Bosket v. Colvin

Filing 18

ORDER that deft's motion for judgment on the pleadings is GRANTED; the 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 8/21/2014. (see)

Download PDF
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK HAROLD E. BOSKET, JR., Plaintiff, v. Civil Action No. 3:13-CV-1234 (DEP) CAROLYN W. COLVIN, Commissioner of Social Security, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN & GORTON 1500 E. Main Street P.O. Box 89 Endicott, NY 13761-0089 PETER A. GORTON, 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 BENIL ABRAHAM, 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 August 20, 2014, 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 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 (formerly, General Order No. 43) which was issued by the Hon. Ralph W. Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on September 12, 2003. Under that General Order an action such as this is considered procedurally, once issue has been joined, 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 ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is 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: August 21, 2014 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x HAROLD BOSKET, JR., Plaintiff, vs. 3:13-CV-1234 CAROLYN COLVIN, Commissioner of Social Security, Defendant. --------------------------------------------x Transcript of a Decision held by teleconference on August 20, 2014, 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: LACHMAN, GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ. For Defendant: U.S. SOCIAL SECURITY ADMINISTRATION 26 Federal Plaza New York, New York 10019 BY: BENIL ABRAHAM, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 15 1 (The following is an excerpt from the 2 telephone conference held on 8/20/14.) 3 (In Chambers, Counsel present via telephone.) 4 THE COURT: All right. I'll have to let that be 5 the last word. 6 excellent oral argument in this case, it's a very interesting 7 case and I found it to be very challenging, and I carefully 8 reviewed the record in the context of the parties' 9 submissions. 10 So I appreciate excellent briefings and By way of background, the plaintiff in this case 11 was born in December of 1971 and is currently 42 years of 12 age, he was 40 at the time of the administrative hearing in 13 this case. 14 and a physical impairment, specifically pars defect at L5 of 15 the lumbar spine. 16 lives with three of the four children. 17 young. 18 education classes, has a checkered education history and was 19 unable to secure his GED. 20 He suffers from a severe intellectual impairment He lives in Binghamton. He's married, he They're extremely He has a ninth grade education, attended special He last worked in 2010 for a trash company. Before 21 that he held various jobs including between 2000 and 2008 22 working for the Southern Tier Block, a construction 23 operation. 24 call in, or because he did call in, the record is somewhat 25 equivocal at page 42. He was fired from his last job because he did not JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 He has a history of alcohol and cocaine abuse in 2 the past although it appears to be in remission. 3 indicated, he did have a driver's license at one point but it 4 appears that he lost that driver's license due to some 5 driving while intoxicated charges. 6 As counsel There is not a great deal of treatment history in 7 the record. It consists primarily of consultative both 8 examining and nonexamining source consultative reports. 9 There is an MSW report from Carol Kuklis, November 17, 2010, 10 examining reports from Dr. Sara Long who is a PhD, and 11 Dr. Datta, both from May of 2011. 12 Harding, a state consultant from June 1, 2011, a physical RFC 13 from a state agency consultant B. Talbert from June 2011, and 14 a report of plaintiff's engaged orthopedic expert, Dr. Irwin 15 Rosenberg, from July of 2012. 16 There is a report by T. Procedurally, the plaintiff applied for 17 Supplemental Security Income and Disability Insurance 18 benefits in March of 2011 alleging an onset date of July 31, 19 2010. 20 denied, the hearing officer, or administrative law judge, F. 21 Patrick Flanagan, was appointed and conducted a hearing in 22 August of 2012. 23 September of 2012, denying the claim and finding that the 24 plaintiff was not disabled. 25 final determination of the agency when the Social Security After those, after those applications were initially Judge Flanagan rendered a decision in That determination became a JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 17 1 Administration appeals council denied review of that decision 2 on August 28, 2013. 3 In his decision, ALJ Flanagan found that the 4 plaintiff was insured, at least through September 2013, he 5 had not engaged in substantial gainful activity since his 6 alleged onset date. 7 impairments, borderline intellectual functioning as well as a 8 learning disability and pars defect at L5. 9 however, that none of the conditions either individually or 10 collectively met or equaled any of the listed presumptively 11 disabling disabilities in the regulations. 12 1.05 which relates to the spinal condition as well as 12.02 13 and 12.05 relative to his mental impairments. 14 He suffers at step 2 from two severe He found, He considered The ALJ then determined after surveying the 15 evidence that the plaintiff retains the residual functional 16 capacity or RFC to lift and/or carry 20 pounds occasionally, 17 10 pounds frequently, sit for six hours in an eight-hour day 18 and stand and/or walk for six hours in an eight-hour day. 19 found further that he is able to stoop, twist, and bend 20 frequently but not continuously; is able to push and pull 21 20 pounds occasionally and 10 pounds frequently; is able to 22 follow and understand simple directions and instructions; is 23 able to perform simple tasks independently; can maintain 24 attention and concentration; can maintain a regular schedule; 25 can learn new tasks; can relate adequately with others; and JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 He 18 1 can manage stress adequately, which is essentially the 2 ability to perform somewhat less than a full range of light 3 work. 4 The -- at step 4, the ALJ concluded that plaintiff 5 was unable to perform any of his past relevant work and 6 applying Rule 202.17 of the grids, concluding that the 7 impairments that plaintiff experiences do not significantly 8 affect the job base upon which the grids are predicated, 9 concluded no disability. 