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)

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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 1 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. 2 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 3 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 (315)234-8546 2 THE COURT: 1 Thank you both for excellent arguments. 2 This is an interesting case that raises some challenging 3 issues. 4 I have before me a request for judicial review of 5 an adverse determination by the Acting Commissioner pursuant 6 to 42, United States Code, Section 405(g). 7 background, the plaintiff was born in December of 1957. 8 my math she is currently 58 years old. 9 10-inches in height and now weighs 190 pounds, although she 10 11 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 12 college education. 13 nursing assistant, or nurse's assistant, or CNA, and is 14 certificated in that field. 15 lives in a cabin with a friend. 16 includes as a CNA in various settings. 17 apparently was in an oncology unit of a hospital where she 18 worked for some three years, according to her statement to 19 Dr. Rigberg. 20 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 21 hearing testimony, she was fired. I looked at her hearing 22 testimony. 23 not able to definitively find a statement by her that she was 24 fired for lack of concentration. 25 that she is no longer able to concentrate sufficiently to I looked at the statement of Dr. Rigberg. I was She certainly did testify 3 1 work in that capacity. She smokes one pack per day of cigarettes. 2 That's 3 at 253 of the Administrative Transcript. Medically she 4 suffers from several diagnosed conditions. 5 leg pain. 6 RLS. 7 unknown etiology, back pain, left shoulder pain, depression 8 and anxiety, and ADHD. 9 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 10 does suffer from anemia. 11 bypass surgery; in 2008 a panniculectomy; in 2009 a breast 12 reduction; 2011 left rotator cuff shoulder surgery; and 2012 13 an operation to repair a hernia. 14 prescribed Effexor, Pramipexole, Alendronate, Adderall. 15 takes Ibuprofen for pain, Flexeril, and she took for 16 approximately one week Gabapentin. 17 In 2004 she underwent a gastric At various times she's been She Procedurally, the plaintiff applied for disability 18 insurance benefits and SSI payments in April of 2013, 19 alleging an onset date of January 1, 2005. 20 conducted by Administrative Law Judge Katherine Edgell on 21 July 25, 2014. 22 2014, finding that the plaintiff was not disabled at the 23 relevant times and, therefore, ineligible for benefits. 24 opinion became a final determination of the agency when on 25 March 6, 2015 the Social Security Administration Appeals The hearing was ALJ Edgell issued a decision on October 30, That 4 1 2 Council denied plaintiff's application for review. The Administrative Law Judge in her decision 3 applied the well-established five-step progressive test for 4 determining disability. 5 plaintiff was insured through March 31, 2007, concluded that 6 she was not engaged in any substantial gainful activity since 7 January 1, 2005. 8 9 At step one, after finding that the The Administrative Law Judge concluded that plaintiff suffers from several severe conditions at step two, 10 within the meaning of step two, including obesity, status 11 post gastric bypass surgery, status post panniculectomy and 12 breast reduction, cervical disc disease, tremors, affective 13 and anxiety versus attention disorders. 14 however, that none of those either individually or 15 collectively met or equaled the listed presumptively 16 disabling conditions in the Commissioner's regulation. 17 surveying the medical evidence in the record, the ALJ 18 concluded that plaintiff was capable of performing medium 19 work, including the ability to frequently lift and/or carry 20 25 pounds and occasionally lift and/or carry 50 pounds. 21 can sit, stand and/or walk for up to six hours in an 22 eight-hour workday. 23 occasional interaction with others, but she cannot do work 24 requiring frequent fine fingering due to tremors. 25 She concluded, After She She can do simple repetitive work with Applying that RFC with the aid of a vocational 5 1 expert testimony, the Administrative Law Judge concluded 2 after finding that the plaintiff was not able to perform her 3 past relevant work, that she is able to perform in two 4 positions that exist in sufficient numbers in the economy to 5 satisfy the requirements, including cleaner, laboratory 6 equipment and produce weigher. 7 that plaintiff was not disabled. 8 9 She, therefore, concluded My task, as you know, is fairly limited. I must determine whether correct legal principles were applied by 10 the Administrative Law Judge and whether her decision is 11 supported by substantial evidence. 12 term that is fairly broad. 13 evidence as a reasonable mind might accept as adequate to 14 support a conclusion. 15 Substantial evidence is a It is defined as such relevant The first argument raised or one of the principal 16 arguments raised was the argument that Dr. Lin should have 17 been recontacted. 18 significant gaps in a record, there's a duty of the 19 Administrative Law Judge, even when the claimant is 20 represented by counsel, to develop the record. 