Boger v. Commissioner of Social Security

Filing 18

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Boger's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 5/8/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PAMELA BOGER,
Plaintiff,

5:11-cv-748
(GLS)

v.
MICHAEL ASTRUE, Commissioner of
Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Pamela Boger
Pro Se
35A Springbrook Circle
Ithaca, NY 14850
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

KRISTINA D. COHN
Special Assistant U.S. Attorney

Mary Ann Sloan
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction

Plaintiff pro se Pamela Boger challenges the Commissioner of Social
Security’s denial of disability insurance benefits (DIB) and supplemental
security income (SSI), seeking judicial review under 42 U.S.C. § 405(g).
(See Compl., Dkt. No. 1 at 1.) After reviewing the administrative record,
the court affirms the Commissioner’s decision and dismisses Boger’s
complaint.
II. Background
On September 29, 2008, Boger filed an application for DIB and SSI
under the Social Security Act (“Act”), alleging disability since September
26, 2008. (Tr.1 at 8, 82.)2 After her application was denied, Boger
requested a hearing before an Administrative Law Judge (ALJ), which was
held on March 19, 2010. (See id. at 20-46.) On May 17, 2010, the ALJ
issued a decision denying the requested benefits, which became the
Commissioner’s final decision upon the Social Security Administration
Appeals Council’s denial of review. (See id. at 1-3, 8-19.)

1

Page references preceded by “Tr.” refer to the Administrative
Transcript in this case. (See Dkt. No. 11.)
2

While Boger’s application for benefits alleges disability relating to
SSI and DIB beginning on September 24 and 25, 2008, respectively, she
later amended the onset date to September 26. (Tr. at 8, 117, 125.)
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Boger commenced the present action by filing a complaint on July 1,
2011, seeking review of the Commissioner’s determination. (See Compl.)
The Commissioner filed an answer and certified copy of the administrative
transcript. (Dkt. Nos. 10, 11.) Boger was instructed to file and serve a brief
within forty-five days of the service of the Commissioner’s brief. (See Dkt.
No. 14.) When the Commissioner filed a brief seeking judgment on the
pleadings on January 27, 2012, a March 12 deadline was set for Boger’s
submission. (See Dkt. No. 15.) Because March 12 passed without a
submission by Boger, she was given a thirty-day extension within which to
file her brief or notify the court of her intention not to do so. (See Dkt. No.
17.) Despite the extension provided to her, Boger failed to do either.
III. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion in Christiana v. Comm’r
of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
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IV. Discussion
While courts in our sister Districts have found failure by a Social
Security plaintiff to file a brief on the merits to be sufficient grounds upon
which to grant a defendant’s motion for judgment on the pleadings, General
Order No. 18 instructs against similarly conclusory treatment in this District.
See Miles v. Barnhart, No. 6:06-CV-391, 2008 WL 5191589, at *4
(N.D.N.Y. 2008) (collecting cases). In that Order, Social Security plaintiffs
are notified that “failure to file a brief . . . will result in the consideration of
[their] appeal without the benefit of plaintiff’s arguments and may result in a
decision heavily influenced by the Commissioner’s version of the facts and
subsequent dismissal of [their] appeal.” General Order No. 18 at 4.
Accordingly, despite Boger’s failure to file a brief, the ALJ’s determination is
reviewed to ensure that it is supported by substantial evidence and correct
legal standards were applied. See Miles, 2008 WL 5191589, at *4.
Initially, the ALJ determined that Boger had not engaged in
substantial gainful activity since the amended onset date of September 26,
2008. (See Tr. at 10.) At step two, Boger was found to have the following
severe impairments: “mild osteoarthritis, myxoid degeneration of medial
meniscus, right knee; bilateral carpal tunnel syndrome; right middle finger,
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status post release; mild/minimal lumbar degenerative disc disease; and
obesity.” (Id.) Boger’s fibromyalgia, osteopenia, GERD, asthma, PCOS
status post remote hysterectomy, irritable bowel issues and MS-related
symptoms were also considered, but found to interfere only minimally with
her “ability to engage in basic work activities.” (Id. at 11.) Additionally,
following an extensive factual analysis, the ALJ further determined that she
did not have any severe mental impairment. (See id.) At step three,
Boger’s impairments, alone or taken together, were found not to meet or
medically equal a listed impairment. (See id. at 12.)
Before proceeding to step four, the ALJ undertook a lengthy
exploration of the record in arriving at Boger’s residual functional capacity
(RFC), ultimately finding that she could “perform a range of sedentary work
as defined in 20 [C.F.R. §§] 404.1567(a) and 416.967(a).”3 (Id.) Based
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Specifically, the ALJ found:
The claimant can lift and/or carry 5 pounds frequently
and 10 pounds occasionally. She can sit up for 6
hours in an 8-hour workday. She can stand and/or
walk on a combined basis no more than 2 hours in
an 8-hour workday. She can occasionally balance,
stoop, crouch, kneel, crawl, and climb ramps/stairs.
She cannot climb ladders/ropes/scaffolds. The
claimant can occasionally reach overhead. She can
bilaterally handle and finger frequently, but not
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upon that finding, and the testimony of a vocational expert, the ALJ
determined that Boger was capable of performing her past relevant work as
a telemarketer, and, as such, was not disabled during the relevant time
period. (See id. at 18-19.)
Upon a thorough review of the record, the court finds that the ALJ
correctly applied the relevant legal standards, and that his determination is
supported by substantial evidence. Accordingly, the Commissioner’s
decision is affirmed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Boger’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this

constantly. Environmentally, she can tolerate no
more than occasional exposure to extreme cold, high
humidity and wetness; and respiratory irritants. She
cannot be expected to work safely at unprotected
heights or around dangerous moving machinery.
The claimant also requires the ability to sit and/or
stand at will, but with no greater frequency than 30
minutes in one position or the other.
(Id. at 12-13.)
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Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
May 8, 2012
Albany, New York

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