Twiss v. Commissioner of Social Security

Filing 16

ORDER: It is Ordered that Defendants # 13 Motion for Judgment on the Pleadings is GRANTED, Plaintiff's # 12 Motion for Judgment on the Pleadings is DENIED, the Acting Commissioners determination that the plaintiff was not disabled at the rel evant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. Judgment is entered in favor of the Commissioner of Social Security and Plaintiff Michael R. Twisss # 1 Complaint is DISMISSED in its entirety. Signed by Magistrate Judge David E. Peebles on 8/30/2017. (jmb) {Transcript of the 8/22/2017 Decision attached}

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK MICHAEL R. TWISS, Plaintiff, v. Civil Action No. 1:16-CV-1420 (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. GRANT JAQUITH Acting United States Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 ELIZABETH D. ROTHSTEIN, ESQ. Special Assistant U.S. Attorney DAVID E. PEEBLES CHIEF U.S. MAGISTRATE JUDGE 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), 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 22, 2017, 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) 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. 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. 1 2 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff=s complaint in its entirety. Dated: August 30, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------x MICHAEL R. TWISS, Plaintiff, vs. 16-CV-1420 COMMISSIONER OF SOCIAL SECURITY, Defendant. ----------------------------------------------------x Decision - August 22, 2017 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: OFFICE OF PETER M. MARGOLIUS Attorneys at Law 7 Howard Street Catskill, New York 12414 BY: PETER M. MARGOLIUS, ESQ. JANICE CAMMARATO, Paralegal For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 26 Federal Plaza New York, New York 10278 BY: ELIZABETH D. ROTHSTEIN, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 2 Decision - 16-cv-1420 - 8/22/2017 THE COURT: 1 Thank you. I have before me an 2 application for judicial review of an adverse determination 3 by the Acting Commissioner pursuant to 42, United States 4 Code, Section 405(g) and 1383(c)(3). 5 follows. The background is as The plaintiff was born in September of 1960. 6 He is 7 currently 56, almost 57 years old. He was 54 years old at 8 the time of the hearing in this matter, and 52 when he filed 9 his application for benefits. He is ambidextrous but 10 left-handed, describes himself as left-handed. 11 He is separated and lives with his mother. The evidence is somewhat equivocal regarding his 12 13 level of education. He graduated from college -- I'm sorry, 14 high school. 15 college courses; however, when he was examined by 16 Dr. Hartman, he indicated that he had five years of college 17 education and had achieved a doctorate in theology. 18 at page 257 of the Administrative Transcript. 19 be a certified electrician. At his hearing he testified that he took some That is He claims to He has a driver's license. In the past he has worked as a newspaper carrier, a 20 21 groundskeeper, a greenskeeper, and a yardman on a railroad. 22 He also cuts lawns and was doing that at the time of the 23 hearing. 24 25 He suffers from multiple physical limitations, including asthma, low vision, and he has undergone cataract 3 Decision - 16-cv-1420 - 8/22/2017 1 surgery in both eyes. 2 December 2014 and right cataract surgery in January 2015. 3 suffers from lumbar and cervical degenerative disc disease, 4 arthritis, anxiety, mild obesity, and diabetes, which is 5 controlled. 6 7 8 9 He underwent left cataract surgery in He For his physical ailments his medications are limited primarily to Ibuprofen, Flexeril and Tylenol. Mentally, according to Dr. Hartman, he suffers from major depressive disorder moderate, and anxiety disorder, 10 although he has not undergone any significant mental health 11 treatment. 12 In terms of daily activities, he watches 13 television, cooks, cleans, does laundry, can do some 14 shopping, takes care of his personal hygiene. 15 friend and he socializes with some family members. 16 out alone. 17 occasionally marijuana. 18 He has one He can go He smokes a half a pack of cigarettes a day and Plaintiff applied for Supplemental Security Income 19 benefits on February 8, 2013, alleging an onset disability 20 date of January 1, 2009. 21 October 21, 2014 and continued on March 11, 2015 in order to 22 obtain the testimony of a vocational expert. 23 A hearing was conducted on The hearing was conducted by Administrative Law 24 Judge Dale Black-Pennington. ALJ Black-Pennington issued a 25 decision on May 20, 2015 finding that the plaintiff was not Decision - 16-cv-1420 - 8/22/2017 4 1 disabled at the relevant times and, therefore, ineligible for 2 the benefits sought. 3 the Agency on September 26, 2016 when the Social Security 4 Administration Appeals Council denied plaintiff's application 5 for review. 