21 however, although I agree with plaintiff that it might be 22 interesting to find out what Dr. Lin meant and to have him 23 elaborate on the opinion referenced at page 245 of the 24 Administrative Transcript, the fact is there is no gap in the 25 record as plaintiff conceded. Unquestionably, if there are gaps, In this case, The lack of a medical source 6 1 statement from a treating source alone is not fatal. The agency ordered both a psychiatric and a 2 3 physical consultative exam of the plaintiff. The plaintiff 4 was found not to have any appreciable physical limitations. 5 She exhibited hand and finger dexterity that were intact and 6 grip strength 5/5 bilaterally. 7 Dr. Lin's notes support the ALJ's determination, pages 298 to 8 305. 9 agree that there is some indication that the plaintiff does As I indicated before, There is no reference to any significant tremors. I do 10 experience some tremors of unknown etiology. MRI testing 11 failed to reveal any neurological source of those tremors. 12 Dr. Ylagan certainly references the tremors but the ALJ did 13 account for the tremors to a degree by limiting the plaintiff 14 in the area of fine fingering. 15 was a failure of the duty to develop the record. So I don't find that there 16 In terms of Dr. Rigberg, clearly the Administrative 17 Law Judge by her own account provided or gave great weight to 18 the findings of Dr. Rigberg. 19 certain limitations, that if you were to take them as gospel 20 without looking beyond Dr. Rigberg, you might say that the 21 RFC findings should have included more of the limitations 22 spelled out by Dr. Rigberg. 23 that unskilled jobs require only the ability to understand 24 and carry out and remember simple instructions. 25 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 7 1 Dr. Rigberg's opinions and noted the lack of medical 2 treatment, the extent of plaintiff's daily activities, and 3 Dr. Lin's opinions, including at pages 298 and 305 of the 4 Administrative Transcript, in limiting the limitations -- 5 that's awkward, but limiting the limitations to those that 6 were included in the RFC finding. So I don't find error in not including verbatim the 7 8 limitations spelled out in Dr. Rigberg's opinion. The RFC is 9 supported by both Dr. Rigberg and Dr. Mescon's consultative 10 reports, as well as the medical evidence in the record, 11 including Dr. Lin's treatment notes and his statement 12 concerning no disability. 13 issue that is reserved to the Commissioner, certainly a 14 treating source saying that the plaintiff is not disabled is 15 entitled to at least some weight. And although that speaks to an The credibility analysis I don't find any fault 16 17 with. The plaintiff, really the only statements that I think 18 you could argue were discounted were plaintiff's statements 19 that her mind goes blank, at pages 35 and 36 of the 20 Administrative Transcript, and she cannot concentrate, at 21 page 44. 22 recognize that not getting treatment can be explained by 23 inability to afford treatment, and certainly the plaintiff 24 did say at one point in the hearing, that I think it was at 25 page 36, that she cannot afford psychiatric treatment, but But there is no indication, for example, that I 8 1 there is no indication in Dr. Lin's notes anywhere that he 2 recommended that she undergo psychiatric and psychological 3 treatment. 4 sufficed to address her mental limitations. It appears that the prescription of Effexor had Step five, the determination I find is proper. 5 The 6 hypothetical posed to the vocational expert tracked the RFC 7 finding, which I conclude is supported by substantial 8 evidence; and therefore, supports the step five 9 determination. So, in sum, although I agree with plaintiff that it 10 11 would be nice if it could have been explained in greater 12 detail, I recognize the volume that these Administrative Law 13 Judges deal with and we get twenty-page decisions instead of 14 fifty-page decisions, which we would probably get if they 15 went through and discussed every piece of evidence in the 16 detail that would be helpful to us, frankly, as judicial 17 officers. 18 So, in sum, I find that the decision is supported 19 by substantial evidence, correct legal principles were 20 applied, and I'll grant defendant's motion for judgment on 21 the pleadings, affirming the decision of the ALJ and 22 Commissioner, and dismissing plaintiff's complaint. 23 24 25 Thank you both for excellent, excellent presentations. MR. EAGLIN: Thank you, Your Honor. 9 1 2 MR. KAISER: * Thank you, Your Honor. * * 3 4 C E R T I F I C A T I O N 5 6 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 7 Realtime Court Reporter, in and for the United States 8 District Court for the Northern District of New York, 9 do hereby certify that pursuant to Section 753, Title 28, 10 United States Code, that the foregoing is a true and correct 11 transcript of the stenographically reported proceedings held 12 in the above-entitled matter and that the transcript page 13 format is in conformance with the regulations of the 14 Judicial Conference of the United States. 15 16 17 18 ________________________________ 19 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 20 21 22 23 24 25

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