Pronti v. Barnhart

• Decision Date: 13 September 2004
• Docket Number: No. 03-CV-6090L.,No. 02-CV-6406L.,No. 02-CV-6646L.,No. 02-CV-6309L.,No. 03-CV-6170L.,02-CV-6309L.,02-CV-6406L.,02-CV-6646L.,03-CV-6090L.,03-CV-6170L.
• Citation: 339 F.Supp.2d 480
• Parties: Anne M. PRONTI, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant. Charmarie Silliman, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant. Richard Joslyn, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant. Curtis I. Ballard, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant. Raymond Perry, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of New York

339 F.Supp.2d 480

Anne M. PRONTI, Plaintiff, v. Jo Anne BARNHART, Commissioner of Social Security, Defendant.

Charmarie Silliman, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant.

Richard Joslyn, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant.

Curtis I. Ballard, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant.

Raymond Perry, Plaintiff, v. Jo Anne Barnhart, Commissioner of Social Security, Defendant.

No. 02-CV-6309L.

No. 02-CV-6406L.

No. 02-CV-6646L.

No. 03-CV-6090L.

No. 03-CV-6170L.

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

September 13, 2004.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

David E. Ralph, Elmira, NY, William J. McDonald, Jr., Geneva, NY, for Plaintiff.

Brian M. McCarthy, Christopher V. Taffe, Rochester, NY, for Defendant.

DECISION AND ORDER

LARIMER, District Judge.

I. INTRODUCTION

These five actions, Pronti v. Barnhart, 02-CV-6309L ("Pronti"), Silliman v. Barnhart, 02-CV-6406L ("Silliman"), Joslyn v. Barnhart, 02-CV-6646L ("Joslyn"), Ballard v. Barnhart, 03-CV-6090L ("Ballard"), and Perry v. Barnhart, 03-CV-6170L ("Perry"), were commenced pursuant to, inter alia, 42 U.S.C. § 405(g) to review the final determinations of the Commissioner of Social Security ("the Commissioner") that plaintiffs are not disabled under the Social Security Act ("the Act") and therefore are not entitled to Title II Social Security Disability Insurance or Title XVI Supplemental Security Income benefits. Plaintiffs allege that the Commissioner's decisions are not supported by substantial evidence and are based on legal errors committed by the Administrative Law Judge ("ALJ"). In addition, plaintiffs in all five cases allege that the ALJ who decided their cases, Franklin T. Russell, holds a "general" bias against all Social Security claimants. As a result of ALJ Russell's alleged bias, plaintiffs claim that the Commissioner violated their rights to a fair hearing before an impartial ALJ.

Plaintiffs in four of the cases, Perry, Joslyn, Silliman, and Ballard, have moved for judgment on the pleadings and seek a remand to the Social Security Administration ("the SSA"), either for the immediate calculation and payment of benefits or for further administrative proceedings. In two of these cases, Perry and Joslyn, plaintiffs also seek an order assigning the case to a different ALJ on remand.

In both Perry and Joslyn, the Commissioner concedes that ALJ Russell committed legal errors and agrees that a remand for further administrative proceedings is appropriate. The Commissioner, though, opposes remand to a different ALJ.

In Silliman and Ballard, plaintiffs seek a reversal of the Commissioner's decision denying benefits and a remand solely for calculation and payment of benefits. No request is made for assignment to a different ALJ. The Commissioner opposes the motions for remand and urges affirmance of the Commissioner's decisions denying benefits in both Silliman and Ballard.

In the fifth case, Pronti, the Commissioner has moved for a remand and agrees that on remand the case should be assigned to a different ALJ.¹

The principal issues common to all five cases are the alleged general bias of ALJ Russell and the ability of this Court to adjudicate that issue in the district court. To be sure, there are factual issues concerning entitlement to benefits that are unique to each individual case, but because there are significant common questions of law and fact in these cases, I consolidate them for purposes of deciding the pending motions. FED. R. CIV. P. 42.

Based on the record and concessions made by the Commissioner, I believe that three of the cases, Perry, Joslyn, and Silliman, must be remanded pursuant to sentence four of § 405(g). Although plaintiffs seek remand for immediate calculation and payment of benefits, I find that in these three cases further administrative proceedings regarding their claims of disability are necessary.