10 Addressing first the interesting issue of Section 11 12.05(C) of the -- of the listings, clearly the plaintiff 12 satisfies the IQ requirements here, also satisfies the 13 additional prong of having a further physical or mental 14 impairment that would qualify at step 2 of the analysis, that 15 would be his pars defect. 16 recognized though 12.05(C) in Talavera v. Astrue, also 17 requires consideration of whether the, whether the plaintiff 18 suffers from cognitive defects, and adaptive defects that is 19 at -- adaptive functioning defects. 20 pretty, what I would consider good analysis. 21 the plaintiff went through special education courses and 22 under Marmer and other cases, that weighs in favor of perhaps 23 finding a deficit in adaptive functioning, but as defendant 24 argues, there are many other indicators that the plaintiff is 25 able to function adequately. As the Second Circuit has The ALJ went through a The -- clearly He cares for three young JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 19 1 children by his own account and by accounts given to others 2 including Dr. Datta. 3 twice a week, does laundry once a week, he takes care of the 4 children, he showers, he dresses himself, he watches 5 television, he's able to rebuild PS2 or Play Station 2 6 computers. 7 to meet or -- any of the listings and that provides further 8 support, evidentiary support for that conclusion. Dr. Long 9 indicated that plaintiff has good social skills. Recounted He is able to cook twice a week, cleans Dr. Harding indicated that plaintiff is not able 10 also his daily activities and indicated that he is well 11 oriented, that is at page 290 and 291 of her report. 12 record also indicates at page 254 from Social Worker Kuklis 13 that the plaintiff is comfortable with his peers and in 14 social settings. 15 page 60 of the record that he believes he can work, that 16 there are some jobs out there he can perform. 17 He has worked. The In fact, he indicated at So, although I reviewed very carefully the Eastern 18 District's decision in Marmer, it appears that that is 19 significantly distinguishable. 20 Marmer were considerably more severe. 21 plaintiff suffered from -- have to give me a moment here -- 22 considerable defects that go beyond just the special 23 education that is evident here. 24 25 The impairments at Marmer, of In Marmer, the So I find that the Commissioner's decision concerning the listing 12.05(C) is supported by substantial JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 20 1 evidence. 2 reached the same conclusion or a court in general would have, 3 it is whether the decision reached is supported by 4 substantial evidence, substantial evidence of course being 5 defined as such relevant evidence as a reasonable mind might 6 accept as adequate to support a conclusion, and in this case, 7 the ALJ's decision is supported by substantial evidence on 8 that issue. 9 The issue really is not whether I would have Point two which we really didn't discuss was 10 whether or not the ALJ properly considered plaintiff to 11 suffer from a psychiatric impairment based on, primarily upon 12 his educational records, and I find that the plaintiff has 13 not carried his burden of demonstrating the existence of such 14 an impairment that would meet the requirements at step 2. 15 don't find any error in that regard. 16 the ALJ's decision is the RFC finding. 17 RFC is supported by substantial evidence, primarily in the 18 form of Dr. Datta's report when it comes to the physical 19 attributes and Dr. Long's report in that he properly chose 20 and explained why he chose Dr. Datta's report over 21 Dr. Rosenberg's. 22 Dr. Rosenberg has an area of expertise that perhaps Dr. Datta 23 does not, but Dr. Datta's report is certainly supported by 24 his findings after having examined the plaintiff. 25 Dr. Rosenberg's report seems to contradict even plaintiff's I Obviously pivotal to I conclude that that Both are nontreating sources. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 Granted 21 1 2 own testimony in several important regards. The -- turning to the argument that a 3 vocational expert's opinion should have been sought, I find 4 under SSR 85-15 and Bapp v. Bowen that the job base upon 5 which the grids are predicated were not sufficiently eroded 6 to require a vocational expert's testimony. 7 seem to be any per se rule in a borderline intellectual 8 functioning case that would require expert testimony, and the 9 DeLeon case from the Second Circuit that was relied upon by There does not 10 the plaintiff is materially distinguishable. It involved a 11 plaintiff with cerebral palsy with a psychiatric disorder, 12 epilepsy with organic brain syndrome as well as borderline 13 intellectual functioning and physical problems and 14 deformities, much more serious case than Mr. Bosket presents. 15 So having reviewed carefully the record, I 16 conclude that the Commissioner's decision is supported by 17 substantial evidence and resulted from the application of 18 proper legal principles. 19 I thank you both for excellent arguments. 20 will grant judgment on the pleadings to the defendant and 21 issue an order shortly memorializing this decision. 22 you both and have a great day. I 23 24 MR. ABRAHAM: Thank you, your Honor. (Proceedings adjourned, 10:40 a.m.) 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 Thank 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official 4 Realtime Court Reporter, in and for the United States 5 District Court for the Northern District of New York, DO 6 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 7 States Code, that the foregoing is a true and correct 8 transcript of the stenographically reported proceedings held 9 in the above-entitled matter and that the transcript page 10 format is in conformance with the regulations of the Judicial 11 Conference of the United States. 12 13 Dated this 20th day of August, 2014. 14 15 16 /S/ JODI L. HIBBARD 17 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 18 19 20 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?