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}

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. §' 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

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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
[phone]

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Decision - 16-cv-1420 - 8/22/2017
THE COURT:

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Thank you.

I have before me an

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application for judicial review of an adverse determination

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by the Acting Commissioner pursuant to 42, United States

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Code, Section 405(g) and 1383(c)(3).

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follows.

The background is as

The plaintiff was born in September of 1960.

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He is

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currently 56, almost 57 years old.

He was 54 years old at

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the time of the hearing in this matter, and 52 when he filed

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his application for benefits.

He is ambidextrous but

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left-handed, describes himself as left-handed.

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He is

separated and lives with his mother.
The evidence is somewhat equivocal regarding his

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level of education.

He graduated from college -- I'm sorry,

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high school.

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college courses; however, when he was examined by

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Dr. Hartman, he indicated that he had five years of college

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education and had achieved a doctorate in theology.

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at page 257 of the Administrative Transcript.

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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

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groundskeeper, a greenskeeper, and a yardman on a railroad.

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He also cuts lawns and was doing that at the time of the

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hearing.

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He suffers from multiple physical limitations,
including asthma, low vision, and he has undergone cataract

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Decision - 16-cv-1420 - 8/22/2017
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surgery in both eyes.

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December 2014 and right cataract surgery in January 2015.

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suffers from lumbar and cervical degenerative disc disease,

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arthritis, anxiety, mild obesity, and diabetes, which is

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controlled.

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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,

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although he has not undergone any significant mental health

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treatment.

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In terms of daily activities, he watches

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television, cooks, cleans, does laundry, can do some

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shopping, takes care of his personal hygiene.

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friend and he socializes with some family members.

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out alone.

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occasionally marijuana.

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He has one
He can go

He smokes a half a pack of cigarettes a day and

Plaintiff applied for Supplemental Security Income

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benefits on February 8, 2013, alleging an onset disability

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date of January 1, 2009.

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October 21, 2014 and continued on March 11, 2015 in order to

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obtain the testimony of a vocational expert.

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A hearing was conducted on

The hearing was conducted by Administrative Law

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Judge Dale Black-Pennington.

ALJ Black-Pennington issued a

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decision on May 20, 2015 finding that the plaintiff was not

Decision - 16-cv-1420 - 8/22/2017

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disabled at the relevant times and, therefore, ineligible for

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the benefits sought.

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the Agency on September 26, 2016 when the Social Security

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Administration Appeals Council denied plaintiff's application

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for review.

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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

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testified that he mows lawns, he was not engaged in

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substantial gainful activity and had not been since

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February 8, 2013.

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At step two she concluded that the plaintiff

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suffers from asthma, low vision, lumbar and cervical

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degenerative disc disease, arthritis, anxiety, and cannabis

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abuse, and rejected certain other alleged impairments as not

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being sufficiently severe at step two to meet the test.

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At step three she concluded that plaintiff's

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conditions did not meet or medically equal any of the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations.

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2.02, 2.04, 3.03, 12.06 and 12.09.

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She considered listings 1.04,

After surveying the medical evidence, ALJ

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Black-Pennington concluded that plaintiff retains the

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residual functional capacity, or RFC, to perform light work

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except that he is able to make simple work related decisions

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Decision - 16-cv-1420 - 8/22/2017
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and have superficial and transactional contact with

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co-workers and the general public.

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occasionally manage change to the workplace environment or

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tasks.

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vibrations and/or driving and motorized vehicles.

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claimant should avoid known respiratory irritants and

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requires the use of reading glasses.

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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

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the Medical-Vocational guidelines set forth in the

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regulations, or the Grids, were applied, a finding of no

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disability would be dictated by Rule 202.13.

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however, that plaintiff's inability to perform a full range

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of light work impaired the job base on which the Grids were

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located, requiring the testimony of a vocational expert.

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She concluded,

After hearing that testimony, she concluded that

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plaintiff retained the RFC to perform as a photocopy machine

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operator, a cashier II, and a mail clerk, and that there were

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sufficient jobs in the national economy to support a finding

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of no disability.

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As you know, my task is limited.

The scope of

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review that I must apply is deferential.

I must determine

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whether correct legal principles were applied by the ALJ and

Decision - 16-cv-1420 - 8/22/2017
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2

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the determination is supported by substantial evidence.
I agree with the Commissioner, I don't find that

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the RFC is at odds with the opinions of Dr. Hartman and the

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record as a whole.

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five require minimum contact with supervisors, in any event.

The three occupations identified in step

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L. Hoffman, I agree the opinion may be somewhat

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contradictory, but it was for the ALJ to determine how to

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rank the opinion of Dr. Hartman and L. Hoffman, and she did

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indicate in her opinion that she gave, while she gave great

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weight at the outset at page 29 to L. Hoffman, she gave

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little weight, at page 33, to the limitation about ability to

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respond to criticisms from supervisors and accept

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instructions, and that was his prerogative and well

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explained.

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So I note also that it is plaintiff's burden to

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establish his limitations through the RFC stage, and I don't

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find that that burden was carried.

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With regard to credibility, I've reviewed carefully

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SSR 96-7p on the Administrative Law Judge's credibility

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determination.

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of 2013 to October of 2014, there is no indication that he

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didn't avail himself of -- couldn't avail himself of free or

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low cost medical care.

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his records, including the time that he was insured, he had

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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

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Decision - 16-cv-1420 - 8/22/2017
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narcotic prescriptions, pain medication or modality, was not

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referred to a pain specialist.

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The record suggests that he attended an initial

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session of physical therapy and it was indicated that he was

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going to continue physical therapy, but there is no records

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to show that he did, in fact, continue on with the physical

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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

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that his claims concerning his limitations were not entirely

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credible.

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So I find that the Commissioner's determination is

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supported by substantial evidence and I will grant judgment

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on the pleadings to the defendant, affirm the Commissioner's

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finding, and dismiss plaintiff's complaint.

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Thank you both for excellent presentations.
*

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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