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)

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]

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
[phone]