Bates v. Commissioner of Social Security

Filing 15

ORDER: that Defendant's 11 motion for judgment on the pleadings is Granted; that 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 and the clerk is respectfully directed to enter judgment, based upon this determination, Dismissing plaintiff's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 10/14/2020. (hmr)

Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 1 of 15

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
MARK B.,
v.

Plaintiff,

Civil Action No.
3:19-CV-1062 (DEP)

COMMISSIONER OF SOCIAL,
SECURITY,
Defendant.
__________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
DOLSON LAW OFFICE
126 N. Salina St., Suite 3B
Syracuse, NY 13202

STEVEN DOLSON, ESQ.

FOR DEFENDANT
HON. ANTOINETTE L. BACON
Acting United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198

JOSHUA L. KERSHNER, ESQ.
Special Assistant U.S. Attorney

DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE
ORDER
Currently pending before the court in this action, in which plaintiff

Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 2 of 15

seeks judicial review of an adverse administrative determination by the
Commissioner of Social Security, pursuant to 42 U.S.C. §§ 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 October 8, 2020,
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
ORDERED, as follows:
1)

Defendant=s motion for judgment on the pleadings is

GRANTED.

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

Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 3 of 15

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:

October 14, 2020
Syracuse, NY

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Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 4 of 15

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------------------------------x
MARK B.,
Plaintiff,
vs.

3:19-CV-1062

Commissioner of Social Security,
Defendant.
-------------------------------------------------------x
DECISION - October 8, 2020
HONORABLE DAVID E. PEEBLES
United States Magistrate Judge, Presiding

APPEARANCES (by telephone)
For Plaintiff:

STEVEN R. DOLSON
Attorney at Law
126 North Salina Street
Syracuse, NY 13202

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
26 Federal Plaza
New York, New York 10278
BY: JOSHUA L. KERSHNER, ESQ.

Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
[phone]

Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 5 of 15

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THE COURT:

All right.

Thank you both.

Let me

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begin by congratulating counsel for excellent presentations.

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I found this case to be fascinating.

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issue that's been raised but a complicated one, nonetheless.

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It's a very narrow

The plaintiff has commenced this proceeding

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pursuant to 42, United States Code, Sections 405(g) and

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1383(c)(3) to challenge an adverse determination by the

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Commissioner of Social Security finding that he was not

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disabled at the relevant times and, therefore, ineligible for

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the benefits which he sought.

The background is as follows.

The plaintiff was born in November of 1966.

He is

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currently 53 years of age.

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alleged onset of his disability in October of 2015.

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Plaintiff stands approximately 5-foot-9 or 5-foot-10-inches

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in height and weighs at various times between 183 and

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200 pounds.

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Plaintiff was 49 years old at the

Plaintiff lives in Norwich in a house with his

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wife, who he married in November of 2016, and two

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stepdaughters who were 17 and 18 years of age in June of

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2018, and according to my calculations, they are now 19 and

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20, respectively.

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Plaintiff has a high school diploma and an Associate's Degree

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in Business Administration.

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does drive.

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Plaintiff also has two older sons.

He has a driver's license and

Plaintiff stopped working in October of 2015.

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Prior to that time he worked as a supervisor in

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pharmaceutical manufacturing, as a machine operator, as a

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soldering assembler, and a warehouse coordinator.

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Mentally, plaintiff suffers from anxiety.

Although

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he has not undergone any significant psychiatric treatment,

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he does take medications as needed to address his anxiety.

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His conditions of concern in this case are physical and stem

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from both back and neck pain or degenerative disc disease at

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those levels.

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hips and legs.

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the hypertension apparently is being controlled adequately

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with medication.

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He experiences pain that radiates into his
He also suffers from hypertension, although

Plaintiff's physical conditions stem from a fall

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from a ladder in 2005 and another incident in 2012 when a

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porch roof fell on him.

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injections.

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He has not undergone any surgery or

He has done physical therapy.

There are several objective reports in the record

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addressing both his lumbar and cervical conditions.

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from November 2011, at page 277, reveals no fracture or

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subluxation identified.

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resonance imaging, or MRI, testing on April 18, 2016.

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report appears at page 270 and 271.

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disc and degenerative changes, which are specifically

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described, at T12-L1 and L2-L3, as well as L4-L5, and L5-S1.

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An X-ray

Plaintiff underwent magnetic
The

The impression was the

Plaintiff underwent another spinal X-ray on

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January 9, 2014, and the results appear at page 276 of the

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record.

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an X-ray taken of plaintiff's lumbar region on May 4, 2016;

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that's reported at 294.

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minimal degenerative spurring.

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plaintiff underwent another lumbar MRI, the report appears at

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299 and 300.

