Klisz v. Colvin

Filing 14

ORDER: It is ORDERED that Defendant's motion for judgment on the pleadings is GRANTED. The Commissioner's determination that plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. The Clerk is directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 7/09/2015. (mc)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK

CHARLOTTE JEAN KLISZ,
Plaintiff,
v.

Civil Action No.
5:14-CV-1307 (DEP)

CAROLYN A. COLVIN, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OLINSKY LAW GROUP
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202

PAUL EAGLIN, 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

KRISTINA D. COHN, 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 July 2, 2015, 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:

July 9, 2015
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
CHARLOTTE JEAN KLISZ,
Plaintiff,
vs.

14-CV-1307

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
DECISION - July 2, 2015
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:

OLINSKY LAW GROUP
Attorneys at Law
300 South State Street
Syracuse, New York 13202
BY: PAUL B. EAGLIN, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
26 Federal Plaza
New York, New York 10278
BY: KRISTINA D. COHN, ESQ.

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

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THE COURT:

I have before me a request for review

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under 42, United States Code, Section 405(g) of a partially

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unfavorable decision of the Commissioner.

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course, is based on a decision by an Administrative Law

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Judge.

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The background is as follows.

The decision, of

Plaintiff was born

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in March of 1964 and is currently 51 years old.

She was 49

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years old at the time of the hearing.

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in height and weighs 165 pounds and qualifies as obese.

She is 5-foot 2-inches
The

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plaintiff lives in Syracuse with her 25-year-old son.

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completed ninth grade and has had some job corps training.

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She

In the past the plaintiff has worked as a line

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worker to November of 2007.

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perform in that position; she has difficulty using her hands,

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sitting, standing and moving her hands.

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suffers from degenerative disc disease at the cervical and

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lumbar levels, COPD, type 2 diabetes, which is controlled,

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hypertension, and dyslipidemia, which is controlled, and

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GERD.

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Health Center, and in addition treated for her cervical

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condition with Upstate Orthopedics.

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surgery at the cervical level on June 5, 2012.

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She claims she can no longer

The plaintiff

She treats generally with the Syracuse Community

She underwent fusion

Procedurally the plaintiff applied for Supplemental

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Security Income payments, or SSI, on May 30, 2012, alleging

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an onset date of November 1, 2007.

She had a prior

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application for both SSI and Disability Insurance Benefits

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from October 2009, which was denied in December of 2009.

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Administrative Law Judge denied reopening that prior

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proceeding.

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Judge John Lischak on October 28, 2013.

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The

A hearing was conducted by Administrative Law

ALJ Lischak issued a decision on March 10, 2014.

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The decision became a final determination of the agency when

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on August 23, 2014 the Social Security Administration Appeals

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Council denied plaintiff's request for review.

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Administrative Law Judge's decision is fairly

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straightforward.

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determining disability.

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The

He applied the familiar five-step test for

At Step One he found that the plaintiff had not
engaged in substantial gainful activity.

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At Step Two he found that she suffers from several

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severe conditions, including degenerative disc disease with

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spinal canal stenosis, having undergone a fusion, COPD,

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diabetes and obesity.

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At Step Three the Administrative Law Judge reviewed

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the listed presumptively disabling conditions set forth in

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the regulations that could apply and rejected those listings,

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including listing 1.04, 3.02 and 9.00.

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there is no longer any listing for obesity but he did follow

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SSR 02-1p and considered any limitations associated with the

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obesity.

He also noted that

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He then surveyed the available evidence and

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determined that the plaintiff has the residual functional

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capacity to perform sedentary work as defined by regulation.

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The claimant additionally is able to occasionally climb,

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balance, stoop, kneel, crouch and crawl, but must avoid

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concentrated exposure to respiratory irritants such as fumes,

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odors, dust and gases.

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unable to perform the past relevant work based on the

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exertional requirements.

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The ALJ concluded that plaintiff is

And at Step Five applied the grids, and in

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particular Rule 201.19, to conclude that until she turned 50

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on March 8, just the day before her 50th birthday, March 8,

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2014, was not disabled.

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As you know, my task is extremely limited.

I am to

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determine whether the Commissioner's determination is

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supported by substantial evidence and results from the proper

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application of legal principles.

