Castillo v. Colvin

Filing 18

ORDER: Ordered that Defendant's motion for judgment on the pleadings is Granted. The Commissioner's determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is Affirmed. The clerk is respectfully directed to enter judgment, based upon this determination, Dismissing plaintiff's complaint in its entirety.Signed by Magistrate Judge David E. Peebles on 02/12/2016. (hmr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

ROSEMARIE CASTILLO,
Plaintiff,
v.

Civil Action No.
1:15-CV-0522 (DEP)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OLINSKY LAW GROUP
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202

HOWARD OLINSKY, ESQ.
PAUL B. EAGLIN, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

FERGUS J. KAISER, ESQ.
Special Assistant U.S. Attorney

ORDER
Currently pending before the court in this action, in which plaintiff
seeks judicial review of an adverse administrative determination by the
Commissioner of Social Security, pursuant to 42 U.S.C. ' 405(g), are
cross-motions for judgment on the pleadings. 1 Oral argument was heard in
connection with those motions on February 9, 2016, during a telephone
conference conducted on the record. 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 this appeal.
After due deliberation, and based upon the court=s oral bench
decision, which has been transcribed, is attached to this order, and is
incorporated herein by reference, it is hereby
ORDERED, as follows:
1)

Defendant=s motion for judgment on the pleadings is

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This matter, which is before me on consent of the parties pursuant to 28
U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General
Order No. 18. Under that General Order once issue has been joined, an action such as
this is considered procedurally, 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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GRANTED.
2)

The Commissioner=s determination that the 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 respectfully directed to enter judgment, based upon

this determination, DISMISSING plaintiff=s complaint in its entirety.

Dated:

February 12, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
ROSEMARIE CASTILLO,
Plaintiff,
vs.

1:15-CV-522

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
--------------------------------------------x
Decision - February 9, 2016
James Hanley Federal Building, Syracuse, New York
HONORABLE DAVID E. PEEBLES,
United States Magistrate-Judge, Presiding

A P P E A R A N C E S (by telephone)
For Plaintiff:

OLINSKY LAW GROUP
Attorneys at Law
300 S. State Street
Syracuse, New York 13202
BY: PAUL B. EAGLIN, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza
New York, New York 10278
BY: FERGUS J. KAISER, ESQ.

Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
[phone]

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THE COURT:

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Thank you both for excellent arguments.

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This is an interesting case that raises some challenging

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issues.

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I have before me a request for judicial review of

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an adverse determination by the Acting Commissioner pursuant

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to 42, United States Code, Section 405(g).

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background, the plaintiff was born in December of 1957.

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my math she is currently 58 years old.

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10-inches in height and now weighs 190 pounds, although she

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By way of
By

She is 4-foot

weighed 140 pounds when she last worked.
She has a high school diploma and one year of

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college education.

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nursing assistant, or nurse's assistant, or CNA, and is

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certificated in that field.

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lives in a cabin with a friend.

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includes as a CNA in various settings.

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apparently was in an oncology unit of a hospital where she

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worked for some three years, according to her statement to

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Dr. Rigberg.

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She has undergone training as a certified

She is right-handed, drives, and
Her past relevant work
The last one

That's at page 248.

She stopped working in 2005.

According to her

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hearing testimony, she was fired.

I looked at her hearing

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testimony.

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not able to definitively find a statement by her that she was

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fired for lack of concentration.

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that she is no longer able to concentrate sufficiently to

I looked at the statement of Dr. Rigberg.

I was

She certainly did testify

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work in that capacity.
She smokes one pack per day of cigarettes.

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That's

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at 253 of the Administrative Transcript.

Medically she

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suffers from several diagnosed conditions.

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leg pain.

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RLS.

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unknown etiology, back pain, left shoulder pain, depression

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and anxiety, and ADHD.

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that seems to be well controlling her mental condition.