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disease, detailed above, and the focus is on L3-L4 and L4-L5.

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The result was mild degenerative changes.

There was

The impression from that X-ray was
On November 16, 2017,

The impression was multilevel degenerative disc

Plaintiff underwent a limited spinal X-ray on

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November 8, 2017, the result appears at page 301.

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the impression is mild degenerative disc disease with no

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fracture or subluxation identified, and that appears at 301

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and 302.

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And again

Plaintiff also underwent testing of his cervical

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region.

There was an X-ray taken on January 9, 2014, that

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appears at 275, that identifies degenerative changes and

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straightened cervical lordosis.

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underwent cervical MRI testing, the result appears at 272 and

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273, and reflects various bulges at certain levels, including

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C4-C5 and C3-C4.

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result appears at 274, and the impression is straightening of

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the cervical lordosis, and degenerative disc disease at C5-C6

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and C6-C7.

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impression of suggestion of possible disc disease at C3-C4

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and C5-C6, and straightening.

On April 1, 2016, plaintiff

An X-ray was taken on April 25, 2016, the

An X-ray taken on May 4, 2016, resulted in the

That result appears at

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page 295.

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On December 7, 2017, a limited X-ray was taken of

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plaintiff's cervical spine.

The result appears at 297 and

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298.

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and C5-C6 degenerative disc disease.

The impression is straightening of cervical lordosis,

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Plaintiff's health care providers include Nurse

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Practitioner Tiffany Rivenburgh at Bassett Healthcare, who is

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described as his primary care provider.

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undergone chiropractic treatment with Russell James and has

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been seen at UHS Orthopedics by Nurse Practitioner Kristen

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Menard.

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He has also

Plaintiff has been prescribed various medications,

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including Flexeril, Naproxen, Ibuprofen, Atenolol,

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Levothyroxine, Simvastatin, and Lisinopril.

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In terms of daily activities, plaintiff cooks

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daily, shops weekly, showers daily, dresses, watches

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television, radio, socializes with family and friends, mows

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the lawn, he does it in five sections with breaks.

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dishes, does not do laundry.

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short walks.

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one half of a pack of cigarettes per day.

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alcohol daily, but does not use illegal drugs.

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He does

He vacuums, sweeps and goes for

Plaintiff is a smoker.

He smokes approximately
He also drinks

Procedurally, plaintiff applied for Title II and

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Title XVI benefits on March 19, 2016, alleging an onset date

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of October 13, 2015.

He claimed disability based on

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arthritis in his back and neck and numbness in his hands and

2

feet.

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Transcript.

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That appears at page 183 of the Administrative

A hearing was conducted on June 29, 2018, by

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Administrative Law Judge Victor Horton, who addressed

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plaintiff's disability claim.

7

on August 23, 2018, that became a final determination of the

8

Agency on July 5, 2019, when the Social Security

9

Administration Appeals Council denied plaintiff's application

10

for review.

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ALJ Horton issued a decision

and is timely.

12

This action was commenced on August 28, 2019,

In his decision, ALJ Horton applied the familiar

13

five-step sequential test for determining disability.

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first noted that plaintiff's insured status ended on

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September 30, 2018.

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He

He then found at step one that plaintiff had not

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engaged in substantial gainful activity since his alleged

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onset date.

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At step two, ALJ Horton concluded that plaintiff

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does suffer from severe impairments that impose more than

21

minimal limitations on his ability to perform basic work

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functions, including degenerative disc disease of the lumbar

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spine with disc protrusion and tear at the L5-S1 level,

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degenerative disc disease of the cervical spine with disc

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protrusion at the C4-C5 level, and chronic pain syndrome.

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At step three, ALJ Horton concluded that

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plaintiff's conditions do not meet or medically equal any of

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the listed presumptively disabling conditions set forth in

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the regulations, specifically considering listing 1.04.

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At step four -- prior to going to step four, I

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should say that the Administrative Law Judge crafted a

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residual functional capacity finding, or RFC, determining

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that plaintiff does retain the ability to perform light work

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with various limitations that are set forth at page 15 of the

10

Administrative Transcript, including, but not limited to, the

11

claimant can frequently reach in all directions, including

12

overhead, and the claimant can never lift overhead.

13

Applying that RFC finding at step four, with the

14

assistance of vocational expert testimony, ALJ Horton

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concluded that plaintiff is capable of performing his past

16

relevant work as a production supervisor, both as performed

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actually and as generally performed.

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In the alternative, proceeding to step five,

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notwithstanding the step four finding, and again based on the

20

testimony of the vocational expert, ALJ Horton concluded that

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plaintiff is capable of performing work available in the

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national economy as an injection molding machine attendant, a

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light work position with an SVP of 2, and therefore concluded

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that plaintiff was not disabled at the relevant time.