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evidence means such relevant evidence as a reasonable mind

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might accept as adequate to support a conclusion.

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The term substantial

The first argument raised is that the

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Administrative Law Judge's RFC determination is not

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supported.

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treating source statements that contradict plaintiff's

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ability to perform the requirements of sedentary work, which

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are defined by regulation as, "Lifting no more than 10 pounds

As I noted, there do not appear to be any

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1

at a time and occasionally lifting or carrying articles like

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docket files, ledgers and small tools."

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on to state that, "Although a sedentary job is defined as one

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which involves sitting, a certain amount of walking and

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standing is often necessary in carrying out job duties.

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are sedentary if walking and standing are required

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occasionally and other sedentary criteria are met."

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regulation is at 20CFR Section 404.1567(a).

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The regulations go

Jobs

That

So what we're left with is competing evidence

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potentially, and I'm not sure that I would characterize it as

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competing.

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has severe limitations in the areas of lifting, carrying and

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so forth.

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is some ambiguity, but I'm not sure that that would be

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inconsistent with sedentary, the lowest exertional point, but

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certainly consistent with the evidence from Dr. Cross who set

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forth the limitations that are totally consistent with

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sedentary work, and Dr. Fuchs, although Dr. Fuchs opined that

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the plaintiff could actually perform light work.

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I agree that Dr. Ganesh stated that the plaintiff

I don't necessarily view those -- certainly there

This case is not like Bender, which is a case that

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was cited by the plaintiff.

In that case the Administrative

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Law Judge set aside the opinions of two consulting examiners

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in favor of a non-examining consultant.

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different situation here because I don't think that

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Dr. Ganesh's, who was the examining, is squarely contrary to

I think this is a

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1

the non-examining.

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I note also that I reviewed very carefully, as I

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said before, the medical data from particularly the Syracuse

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Community Health Center, and I did look at the period going

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back to October 2010, very little even then reference to

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acute distress.

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distress, some tenderness."

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meds."

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pain clinic."

January 18, 2011 at page 233, "no acute

That's at 231.

March 10, 2011, "doing well on

May 26, 2011, "back pain, referred to

That's at 230.

July 12, 2011, six weeks

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later, at 229, "no complaints."

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"tenderness."

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complaints."

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"no acute distress, tenderness noted."

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That's at 227.
That's at 226.

November 8, 2011,

November 23, 2011, "no
April 2, 2012, that's at 222,

She underwent surgery in June of 2012.

The notes

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of visits to the Syracuse Community Health Center from

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April 3, 2012 through June 5, 2013, that's at 303 to 336,

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literally have no mention of complaints of neck, back or

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hands with the exception of 332, which is a May 21, 2012

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visit when she was cleared for surgery.

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conflicting evidence, no squarely conflicting evidence, and

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no evidence of any treating source that suggests limitation

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greater than sedentary work.

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So we have really no

In terms of credibility, obviously, the subjective

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complaints alone are insufficient.

The Commissioner must go

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through the two-step process, which ALJ Lischak did.

And he

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reviewed daily activities, which one month after surgery

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seemed to be fairly robust.

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to the hand, that were negative.

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Dr. Ganesh indicated full grip strength and 5/5 dexterity,

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5/5 grip strength and dexterity intact, at 288.

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indication of any hand issue.

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any support of a limiting condition beyond sedentary.

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He looked at X-rays when it came
He looked at the fact that

There was no

There just doesn't seem to be

So then we come to Step Five, and under SSR 8314
and SSR 8515 the need to avoid excessive exposure to

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irritants has only a minimal impact on the job base on which

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grids are predicated.

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cited by the plaintiff, where the RFC indicated that the

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claimant was limited to no exposure to respiratory irritants.

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Clearly, vocational testimony would be required in that

15

situation.

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concentrated exposure to respiratory irritants."

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This is different than Thomas, a case

Here we don't have that.

We have must "avoid

So, I conclude that the Administrative Law Judge's

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determination is supported by substantial evidence resulted

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from the application of proper legal principles, and,

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therefore, will grant judgment on the pleadings to the

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defendant.

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Thank you both and I hope you have a good Fourth of
July weekend.
MS. COHN:
*

Thank you, Your Honor.
*

*

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