She suffers from

She reports she also has restless leg syndrome, or

She suffers from hand tremors and arm tremors of

She's been Effexor since 1995 and
She

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does suffer from anemia.

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bypass surgery; in 2008 a panniculectomy; in 2009 a breast

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reduction; 2011 left rotator cuff shoulder surgery; and 2012

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an operation to repair a hernia.

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prescribed Effexor, Pramipexole, Alendronate, Adderall.

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takes Ibuprofen for pain, Flexeril, and she took for

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approximately one week Gabapentin.

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In 2004 she underwent a gastric

At various times she's been
She

Procedurally, the plaintiff applied for disability

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insurance benefits and SSI payments in April of 2013,

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alleging an onset date of January 1, 2005.

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conducted by Administrative Law Judge Katherine Edgell on

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July 25, 2014.

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2014, finding that the plaintiff was not disabled at the

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relevant times and, therefore, ineligible for benefits.

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opinion became a final determination of the agency when on

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March 6, 2015 the Social Security Administration Appeals

The hearing was

ALJ Edgell issued a decision on October 30,

That

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Council denied plaintiff's application for review.
The Administrative Law Judge in her decision

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applied the well-established five-step progressive test for

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determining disability.

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plaintiff was insured through March 31, 2007, concluded that

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she was not engaged in any substantial gainful activity since

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January 1, 2005.

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At step one, after finding that the

The Administrative Law Judge concluded that
plaintiff suffers from several severe conditions at step two,

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within the meaning of step two, including obesity, status

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post gastric bypass surgery, status post panniculectomy and

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breast reduction, cervical disc disease, tremors, affective

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and anxiety versus attention disorders.

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however, that none of those either individually or

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collectively met or equaled the listed presumptively

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disabling conditions in the Commissioner's regulation.

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surveying the medical evidence in the record, the ALJ

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concluded that plaintiff was capable of performing medium

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work, including the ability to frequently lift and/or carry

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25 pounds and occasionally lift and/or carry 50 pounds.

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can sit, stand and/or walk for up to six hours in an

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eight-hour workday.

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occasional interaction with others, but she cannot do work

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requiring frequent fine fingering due to tremors.

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She concluded,

After

She

She can do simple repetitive work with

Applying that RFC with the aid of a vocational

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expert testimony, the Administrative Law Judge concluded

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after finding that the plaintiff was not able to perform her

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past relevant work, that she is able to perform in two

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positions that exist in sufficient numbers in the economy to

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satisfy the requirements, including cleaner, laboratory

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equipment and produce weigher.

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that plaintiff was not disabled.

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She, therefore, concluded

My task, as you know, is fairly limited.

I must

determine whether correct legal principles were applied by

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the Administrative Law Judge and whether her decision is

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supported by substantial evidence.

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term that is fairly broad.

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evidence as a reasonable mind might accept as adequate to

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support a conclusion.

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Substantial evidence is a

It is defined as such relevant

The first argument raised or one of the principal

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arguments raised was the argument that Dr. Lin should have

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been recontacted.

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significant gaps in a record, there's a duty of the

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Administrative Law Judge, even when the claimant is

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represented by counsel, to develop the record.

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however, although I agree with plaintiff that it might be

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interesting to find out what Dr. Lin meant and to have him

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elaborate on the opinion referenced at page 245 of the

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Administrative Transcript, the fact is there is no gap in the

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record as plaintiff conceded.

Unquestionably, if there are gaps,

In this case,

The lack of a medical source

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statement from a treating source alone is not fatal.
The agency ordered both a psychiatric and a

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physical consultative exam of the plaintiff.

The plaintiff

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was found not to have any appreciable physical limitations.

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She exhibited hand and finger dexterity that were intact and

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grip strength 5/5 bilaterally.

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Dr. Lin's notes support the ALJ's determination, pages 298 to

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305.

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agree that there is some indication that the plaintiff does

As I indicated before,

There is no reference to any significant tremors.

