Sandra Irene B. v. Berryhill
| Decision Date | 26 March 2019 |
| Docket Number | 6:18-cv-00038 (BKS) |
| Parties | SANDRA IRENE B., Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of New York |
Appearances:
For Plaintiff:
Howard D. Olinsky
Olinsky Law Group
One Park Place
300 South State Street
Syracuse, NY 13202
For Defendant:
Ariella Zoltan
Special Assistant U.S. Attorney
Attorney for Defendant
c/o Social Security Administration
Office of General Counsel
26 Federal Plaza, Room 3904
New York, NY 10278-0004
MEMORANDUM-DECISION AND ORDER
Plaintiff Sandra B. filed this action under 42 U.S.C. § 405(g) seeking review of the Acting Commissioner of Social Security's denial of her application for Social Security DisabilityInsurance Benefits and Supplemental Security Income. (Dkt. No. 1). The parties' briefs, filed in accordance with N.D.N.Y. General Order 18, are presently before the Court. (Dkt. Nos. 13, 16). After carefully reviewing the Administrative Record,2 (Dkt. No. 10), and considering the parties' arguments, the Court affirms the Commissioner's decision.
On September 29, 2011, Plaintiff filed an application for disability benefits, (R. 64), claiming that she had been disabled since June 1, 2008 due to an on-the-job back injury and depression, (R. 166-70). The Commissioner denied her claim on February 9, 2012. (R. 64, 80). Plaintiff requested review of that denial, (R. 15-16), and a hearing was held before Administrative Law Judge ("ALJ") Gregory M. Hamel on April 17, 2013, (R. 37-63). On June 17, 2013, the ALJ issued a decision finding that Plaintiff was "not disabled" within the meaning of the Social Security Act. (R. 656-58). The Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (R. 674-76). Plaintiff sought review of that determination from this Court under 42 U.S.C. § 405(g). (R. 684). On December 23, 2016, the Court found in favor of Plaintiff, finding that, in "the absence of a functional assessment from Plaintiff's treating physicians or the opinion of a consultative examiner that would support the ALJ's RFC determination, remand for further development of the record" was required. See Sandra B. v. Colvin, No. 15-cv-00324 (N.D.N.Y. Dec. 23, 2018), ECF No. 23, at 30. Accordingly, the Court reversed the Commissioner's denial, and remanded for further proceedings at the administrative level. Id.
Following this Court's order, the Appeals Council vacated the final decision of the Commissioner and remanded Plaintiff's claim to "offer the claimant the opportunity for a hearing, take any further action needed to complete the administrative record[,] and issue a new decision."3 (R. 764). On September 5, 2017, a second hearing was held before ALJ Bruce S. Fein. (R. 627-55). On November 9, 2017, ALJ Fein issued a decision again finding that Plaintiff was "not disabled" within the meaning of the Social Security Act. (R. 614). Plaintiff did not file written exceptions with the Appeals Council, and the Appeals Council did not assume jurisdiction on its own within sixty days of the ALJ's decision, rendering the ALJ's denial the final decision of the Commissioner. See 20 C.F.R. § 404.984(d). Plaintiff commenced this action on January 10, 2018. (Dkt. No. 1).4
Plaintiff was forty-two years old on the date of her April 17, 2013 hearing. (R. 768). She testified that she was a high school graduate, (R. 40), and that she had last worked as a quality control inspector in a manufacturing facility, (R. 41). She left her job in June 2008, after "[her] knee blew out and [her] back at the same time." (R. 41-42). Plaintiff stated that she had back surgery in November 2008 and that, although she tried to find another job, no one would hire her because of her back problems. (R. 42). At the time of her hearing, Plaintiff was enrolled atMohawk Valley Community College, attending classes five days a week towards an associate degree in data processing. (R. 39, 43).
Plaintiff testified that she lived with her boyfriend. (R. 40). She stated that she would try to "pick up" around the house, but that it "depend[ed] on how [her] back" was feeling. (R. 44). She and her boyfriend did the laundry together. (R. 44). She sometimes cooked meals, but "it all depend[ed] on if [she] can stand at the stove." (R. 44). Plaintiff testified that her boyfriend usually did the grocery shopping, but that she could sometimes do it depending on how her back was feeling. (R. 47). She stated that she had not had a driver's license since 2010 because driving hurt her back. (R. 45-46). She took the city bus to get to school and sometimes got rides from a friend. (R. 46). When she was not at school or doing homework, she would watch television, read, or play computer games. (R. 43, 55). She testified that she went to a friend's house "once in a great while" to socialize, and that she had recently gone there for dinner. (R. 47). She met friends to talk, "go out for coffee, and stuff like that." (R. 47).
