

LAW OFFICES OF KENNETH R. HILLER, BRANDI SMITH, of Counsel, 6000 Bailey Avenue, Suite 1A, Amherst, New York 14226, Attorneys for Plaintiff.

JAMES P. KENNEDY, JR., UNITED STATES ATTORNEY, JUNE BYUN, Assistant United States Attorney, of Counsel, Federal Centre, 138 Delaware Avenue, Buffalo, New York 14202, and STEPHEN P. CONTE, Regional Chief Counsel, United States Social Security Administration, Office of the General Counsel, of Counsel, 26 Federal Plaza, Room 3904, New York, New York 10278, Attorney for Defendant.

DECISION and ORDER

LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE

JURISDICTION

On February 14, 2017, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned. (Dkt. No. 18). The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed by Plaintiff on November 27, 2017 (Dkt. No. 10), and by Defendant on January 19, 2018 (Dkt. No. 11). For the reasons discussed below, Plaintiff's motion is granted and the Commissioner's motion is denied.

BACKGROUND and FACTS

Plaintiff Michael Anthony McGee ("Plaintiff"), brings this action pursuant to the Social Security Act ("the Act"), seeking review of the Acting Commissioner of Social Security ("the Commissioner" or "Defendant") decision denying his application for Supplemental Security Income ("SSI") benefits under Title II of the Act, and Social Security Disability Insurance ("SSDI") benefits under Title XVI of the Act, together ("disability benefits"). Plaintiff, born on April 22, 1987(R. 78),² alleges that he became disabled on July 1, 2011, when he sustained injuries from a gunshot wound

to his head. (R. 158).

Plaintiff's application for disability benefits was initially denied by Defendant on December 12, 2011 (R. 78), and, pursuant to Plaintiff's request, administrative hearings were held before Administrative Law Judge Donald T. McDougall ("ALJ McDougall" or "the ALJ"), on March 11, 2013 and June 17, 2013, in Buffalo, New York, at which Plaintiff, represented by Justin Goldstein, Esq. ("Goldstein") appeared and testified. (R. 40-59). Plaintiff's grandmother Helene McGee ("Ms. McGee"), also appeared and testified (R. 59-64), along with vocational expert Esperanza Distefano ("VE Distefano"). ALJ McDougall rendered a decision denying Plaintiff's claim on June 17, 2013 (R. 23-33), the Appeals Council denied Plaintiff's request for review on December 31, 2014 (R. 1-4), and on September 22, 2015, following the filing of Plaintiff's action 15-cv-170S (Dkt. No. 1) on February 26, 2015, challenging Defendant's denial of benefits, upon stipulation by both parties the case was remanded to the Appeals Council. (R. 567-69). On October 22, 2015, the Appeals Council vacated the ALJ's decision, finding that the ALJ's determination that Plaintiff's schizoaffective disorder

and adjustment disorder were severe impairments inconsistent with the ALJ's alternate finding that such disorders resulted in only mild limitations to Plaintiff's activities of daily living, and his abilities to maintain social functioning, concentration, persistence or pace. The Appeals Council also ordered the ALJ to evaluate Plaintiff's mental impairments

in accordance with the special technique under 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.04 paragraph B, further consider the opinion of Aman Sharma, M.D. ("Dr. Sharma"), and Plaintiff's residual functional capacity, obtain testimony from a medical expert if necessary, provide rational specific evidence to support the ALJ's assessed limitations, conduct further proceedings, and, if warranted, determine whether Plaintiff's drug and alcohol use were contributing factors to the ALJ's finding of disability. (R. 573-74). On October 27, 2016, ALJ Sharon Seeley ("the ALJ" or "ALJ Seeley"),³ conducted an administrative hearing where Plaintiff and vocational expert Susan J. Rowe ("the VE" or "Rowe"), testified. (R. 509-43). ALJ Seeley issued a decision⁴ denying Plaintiff's claim on April 4, 2017. (Ex. A, 5-28). No exceptions to the ALJ's decision were filed and the ALJ's decision became the final administrative decision. See 20 C.F.R. § 404.984(d). On June 5, 2017, Plaintiff filed the instant action alleging that the ALJ erred by failing to find him disabled. (Dkt. No. 1).