I do

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experience some tremors of unknown etiology.

MRI testing

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failed to reveal any neurological source of those tremors.

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Dr. Ylagan certainly references the tremors but the ALJ did

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account for the tremors to a degree by limiting the plaintiff

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in the area of fine fingering.

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was a failure of the duty to develop the record.

So I don't find that there

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In terms of Dr. Rigberg, clearly the Administrative

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Law Judge by her own account provided or gave great weight to

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the findings of Dr. Rigberg.

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certain limitations, that if you were to take them as gospel

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without looking beyond Dr. Rigberg, you might say that the

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RFC findings should have included more of the limitations

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spelled out by Dr. Rigberg.

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that unskilled jobs require only the ability to understand

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and carry out and remember simple instructions.

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Security ruling 85-15 sets that out.

Dr. Rigberg's opinions contain

But first of all, it's noted

Social

And the ALJ went beyond

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Dr. Rigberg's opinions and noted the lack of medical

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treatment, the extent of plaintiff's daily activities, and

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Dr. Lin's opinions, including at pages 298 and 305 of the

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Administrative Transcript, in limiting the limitations --

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that's awkward, but limiting the limitations to those that

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were included in the RFC finding.
So I don't find error in not including verbatim the

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limitations spelled out in Dr. Rigberg's opinion.

The RFC is

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supported by both Dr. Rigberg and Dr. Mescon's consultative

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reports, as well as the medical evidence in the record,

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including Dr. Lin's treatment notes and his statement

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concerning no disability.

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issue that is reserved to the Commissioner, certainly a

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treating source saying that the plaintiff is not disabled is

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entitled to at least some weight.

And although that speaks to an

The credibility analysis I don't find any fault

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with.

The plaintiff, really the only statements that I think

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you could argue were discounted were plaintiff's statements

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that her mind goes blank, at pages 35 and 36 of the

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Administrative Transcript, and she cannot concentrate, at

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page 44.

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recognize that not getting treatment can be explained by

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inability to afford treatment, and certainly the plaintiff

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did say at one point in the hearing, that I think it was at

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page 36, that she cannot afford psychiatric treatment, but

But there is no indication, for example, that I

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there is no indication in Dr. Lin's notes anywhere that he

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recommended that she undergo psychiatric and psychological

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treatment.

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sufficed to address her mental limitations.

It appears that the prescription of Effexor had

Step five, the determination I find is proper.

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The

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hypothetical posed to the vocational expert tracked the RFC

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finding, which I conclude is supported by substantial

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evidence; and therefore, supports the step five

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determination.
So, in sum, although I agree with plaintiff that it

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would be nice if it could have been explained in greater

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detail, I recognize the volume that these Administrative Law

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Judges deal with and we get twenty-page decisions instead of

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fifty-page decisions, which we would probably get if they

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went through and discussed every piece of evidence in the

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detail that would be helpful to us, frankly, as judicial

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officers.

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So, in sum, I find that the decision is supported

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by substantial evidence, correct legal principles were

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applied, and I'll grant defendant's motion for judgment on

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the pleadings, affirming the decision of the ALJ and

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Commissioner, and dismissing plaintiff's complaint.

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Thank you both for excellent, excellent
presentations.
MR. EAGLIN:

Thank you, Your Honor.

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MR. KAISER:
*

Thank you, Your Honor.
*

*

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C E R T I F I C A T I O N

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I, EILEEN MCDONOUGH, RPR, CRR, Federal Official

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Realtime Court Reporter, in and for the United States

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District Court for the Northern District of New York,

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do hereby certify that pursuant to Section 753, Title 28,

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United States Code, that the foregoing is a true and correct

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transcript of the stenographically reported proceedings held

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in the above-entitled matter and that the transcript page

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format is in conformance with the regulations of the

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Judicial Conference of the United States.

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________________________________

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EILEEN MCDONOUGH, RPR, CRR
Federal Official Court Reporter

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