Stevenson v. Commissioner of Social Security

Filing 15

DECISION & ORDER: It is ordered that Defendant's Motion for Judgment on the Pleadings is GRANTED, the Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Securities Act is AFFIRMED. The Clerk is directed to enter judgment dismissing the # 1 Complaint filed by Anthony D. Stevenson. With Attached copy of Court Trancript of Decision held on 2/1/2012. Signed by Magistrate Judge David E. Peebles on 2/13/2012. (jmb)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________________ ANTHONY D. STEVENSON, Plaintiff, v. Civil Action No. 1:10-CV-0607 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. _________________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF: MARGOLIUS LAW OFFICE 7 Howard Street Catskill, NY 12414 PETER M. MARGOLIUS, ESQ. FOR DEFENDANT: HON. RICHARD S. HARTUNIAN United States Attorney for the Northern District of New York P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE SATHYA OUM, ESQ. Special Assistant U.S. Attorney DECISION AND ORDER Currently pending in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. § 405(g), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on February 1, 2012 during a telephone conference at which a court reporter was also present. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in his appeal. After due deliberation, and based upon the court’s oral bench decision, a transcript of which is attached and incorporated herein by 1 This matter has been treated in accordance with the procedures set forth in General Order No. 18 (formerly, General Order No. 43) which was issued by the Hon. Ralph W. Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on September 12, 2003. Under that General Order an action such as this is considered procedurally, once issue has been joined, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 2 reference, it is hereby ORDERED, as follows: 1) Defendant’s motion for judgment on the pleadings is GRANTED. 2) The Commissioner’s determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is directed to enter judgment, based upon this determination, dismissing plaintiff’s complaint in its entirety. Dated: February 13, 2012 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------x ANTHONY D. STEVENSON, vs. 10-CV-607 COMMISSIONER OF SOCIAL SECURITY ----------------------------------------------------x Transcript of DECISION held on February 1, 2012, at the James Hanley U.S. Courthouse, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding. A P P E A R A N C E S For Plaintiff: (Via Telephone) PETER M. MARGOLIUS, ESQ. 7 Howard Street Catskill, New York 12414 For Defendant: (Via Telephone) SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: SATHYA OUM, ESQ. 2 Stevenson v. Comm. of Social Security - 10-CV-607 1 (Via Telephone:) 2 THE COURT: I've reviewed the briefs and I've 3 considered the arguments of counsel. 4 briefly recount the history of this case. 5 Let me, as a backdrop, An application was made on behalf of the claimant 6 for childhood disability insurance and supplemental security 7 income benefits on December 4, 2006, alleging an onset date 8 of January 19, 1973, and, therefore, before the claimant 9 reached the age of 22. His application was denied. A 10 hearing was conducted on August 20, 2008, by the 11 Administrative Law Judge Thomas Grabeel, resulting in a 12 decision on September 17, 2008, denying the application for 13 benefits. 14 Security Appeals Council's decision on March 31, 2010, to 15 deny review. 16 That determination was made final by the Social In his decision, as we've discussed, Judge Grabeel 17 applied the well-known five-step test for determining 18 disability, found that plaintiff, first, had not engaged in 19 substantial gainful activity during any relevant period. 20 found that the plaintiff suffers from severe impairments, 21 including the history of spina bifida, borderline 22 intellectual functioning, obesity, and diminished vision; but 23 found that none of those meet or equal, either singly or in 24 combination, any of the listed presumptively disabling 25 impairments. He 3 Stevenson v. Comm. of Social Security - 10-CV-607 1 ALJ Grabeel then went to survey the evidence in the 2 record and concluded by finding that, despite his conditions, 3 plaintiff maintains the residual functional capacity -- or 4 RFC -- to perform a full range of sedentary exertional 5 activities, except that he has visual limitations in that he 6 is precluded from performing work requiring depth perception 7 of full field vision or perfect near and far visual acuity 8 and also might have difficulty with learning and 9 understanding and carrying out complex directions. 10 After noting that the plaintiff had no past 11 relevant work at step four to be considered and recognizing 12 the shifting of burdens at step five, ALJ Grabeel first 13 surveyed the Medical-Vocational Guidelines for use as a 14 framework which suggests that a finding of no disability and 15 that was confirmed after he elicited testimony from a 16 vocational expert through the use of hypotheticals. 17 I have applied the highly deferential standard of 18 review that applies in this case. The plaintiff has raised 19 three principal arguments. 20 improperly rejected the opinions of Dr. DiGiovanni expressed 21 in his December 4th, 2007, assessment of the plaintiff's 22 limitations as those of a treating physician, which should 23 have been offered deference. 24 undeniably, the opinion of a treating physician regarding the 25 nature and severity of an impairment is entitled to The first is that the ALJ I note, first, that, 4 Stevenson v. Comm. of Social Security - 10-CV-607 1 considerable deference, provided that it is supported by 2 medically acceptable clinical and laboratory diagnostic 3 techniques and is not inconsistent with other substantial 4 evidence. 