Fletcher v. Commissioner of Social Security

Filing 12

ORDER that deft's motion for judgment on the pleading is GRANTED; the Acting Commissioner's determination that the pltf 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 pltf's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 12/20/2016. (see)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK DALE WILLIAM FLETCHER, Plaintiff, v. Civil Action No. 1:16-CV-129 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF OFFICE OF PETER M. MARGOLIUS 7 Howard St. Catskill, NY 12414 PETER M. MARGOLIUS, 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 CHIEF U.S. MAGISTRATE JUDGE PRASHANT TAMASKAR, ESQ. DAVID L. BROWN, ESQ. Special Assistant U.S. Attorneys ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Acting Commissioner of Social Security, pursuant to 42 U.S.C. ยง' 405(g) and 1383(c)(3) are cross-motions for judgment on the pleadings. 1 Oral argument was heard in connection with those motions on December 19, 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 Acting 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 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 1) Defendant=s motion for judgment on the pleadings is GRANTED. 2) The Acting 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: December 20, 2016 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x DALE WILLIAM FLETCHER, Plaintiff, vs. 1:16-CV-129 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. --------------------------------------------x Transcript of a Decision held on December 19, 2016, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: OFFICE OF PETER M. MARGOLIUS Attorneys at Law 7 Howard Street Catskill, New York 12414 BY: PETER M. MARGOLIUS, ESQ. JANICE CAMMARATO For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: PRASHANT TAMASKAR, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 10 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 All right, thank you both for excellent 3 presentations. I have before me a request for judicial 4 review of an adverse determination by the Commissioner 5 pursuant to 42 United States Code Sections 405(g) and 6 1383(c)(3). The background is as follows: 7 Plaintiff was born 8 in March of 1956 and is currently 60 years old, was 58 years 9 old at the time of the hearing in this matter, and 56 years 10 old at the time of the alleged onset of his disability. The 11 plaintiff is divorced, lives alone in Red Hook, New York. 12 has -- there is equivocal testimony as to whether or not he 13 has an associate's degree in agriculture engineering. 14 told Dr. Cohen no, at 361, he testified yes at page 34 of the 15 administrative transcript. 16 2012. 17 working on a farm operating and repairing heavy equipment and 18 also picking up milk with a truck and testing milk. 19 served in several other positions, they're listed at page 203 20 of the administrative transcript. 21 similar categories of past relevant work. He He He last worked in September of He left that position due to a seizure. He was He has They generally fall into Medically, plaintiff suffered a traumatic brain 22 23 injury in 2007 when he fell while under the influence of 24 alcohol in a creek and hit his head on some rocks. 25 page 427. That's at He received disability for a closed period from JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 11 1 May 2007 to April 30th, 2009. That's at page 59 through 65 2 of the administrative transcript. 3 of 2009, and worked until 2012 as I indicated. 4 second fall in July of 2012 and suffered a suspected 5 concussion. 6 intracranial injury although it did show evidence of a prior 7 injury. 8 although evidence of a lytic lesion. 9 showed no thoracic injury. He resumed working in May He suffered a The CT scan of his head showed no acute CT scan of the cervical spine showed no fracture, CT scan of the chest Plaintiff was in the hospital at 10 that time for four days and he was discharged to alcohol 11 rehabilitation. 12 any seizures since that time. 13 K-e-p-p-r-a, to control his seizures. 14 According to the notes, he's not undergone He's been on Keppra, Plaintiff suffers from a history of alcohol abuse. 15 He lost his driver's license due to a driving while 16 intoxicated conviction. 17 as to whether he still consumes alcohol. 18 page 43 that he consumed one beer at a Superbowl party but he 19 has not otherwise consumed alcohol since 2007. 20 however -- in April of 2013 he told Dr. Cohen that he drinks 21 beer four times per week, that's at page 362. 22 not undergone any medical health treatment, and as 23 defendant's counsel noted, plaintiff testified at page 37 and 24 also told Dr. Cohen at page 361 that the reason he is 25 currently unemployed is lack of transportation. Testimony and evidence is equivocal JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 He testified at On April 13, Plaintiff has 12 1 Historically, as I indicated, plaintiff had a prior 2 period of -- closed period of disability benefits. Insofar 3 as this matter is concerned, plaintiff applied on January 31, 4 2013, for Title II and Title XVI benefits, alleging an onset 5 date of July 20, 2012. 