Plaintiff testified that, at the time of the hearing, she was in pain "mostly every day." (R. 51). She described the pain as "about a seven or eight [out of ten] all the time." (R. 55). Occasionally, she would be "down for a week" because of her back. (R. 51). During a recent flare-up, she had difficulty moving and needed help to get out of bed and to the hospital. (R. 54). She had a "hard time sitting" and could not sit for more than "20 minutes to a half hour" without getting up and "mov[ing] around or stand[ing] for awhile." (R. 51). She had a hard time putting on her socks and shoes. (R. 51). She received special accommodations at school, including the use of a "big, soft chair," and was allowed to stand up in the classroom if necessary. (R. 52). She indicated that she had to change position every ten minutes while in class, and that her pain sometimes interfered with her ability to concentrate on her schoolwork. (R. 56).
Plaintiff testified that her doctors prescribed hydrocodone for her back pain, and that she also took also took ibuprofen and aspirin. (R. 47, 49). Plaintiff was prescribed Zoloft and Remeron, which she indicated were helpful for alleviating her depression. (R. 49, 51).
Plaintiff was 47 years old on the date of her September 5, 2017 hearing before ALJ Fein. She testified that, since the time of her last hearing, she had undergone a right hip replacement in December 2015. (R. 630). In August 2016, she had back surgery "because a disc popped out above [her] pins and rods that [she] had in previously." (R. 630). Before her back surgery, she took prescribed pain medication and received shots, which were ineffective. (R. 631). In December 2016, she developed bursitis in her right hip, which she described as "real bad arthritis" that was "only going to get worse." (R. 631).
Plaintiff testified that her pain was "moderate" after her hip surgery and became worse after her back surgery. (R. 635). She testified that her back surgery relieved her pain for "a couple months," after which it felt "like somebody [was] taking their fist and just grinding [her] back." (R. 631). At the time of her second hearing, she frequently experienced a "little bit" of pain in her right hip, radiating down into her legs and feet. (R. 632). As a result of her hip and back pain, Plaintiff was unable to get out of bed or walk on certain days, (R. 631), and could only sit for ten minutes at a time before she would have to change positions, (R. 633). Plaintiff testified that she could only stand for approximately fifteen minutes at a time before her legs would become numb, (R. 634), after which she would have to "walk around for a little bit until [her] back [got] to where it [wouldn't] bother [her] so much," (R. 634), or lie down, (R. 636). Plaintiff testified that she was prescribed Meloxicam for her hip pain, (R. 632), and that she took Gabapentin for her back "when the pain [was] really, really bad." (R. 640). Although Gabapentin relieved the pain, enabling her to "get up and do a little bit," she did not take it every day becauseit made her sleep. (R. 641). She further indicated that, approximately three or four days per week, she would spend between twenty and twenty-three hours a day lying down watching television and sleeping. (R. 640, 641).
Plaintiff stated that, at the time of her second hearing, she used a cane to stand and walk because her hip and back pain caused difficulty balancing. (R. 636-37). Plaintiff testified that the cane was not prescribed by a doctor and that she could walk without it, (R. 637), but that, even using a cane, she would have to stop every ten minutes due to back pain, (R. 639). She could not lift more than ten pounds because of lower back pain, (R. 637), and attempting to lift more "could put [her] back out." (R. 638). She testified that she could not do laundry or use a mop. (R. 638). She could not do yard work. (R. 642). She could not go up or down stairs without "upsetting [her] back." (R. 638). Although she was able to use a broom, she could not use a dustpan because she could not bend down due to pain. (R. 638). Plaintiff testified that, if she bent down, she could "not get back up without some help." (R. 638). As a result, she had difficulty putting socks on and could not tie her shoes. (R. 643). She testified that she did not have difficulty bathing or getting dressed. (R. 643). Plaintiff was able to drive but did so infrequently because it was difficult to turn around to drive in reverse. (R. 642). On days when she experienced less pain, she was able to "stand up long enough to make something for dinner." (R. 642).
Plaintiff testified that she began experiencing depression in 2011, when her "mother passed away and [Plaintiff] didn't know how to deal with it" and "wanted to kill [herself] twice...
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