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)

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.

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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

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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.

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Stevenson v. Comm. of Social Security - 10-CV-607

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(Via Telephone:)

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THE COURT:

I've reviewed the briefs and I've

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considered the arguments of counsel.

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briefly recount the history of this case.

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Let me, as a backdrop,

An application was made on behalf of the claimant

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for childhood disability insurance and supplemental security

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income benefits on December 4, 2006, alleging an onset date

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of January 19, 1973, and, therefore, before the claimant

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reached the age of 22.

His application was denied.

A

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hearing was conducted on August 20, 2008, by the

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Administrative Law Judge Thomas Grabeel, resulting in a

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decision on September 17, 2008, denying the application for

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benefits.

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Security Appeals Council's decision on March 31, 2010, to

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deny review.

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That determination was made final by the Social

In his decision, as we've discussed, Judge Grabeel

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applied the well-known five-step test for determining

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disability, found that plaintiff, first, had not engaged in

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substantial gainful activity during any relevant period.

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found that the plaintiff suffers from severe impairments,

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including the history of spina bifida, borderline

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intellectual functioning, obesity, and diminished vision; but

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found that none of those meet or equal, either singly or in

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combination, any of the listed presumptively disabling

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impairments.

He

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Stevenson v. Comm. of Social Security - 10-CV-607

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ALJ Grabeel then went to survey the evidence in the

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record and concluded by finding that, despite his conditions,

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plaintiff maintains the residual functional capacity -- or

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RFC -- to perform a full range of sedentary exertional

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activities, except that he has visual limitations in that he

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is precluded from performing work requiring depth perception

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of full field vision or perfect near and far visual acuity

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and also might have difficulty with learning and

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understanding and carrying out complex directions.

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After noting that the plaintiff had no past

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relevant work at step four to be considered and recognizing

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the shifting of burdens at step five, ALJ Grabeel first

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surveyed the Medical-Vocational Guidelines for use as a

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framework which suggests that a finding of no disability and

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that was confirmed after he elicited testimony from a

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vocational expert through the use of hypotheticals.

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I have applied the highly deferential standard of

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review that applies in this case.

The plaintiff has raised

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three principal arguments.

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improperly rejected the opinions of Dr. DiGiovanni expressed

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in his December 4th, 2007, assessment of the plaintiff's

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limitations as those of a treating physician, which should

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have been offered deference.

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undeniably, the opinion of a treating physician regarding the

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nature and severity of an impairment is entitled to

The first is that the ALJ

I note, first, that,

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Stevenson v. Comm. of Social Security - 10-CV-607

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considerable deference, provided that it is supported by

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medically acceptable clinical and laboratory diagnostic

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techniques and is not inconsistent with other substantial

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evidence.

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To determine the weight to be given to a treating

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source's opinion, the ALJ should have considered several

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factors, including, significantly, the length of the

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treatment; relationship and the frequency of examination; the

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nature and extent of the treatment relationship; the degree

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to which the medical source supported his opinion; the degree

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of consistency between the opinion and the record as a whole;

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whether the opinion is given by a specialist; and other

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evidence which might be brought to the attention of the ALJ.

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Now, Dr. DiGiovanni is clearly a specialist, an

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orthopedic specialist.

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was the first and only time that Dr. DiGiovanni had seen the

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plaintiff and both his notes, his objective findings, and the

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overwhelming findings of other treating sources, including

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Dr. Oke, fail to support and are inconsistent with

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Dr. DiGiovanni's limited findings.

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administered, while showing spondylosis, showed no evidence

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of stenosis or other evidence of herniation.

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However, as far as I can see, this

The CAT scan that was

Dr. Oke's notes, including at Pages 240, 243, and

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257 to 265 reflect a very different picture.

He prescribed

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only Motrin, Aleve and Extra Strength Tylenol for the

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Stevenson v. Comm. of Social Security - 10-CV-607

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plaintiff; and I note that on February 15th, 2008, when he

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saw Dr. Oke, the plaintiff stated that he was feeling well.