Given the legal errors committed by the ALJ in these cases, as well as the serious nature of the allegations concerning the issue of ALJ Russell's bias, which will be discussed here in detail, I direct the Commissioner to assign these three cases to a different ALJ on remand. The SSA is currently investigating claims of ALJ Russell's alleged bias, and the record shows that plaintiffs' attorney in these three cases, William McDonald, was interviewed as part of the investigation. (Perry, August 26, 2004 McDonald letter to Court). It very well may be that these three cases were part of the bias review. As a result, it is necessary that Perry, Joslyn, and Silliman be remanded to a different ALJ. See, e.g., Sutherland v. Barnhart, 322 F.Supp.2d 282, 291-92 (E.D.N.Y.2004); Hartnett v. Apfel, 21 F.Supp.2d 217, 222-23 (E.D.N.Y.1998); see also Miles v. Chater, 84 F.3d 1397, 1401 (11th Cir.1996); Ventura v. Shalala, 55 F.3d 900, 904 (3d Cir.1995); Kolodnay v. Schweiker, 680 F.2d 878, 879-80 (2d Cir.1982).

For reasons discussed infra, Pronti and Ballard are remanded to the Commissioner pursuant to sentence six of § 405(g) to take additional evidence regarding plaintiffs' claims of general bias of ALJ Russell.

II. REMAND PURSUANT TO SENTENCE FOUR OF 42 U.S.C. § 405(g)

A. Standards of Review

A person is considered disabled when he is unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months...." 42 U.S.C. §§ 423(d)(1)(A); 1382c(a)(3)(A). A physical or mental impairment (or combination of impairments) is disabling if it is of such severity that a person "is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." Id. at §§ 423(d)(2)(A); 1382c(a)(3)(B). To determine whether a person is disabled within the meaning of the Act, the ALJ proceeds through a five-step sequential evaluation. Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986); Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir.1999).²

The first task in these cases is to examine the merits of the Commissioner's decision regarding disability. The Commissioner's decision must be affirmed if it is supported by substantial evidence. 42 U.S.C. § 405(g); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002). A reviewing court also must independently determine if the Commissioner applied the correct legal standards in finding that plaintiff was not disabled. Townley v. Heckler, 748 F.2d 109, 113 (2d Cir.1984); accord Tejada, 167 F.3d at 773. "Failure to apply the correct legal standards is grounds for reversal." Townley, 748 F.2d at 112. In this regard, the Court should first review the legal standards applied and then, if the standards were applied correctly, consider the substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987).

Here, this task is made easier, to some degree, because the Commissioner agrees that in Perry and Joslyn legal errors were committed by the ALJ requiring further administrative proceedings. I agree with the Commissioner's assessment in those two cases; I also find that legal errors occurred in Silliman that require reversal and remand.

B. Perry v. Barnhart

On November 28, 2001, ALJ Russell issued a decision determining that plaintiff was not disabled. At step four, the ALJ found that plaintiff retained the residual functional capacity ("RFC") to do light work. He also found that plaintiff could return to his past relevant work as a conveyor systems builder. (T. 20).³

The Commissioner concedes that the ALJ failed to consider the opinions of two of plaintiff's treating physicians, Dr. Aleksander Rupik and Dr. Nche Zama, in accordance with the regulations, and failed to discuss the weight he gave to those opinions. Both Dr. Zama and Dr. Rupik gave opinions regarding plaintiff's RFC that were inconsistent with the ALJ's determination that plaintiff could perform light work.

The Commissioner, therefore, moves to remand the case to properly consider the opinions of plaintiff's treating physicians. I agree that the case should be remanded for this reason, and that the ALJ should make the appropriate findings in accordance with the Commissioner's regulations. See 20 C.F.R. § 404.1527(d)(2).

I also find that ALJ Russell made other errors in his analysis and that these errors must be addressed on remand. I agree with plaintiff that the ALJ's determination that plaintiff could perform his past relevant work is not supported by substantial evidence and is based on an erroneous RFC analysis that is not supported by any medical opinion of record. The ALJ concluded that plaintiff could stand and/or walk for eight hours in a workday. However, no medical opinion in the record states that plaintiff can stand or walk for all eight hours of a workday. The ALJ even ignored the opinion of the Commissioner's consultative examiner, Dr. Wesley Canfield, regarding plaintiff's heart condition (severe triple vessel coronary artery disease and status post two triple bypass surgeries), and did not explain why he did so.

I also find that the ALJ mischaracterized the plaintiff's testimony regarding the nature of his past relevant work as he actually performed that job. The ALJ concluded that "[a]s described by him in his testimony, his `past relevant work' as a builder of conveyor systems required standing/walking for about 8 hours in an 8-hour workday.'" However, plaintiff never testified to those facts, either at the hearing or in his written work-related questionnaire. (T. 47-48, 125). In fact, at the hearing, the ALJ asked plaintiff only two questions about what this job entailed and whether plaintiff had received training for...