5 To determine the weight to be given to a treating 6 source's opinion, the ALJ should have considered several 7 factors, including, significantly, the length of the 8 treatment; relationship and the frequency of examination; the 9 nature and extent of the treatment relationship; the degree 10 to which the medical source supported his opinion; the degree 11 of consistency between the opinion and the record as a whole; 12 whether the opinion is given by a specialist; and other 13 evidence which might be brought to the attention of the ALJ. 14 Now, Dr. DiGiovanni is clearly a specialist, an 15 orthopedic specialist. 16 was the first and only time that Dr. DiGiovanni had seen the 17 plaintiff and both his notes, his objective findings, and the 18 overwhelming findings of other treating sources, including 19 Dr. Oke, fail to support and are inconsistent with 20 Dr. DiGiovanni's limited findings. 21 administered, while showing spondylosis, showed no evidence 22 of stenosis or other evidence of herniation. 23 However, as far as I can see, this The CAT scan that was Dr. Oke's notes, including at Pages 240, 243, and 24 257 to 265 reflect a very different picture. He prescribed 25 only Motrin, Aleve and Extra Strength Tylenol for the 5 Stevenson v. Comm. of Social Security - 10-CV-607 1 plaintiff; and I note that on February 15th, 2008, when he 2 saw Dr. Oke, the plaintiff stated that he was feeling well. 3 That is at the Administrative Transcript 240. 4 Dr. DiGiovanni's findings are also inconsistent 5 with an exam administered on January 22nd, 2007, by Dr. Puri, 6 an exam which could prove and provide substantial evidence. 7 8 So I find that the rejection of Dr. DiGiovanni's opinions was properly explained and well-supported. 9 The second point raised by the plaintiff concerns 10 rejection of headaches, migraine headaches, as providing 11 further limitation on the plaintiff's RFC. 12 As I indicated previously, first of all, migraine 13 headaches were not mentioned as a limiting disability on 14 plaintiff's application. 15 mentioned at the hearing when the plaintiff was asked about 16 his limitations. 17 the medical history portion of two of Dr. DiGiovanni's 18 reports. 19 having headaches to Dr. Oke at AT 240, 242, 257, 260, 262, 20 and 264. 21 That is at AT 141. That is at AT 49. It was not It is only referenced in And plaintiff specifically and expressly denied And getting beyond that, even assuming for the sake 22 of argument, that the plaintiff does have headaches and does 23 suffer from ongoing migraine headaches, there's no indication 24 in the record that it has provided any limitation on his 25 ability to perform work functions. Plaintiff is able to 6 Stevenson v. Comm. of Social Security - 10-CV-607 1 read; he plays board games; and no one has said that he is 2 unable to perform work functions because of his migraine 3 headaches. 4 Next, the third, and final question, concerns 5 plaintiff's ability to perform the two jobs identified by the 6 vocational expert in his testimony. 7 backdrop, application of the grid or the Medical-Vocational 8 Guidelines in this case suggest a finding of no disability 9 and supports the vocational expert's opinions. Of course the, as a 10 Obviously, the plaintiff does suffer from 11 non-exertional limitations, which could potentially erode the 12 job base on which the Medical-Vocational Guidelines are 13 based; and the ALJ, therefore, quite properly, sought the 14 testimony of a vocational expert. 15 It's obviously a proper means of fulfilling the 16 agency's burden at step five and the use of hypothetical 17 questions to develop the vocational expert's testimony is 18 proper and permitted, provided, of course, that the 19 hypothetical utilized comprehensively and precisely includes 20 each physical and mental impairment of the claimant, except 21 as construed by the ALJ. 22 In this case, I find that the hypotheticals that 23 were posed are defensible and are supported by substantial 24 evidence in the record. 25 I understand the argument that has been raised 7 Stevenson v. Comm. of Social Security - 10-CV-607 1 concerning the GED level associated with the two jobs in 2 question; but I do not find that the GED 3 designation is 3 inconsistent with the finding of the need for the plaintiff 4 to be able to carry out only simple low-stress entry-level 5 job with simple instructions. 6 of my colleagues in Cross against Astrue, which is a case 7 cited by defendant, where Judge Bianchini addressed the 8 distinction between SVP and GED. 9 The issue is addressed by one And, in my view, the plaintiff is capable of 10 performing the functions of the two jobs identified by the 11 vocational expert. 12 his mental condition as any -- as limiting his ability to 13 work in his application. 14 surprise that he was even being tested in that regard. 15 has a high school degree and took mostly regular coursework. 16 He has a full scale IQ of 81. He, first of all, again, he did not list His father and he expressed He 17 And, so, I find that there is no evidence 18 suggesting that the plaintiff cannot meet the requirements of 19 the two jobs identified by the vocational expert in this 20 case. 21 In sum, I find that the Administrative Law Judge in 22 this case applied proper legal principles and his decision in 23 the case is supported by substantial evidence. 24 25 So I will issue an order granting defendant's motion for judgment on the pleadings confirming the 8 Stevenson v. Comm. of Social Security - 10-CV-607 1 Commissioner's determination and dismissing plaintiff's 2 complaint; and you'll get a short form order, which will 3 attach to it the transcript of my decision. 4 I appreciate from counsel the excellent briefing 5 and oral argument today which has been very helpful for me, 6 frankly; and I look forward to working with you in the 7 future. Have a good day. 8 DEFENSE COUNSEL: 9 SPEAKER 2: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you, your Honor. Thank you, your Honor. (Proceedings were adjourned.) C E R T I F I C A T I O N I, DIANE S. MARTENS, Registered Professional Reporter, DO HEREBY CERTIFY that I attended the foregoing proceedings, took stenographic notes of the same, that the foregoing is a true and correct copy of same and the whole thereof. ____________________________ DIANE S. MARTENS, FCRR

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