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That is at the Administrative Transcript 240.

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Dr. DiGiovanni's findings are also inconsistent

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with an exam administered on January 22nd, 2007, by Dr. Puri,

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an exam which could prove and provide substantial evidence.

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So I find that the rejection of Dr. DiGiovanni's
opinions was properly explained and well-supported.

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The second point raised by the plaintiff concerns

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rejection of headaches, migraine headaches, as providing

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further limitation on the plaintiff's RFC.

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As I indicated previously, first of all, migraine

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headaches were not mentioned as a limiting disability on

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plaintiff's application.

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mentioned at the hearing when the plaintiff was asked about

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his limitations.

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the medical history portion of two of Dr. DiGiovanni's

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reports.

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having headaches to Dr. Oke at AT 240, 242, 257, 260, 262,

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and 264.

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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

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of argument, that the plaintiff does have headaches and does

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suffer from ongoing migraine headaches, there's no indication

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in the record that it has provided any limitation on his

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ability to perform work functions.

Plaintiff is able to

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Stevenson v. Comm. of Social Security - 10-CV-607

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read; he plays board games; and no one has said that he is

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unable to perform work functions because of his migraine

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headaches.

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Next, the third, and final question, concerns

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plaintiff's ability to perform the two jobs identified by the

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vocational expert in his testimony.

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backdrop, application of the grid or the Medical-Vocational

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Guidelines in this case suggest a finding of no disability

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and supports the vocational expert's opinions.

Of course the, as a

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Obviously, the plaintiff does suffer from

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non-exertional limitations, which could potentially erode the

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job base on which the Medical-Vocational Guidelines are

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based; and the ALJ, therefore, quite properly, sought the

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testimony of a vocational expert.

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It's obviously a proper means of fulfilling the

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agency's burden at step five and the use of hypothetical

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questions to develop the vocational expert's testimony is

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proper and permitted, provided, of course, that the

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hypothetical utilized comprehensively and precisely includes

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each physical and mental impairment of the claimant, except

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as construed by the ALJ.

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In this case, I find that the hypotheticals that

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were posed are defensible and are supported by substantial

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evidence in the record.

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I understand the argument that has been raised

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Stevenson v. Comm. of Social Security - 10-CV-607

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concerning the GED level associated with the two jobs in

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question; but I do not find that the GED 3 designation is

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inconsistent with the finding of the need for the plaintiff

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to be able to carry out only simple low-stress entry-level

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job with simple instructions.

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of my colleagues in Cross against Astrue, which is a case

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cited by defendant, where Judge Bianchini addressed the

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distinction between SVP and GED.

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The issue is addressed by one

And, in my view, the plaintiff is capable of

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performing the functions of the two jobs identified by the

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vocational expert.

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his mental condition as any -- as limiting his ability to

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work in his application.

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surprise that he was even being tested in that regard.

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has a high school degree and took mostly regular coursework.

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He has a full scale IQ of 81.

He, first of all, again, he did not list

His father and he expressed
He

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And, so, I find that there is no evidence

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suggesting that the plaintiff cannot meet the requirements of

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the two jobs identified by the vocational expert in this

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case.

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In sum, I find that the Administrative Law Judge in

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this case applied proper legal principles and his decision in

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the case is supported by substantial evidence.

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So I will issue an order granting defendant's
motion for judgment on the pleadings confirming the

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Stevenson v. Comm. of Social Security - 10-CV-607

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Commissioner's determination and dismissing plaintiff's

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complaint; and you'll get a short form order, which will

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attach to it the transcript of my decision.

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I appreciate from counsel the excellent briefing

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and oral argument today which has been very helpful for me,

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frankly; and I look forward to working with you in the

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future.

Have a good day.

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DEFENSE COUNSEL:

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SPEAKER 2:

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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