On November 27, 2017, Plaintiff filed a motion for judgment on the pleadings ("Plaintiff's motion"), accompanied by a memorandum of law (Dkt. No. 12-1) ("Plaintiff's Memorandum"). On January 19, 2018, Defendant filed Defendant's motion for judgment on the pleadings ("Defendant's motion"), accompanied by a memorandum of law (Dkt. No. 14-1) ("Defendant's Memorandum"). Plaintiff filed a reply to Defendant's motion on the pleadings on February 21, 2018 ("Plaintiff's Reply Memorandum") (Dkt. No. 17-1). Oral argument was deemed unnecessary. Based on the following, Plaintiff's motion for remand is GRANTED and the matter remanded for calculation of benefits.

DISCUSSION

A district court may set aside the Commissioner's determination that a claimant is not disabled if the factual findings are not supported by substantial evidence, or the decision is based on legal error. See 42 U.S.C. 405(g) ; Green-Younger v. Barnhart , 335 F.3d 99, 105-06 (2d Cir. 2003). "Substantial evidence" means ‘such relevant evidence as a reasonable mind might accept as adequate.’ " Shaw v. Chater , 221 F.3d 126, 131 (2d Cir. 2000).

A. Standard and Scope of Judicial Review

The standard of review for courts reviewing administrative findings regarding disability benefits, 42 U.S.C. §§ 401 - 34 and 1381 - 85, is whether the administrative law judge's findings are supported by substantial evidence. Richardson v. Perales , 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). Substantial evidence requires enough evidence that a reasonable person would "accept as adequate to support a conclusion." Consolidated Edison Co. v. N.L.R.B. , 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938). When evaluating a claim, the Commissioner must consider "objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability (testified to by the claimant and others), and ... educational background, age and work experience."

Dumas v. Schweiker , 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris , 645 F.2d 122, 124 (2d Cir. 1981) ). If the opinion of the treating physician is supported by medically acceptable techniques and results from frequent examinations, and the opinion supports the administrative record, the treating physician's opinion will be given controlling weight. Schisler v. Sullivan , 3 F.3d 563, 567 (2d Cir. 1993) ; 20 C.F.R. § 404.1527(d) ; 20 C.F.R. § 416.927(d). The Commissioner's final determination will be affirmed, absent legal error, if it is supported by substantial evidence. Dumas, 712 F.2d at 1550 ; 42 U.S.C. §§ 405(g) and 1383(c)(3). "Congress has instructed ... that the factual findings of the Secretary,⁵ if supported by substantial evidence, shall be conclusive." Rutherford v. Schweiker , 685 F.2d 60, 62 (2d Cir. 1982).

The applicable regulations set forth a five-step analysis the Commissioner must follow in determining eligibility for disability insurance benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v. Bowen , 802 F.2d 601, 604 (2d Cir. 1986) ; Berry v. Schweiker , 675 F.2d 464 (2d Cir. 1982). The first step is to determine whether the applicant is engaged in substantial gainful activity during the period for which benefits are claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity the inquiry ceases and the claimant is not eligible for disability benefits. Id. The next step is to determine whether the applicant has a severe impairment which significantly limits the physical or mental ability to do basic work activities as defined in the applicable regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Absent an impairment, the applicant is not eligible for disability benefits. Id. Third, if there is an impairment and the impairment, or an equivalent, is listed in Appendix 1 of the regulations and meets the duration requirement, the individual is deemed disabled, regardless of the applicant's age, education or work experience, 20 C.F.R. §§ 404.1520(d) and 416.920(d), as, in such a case, there is a presumption the applicant with such an impairment is unable to perform substantial gainful activity.⁶ 42 U.S.C. §§ 423(d)(1)(A) and 1382(c)(a)(3)(A) ; 20 C.F.R. §§ 404.1520 and 416.920. See also Cosme v. Bowen , 1986 WL 12118, at * 2 (S.D.N.Y. 1986) ; Clemente v. Bowen , 646 F.Supp. 1265, 1270 (S.D.N.Y. 1986).

However, as a fourth step, if the impairment or its equivalent is not listed in Appendix 1, the Commissioner must then consider the applicant's "residual functional capacity" and the demands of any past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the applicant can still perform work he or she has done in the past, the applicant will be denied disability benefits. Id. Finally, if the applicant is unable to perform any past work, the Commissioner will consider the individual's "residual functional capacity," age, education and past work experience in order to determine whether the applicant can perform any alternative employment. 20 C.F.R. §§ 404.1520(f), 416.920(f). See also Berry, 675 F.2d at 467 (where impairment(s) are not among those listed, claimant must show that he is without "the residual functional capacity to perform [her] past work"). If the Commissioner finds that the applicant cannot perform any other work, the applicant is considered disabled and eligible for disability benef...