6 7 8 That became a final determination of In her decision Judge Black-Pennington applied the five-step sequential test for determining disability. At step one concluded that although plaintiff 9 testified that he mows lawns, he was not engaged in 10 substantial gainful activity and had not been since 11 February 8, 2013. 12 At step two she concluded that the plaintiff 13 suffers from asthma, low vision, lumbar and cervical 14 degenerative disc disease, arthritis, anxiety, and cannabis 15 abuse, and rejected certain other alleged impairments as not 16 being sufficiently severe at step two to meet the test. 17 At step three she concluded that plaintiff's 18 conditions did not meet or medically equal any of the listed 19 presumptively disabling conditions set forth in the 20 Commissioner's regulations. 21 2.02, 2.04, 3.03, 12.06 and 12.09. 22 She considered listings 1.04, After surveying the medical evidence, ALJ 23 Black-Pennington concluded that plaintiff retains the 24 residual functional capacity, or RFC, to perform light work 25 except that he is able to make simple work related decisions 5 Decision - 16-cv-1420 - 8/22/2017 1 and have superficial and transactional contact with 2 co-workers and the general public. 3 occasionally manage change to the workplace environment or 4 tasks. 5 vibrations and/or driving and motorized vehicles. 6 claimant should avoid known respiratory irritants and 7 requires the use of reading glasses. 8 9 10 11 The claimant is able to He should avoid heavy machinery, unprotected heights, The Applying that residual functional capacity, the ALJ Black-Pennington concluded that plaintiff was not capable of performing any of his past relevant work. She then proceeded to step five and noted that if 12 the Medical-Vocational guidelines set forth in the 13 regulations, or the Grids, were applied, a finding of no 14 disability would be dictated by Rule 202.13. 15 however, that plaintiff's inability to perform a full range 16 of light work impaired the job base on which the Grids were 17 located, requiring the testimony of a vocational expert. 18 She concluded, After hearing that testimony, she concluded that 19 plaintiff retained the RFC to perform as a photocopy machine 20 operator, a cashier II, and a mail clerk, and that there were 21 sufficient jobs in the national economy to support a finding 22 of no disability. 23 As you know, my task is limited. The scope of 24 review that I must apply is deferential. I must determine 25 whether correct legal principles were applied by the ALJ and Decision - 16-cv-1420 - 8/22/2017 1 2 6 the determination is supported by substantial evidence. I agree with the Commissioner, I don't find that 3 the RFC is at odds with the opinions of Dr. Hartman and the 4 record as a whole. 5 five require minimum contact with supervisors, in any event. The three occupations identified in step 6 L. Hoffman, I agree the opinion may be somewhat 7 contradictory, but it was for the ALJ to determine how to 8 rank the opinion of Dr. Hartman and L. Hoffman, and she did 9 indicate in her opinion that she gave, while she gave great 10 weight at the outset at page 29 to L. Hoffman, she gave 11 little weight, at page 33, to the limitation about ability to 12 respond to criticisms from supervisors and accept 13 instructions, and that was his prerogative and well 14 explained. 15 So I note also that it is plaintiff's burden to 16 establish his limitations through the RFC stage, and I don't 17 find that that burden was carried. 18 With regard to credibility, I've reviewed carefully 19 SSR 96-7p on the Administrative Law Judge's credibility 20 determination. 21 of 2013 to October of 2014, there is no indication that he 22 didn't avail himself of -- couldn't avail himself of free or 23 low cost medical care. 24 his records, including the time that he was insured, he had 25 extremely modest treatment, did not request any kind of While the plaintiff was not insured from July In any event, if you look globally at 7 Decision - 16-cv-1420 - 8/22/2017 1 narcotic prescriptions, pain medication or modality, was not 2 referred to a pain specialist. 3 The record suggests that he attended an initial 4 session of physical therapy and it was indicated that he was 5 going to continue physical therapy, but there is no records 6 to show that he did, in fact, continue on with the physical 7 therapy. Again, the burden is on the plaintiff to establish 8 9 disability, and the ALJ properly considered the record as a 10 whole, including plaintiff's daily activities, and concluded 11 that his claims concerning his limitations were not entirely 12 credible. 13 So I find that the Commissioner's determination is 14 supported by substantial evidence and I will grant judgment 15 on the pleadings to the defendant, affirm the Commissioner's 16 finding, and dismiss plaintiff's complaint. 17 18 19 20 21 22 23 24 25 Thank you both for excellent presentations. * * * C E R T I F I C A T I O N I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. ________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter

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