6 2014, by Administrative Law Judge Vincent Cascio. 7 issued a decision on June 26, 2014, in which he found that 8 the defendant -- the plaintiff, I'm sorry, was not disabled 9 at the relevant times. A hearing was conducted on April 15, ALJ Cascio That became a final determination of 10 the agency on December 9, 2015, when the Social Security 11 Administration Appeals Council denied plaintiff's application 12 for review. 13 In his decision, ALJ Cascio applied the five-step 14 sequential well-known test for determining disability; at 15 step one, concluded plaintiff is not engaged in substantial 16 gainful activity since his alleged onset date. 17 At step two, he found that the plaintiff suffers 18 from severe impairments, including traumatic brain injury and 19 a seizure disorder. 20 At step three, however, ALJ Cascio concluded that 21 plaintiff did not meet or medically equal any of the listed 22 presumptively disabling conditions set forth in the 23 regulations. 24 25 At step four, applying an RFC finding as follows: The -- plaintiff retains the functional capacity to perform a JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 13 1 full range of work, except -- at all exertional levels except 2 claimant can have no exposure to unprotected heights or 3 hazardous machines, cannot operate motor vehicles. 4 he can understand, remember, and carry out simple unskilled 5 work and can frequently interact with supervisors, coworkers, 6 and the general public. Further, Applying that RFC at step four, ALJ Cascio 7 8 concluded that plaintiff cannot perform his past relevant 9 work as a farmworker, or as a farm equipment mechanic, both 10 of which are skilled positions. At step five, ALJ Cascio concluded that the job 11 12 base on which the grids or Medical Vocational Guidelines are 13 predicated were compromised by plaintiff's nonexertional 14 limitations, and after receiving testimony from a vocational 15 expert, concluded that the grids could be used as a framework 16 for finding disability and concluded that the defendant -- 17 sorry, the plaintiff, was not disabled. The vocational expert testified that the plaintiff 18 19 would be able to perform several jobs that are available in 20 the national, regional economy including as a packer, hand, 21 as an assembler, small products, and a final assembler, and 22 concluded that plaintiff was not disabled at the relevant 23 times. 24 25 As you know, my task is limited, the scope of review is extremely deferential. I must determine whether JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 14 1 correct legal principles were applied and the decision is 2 supported by substantial evidence. 3 In my view, the residual functional capacity is 4 supported. I agree with the Acting Commissioner's counsel 5 that the fact that the administrative law judge has given 6 great weight to opinions by the examining consultative 7 psychologist Dr. Cohen and also the nonexamining expert 8 Dr. Tatar does not mean that he accepts all of the opinions 9 that they've rendered verbatim. He has looked at, obviously, 10 and stated in his decision the totality of the available 11 medical evidence. 12 supports the RFC finding as does Dr. Tatar's, and as does -- 13 do the opinions of the Department of Health through the 14 Belvedere Health Services at 419 to 420 and 438. 15 Dr. Cohen's medical source statement The one area of concern, of course, is Dr. Tatar's 16 statement that plaintiff's condition has not been the subject 17 of medical improvement, and I think that that alone is not 18 sufficient to dictate a different result because it really 19 doesn't provide context. 20 doesn't flesh out what type of medical improvement has 21 occurred and what limitations remain. 22 I know that that's at page 374. It Again, I think that the RFC finding is well 23 supported by Dr. Cohen's opinions. I understand what counsel 24 is arguing about the fact that the opinions might not be 25 supported by the results of the examination but essentially JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 15 1 I'm being asked to make a medical opinion to override the 2 opinion of the expert, and I'm not prepared to do that. 3 So, I also conclude that the ALJ properly rejected 4 plaintiff's statements concerning his limitations, and 5 explained that rejection thoroughly at -- in his opinion at 6 pages 19 and 20. 7 So for these reasons, I will grant judgment on the 8 pleadings to the defendant, and order dismissal of 9 plaintiff's complaint. 10 11 Thank you for excellent presentations, hope everyone has a happy holiday, and new year. 12 MS. CAMMARATO: 13 MR. TAMASKAR: 14 Thank you. Thank you, your Honor. Thank you, your Honor. (Proceedings Adjourned, 2:24 p.m.) 15 16 17 18 19 20 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 19th day of December, 2016. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?