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As you know, the Court's function is limited to

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determining whether correct legal principles were applied and

2

substantial evidence supports the resulting finding.

3

Substantial evidence has been defined as such relevant

4

evidence as a reasonable mind would find sufficient to

5

support a conclusion.

6

In this case, plaintiff's contention is that the

7

Administrative Law Judge failed to resolve a conflict between

8

the Dictionary of Occupational Titles, or DOT, and the

9

vocational expert testimony concerning the restriction on

10

overhead lifting.

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the RFC finding.

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conflict between the DOT and the testimony of the vocational

13

expert, the Administrative Law Judge must elicit a reasonable

14

explanation for the conflict and resolve it before relying on

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the testimony of the vocational expert, and the reasoning

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must be set forth.

17

Plaintiff does not in this case challenge
No question that if there is an apparent

As the Social Security Ruling 00-4p makes that

18

clear, and the Second Circuit has reiterated and reaffirmed

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that in Lockwood versus Commissioner of Social Security

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Administration, 914 F.3d 87, a decision from January 23,

21

2019, it is insufficient, as the Second Circuit made clear in

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Lockwood, to rely merely on a conclusory statement from a

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vocational expert that his or her testimony is consistent

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with the DOT.

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The defendant argues that there is no conflict

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here.

Light work, which is a finding of the RFC limitations

2

and which the two positions in question fall under, includes

3

lifting no more than 20 pounds at a time with frequent

4

lifting or carrying of objects weighing up to 10 pounds, 20

5

CFR Section 404.1567(b).

6

Titles does not specify a direction for the required lifting

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under the light work definition.

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Occupational Titles, or DOT, listings for the two positions

9

in question, general supervisor and injection molding machine

The Dictionary of Occupational

The Dictionary of

10

tender, speak to lifting.

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Section 183.167-018, specifies that it is light work with no

12

direction specified and requires occasional reaching, meaning

13

less than one-third of the time, without specifying

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direction.

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injection molding machine tender, also specifies light work

16

and requires frequent reaching, meaning one-third to

17

two-thirds of the time, that's again without specifying

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direction.

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non-exertional limitation.

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The general supervisor, DOT

DOT Section 556.685-038, that relates to

Reaching, of course, under SSR 83-10 is a

This case is very similar to what was confronted by

21

the Second Circuit in Lockwood.

That case involved a

22

residual functional capacity finding that limited the

23

plaintiff to no overhead reaching.

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jobs that were in question in that case required reaching

25

with no direction specified, and so a conflict existed.

The DOT for those three

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I did have a problem with this case, and I went

2

back and forth because I understand the Commissioner's

3

argument that normally lifting is something that is done from

4

the waist level down, that would be the normal understanding

5

of lifting.

There certainly isn't anything in the DOT that

6

specifies.

I did find, however, the selected characteristics

7

of occupations defined in the revised Dictionary of

8

Occupational Titles, 1993 edition, published by the United

9

States Department of Labor Employment and Training

10

Administration, it's called the SCODICOT, in Appendix C it

11

addresses physical demands and defines lifting as, quote,

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"Raising or lowering an object from one level to another

13

(includes upward pulling)."

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necessarily seem to limit to lifting from the waist down.

15

That definition did not

I do believe that there is a conflict between

16

certainly at step five and at step four, as generally

17

performed the supervisory position, because the Dictionary of

18

Occupational Titles characterizes those as light work and

19

does not speak to lifting.

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be harmless.

21

cited by the Commissioner, Jasinski versus Barnhart, 341 F.3d

22

182 (Second Circuit 2003).

23

concerning the fact that lifting was not required in his

24

position as a supervisor, the vocational expert heard that

25

testimony, was aware of the hypothetical posed which limited

However, I believe the error to

This is the case similar to Jasinski, which was

The plaintiff gave testimony

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the no overhead lifting, and testified that plaintiff was

2

capable of performing his past relevant work as actually

3

performed.

4

otherwise, and plaintiff did not carry that burden.

5

It was plaintiff's burden at step four to prove

So, I do find error at step four and five, but I

6

find it was harmless for the reasons that I just stated.

7

will, therefore, grant judgment on the pleadings to the

8

defendant and order dismissal of plaintiff's complaint.

9

I

I found this case to be very interesting and,

10

frankly, went back and forth on it, but in the end I think

11

for the reasons stated that the case should be dismissed.

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Thank you both for excellent presentations.
you stay safe.
*

*

*

Hope

Case 3:19-cv-01062-DEP Document 15 Filed 10/14/20 Page 15 of 15

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