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)

Download PDF
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 (315)234-8546 2 1 THE COURT: I have before me a request for review 2 under 42, United States Code, Section 405(g) of a partially 3 unfavorable decision of the Commissioner. 4 course, is based on a decision by an Administrative Law 5 Judge. 6 The background is as follows. The decision, of Plaintiff was born 7 in March of 1964 and is currently 51 years old. She was 49 8 years old at the time of the hearing. 9 in height and weighs 165 pounds and qualifies as obese. She is 5-foot 2-inches The 10 plaintiff lives in Syracuse with her 25-year-old son. 11 completed ninth grade and has had some job corps training. 12 She In the past the plaintiff has worked as a line 13 worker to November of 2007. 14 perform in that position; she has difficulty using her hands, 15 sitting, standing and moving her hands. 16 suffers from degenerative disc disease at the cervical and 17 lumbar levels, COPD, type 2 diabetes, which is controlled, 18 hypertension, and dyslipidemia, which is controlled, and 19 GERD. 20 Health Center, and in addition treated for her cervical 21 condition with Upstate Orthopedics. 22 surgery at the cervical level on June 5, 2012. 23 She claims she can no longer The plaintiff She treats generally with the Syracuse Community She underwent fusion Procedurally the plaintiff applied for Supplemental 24 Security Income payments, or SSI, on May 30, 2012, alleging 25 an onset date of November 1, 2007. She had a prior 3 1 application for both SSI and Disability Insurance Benefits 2 from October 2009, which was denied in December of 2009. 3 Administrative Law Judge denied reopening that prior 4 proceeding. 5 Judge John Lischak on October 28, 2013. 6 The A hearing was conducted by Administrative Law ALJ Lischak issued a decision on March 10, 2014. 7 The decision became a final determination of the agency when 8 on August 23, 2014 the Social Security Administration Appeals 9 Council denied plaintiff's request for review. 10 Administrative Law Judge's decision is fairly 11 straightforward. 12 determining disability. 13 14 The He applied the familiar five-step test for At Step One he found that the plaintiff had not engaged in substantial gainful activity. 15 At Step Two he found that she suffers from several 16 severe conditions, including degenerative disc disease with 17 spinal canal stenosis, having undergone a fusion, COPD, 18 diabetes and obesity. 19 At Step Three the Administrative Law Judge reviewed 20 the listed presumptively disabling conditions set forth in 21 the regulations that could apply and rejected those listings, 22 including listing 1.04, 3.02 and 9.00. 23 there is no longer any listing for obesity but he did follow 24 SSR 02-1p and considered any limitations associated with the 25 obesity. He also noted that 4 1 He then surveyed the available evidence and 2 determined that the plaintiff has the residual functional 3 capacity to perform sedentary work as defined by regulation. 4 The claimant additionally is able to occasionally climb, 5 balance, stoop, kneel, crouch and crawl, but must avoid 6 concentrated exposure to respiratory irritants such as fumes, 7 odors, dust and gases. 8 unable to perform the past relevant work based on the 9 exertional requirements. 10 The ALJ concluded that plaintiff is And at Step Five applied the grids, and in 11 particular Rule 201.19, to conclude that until she turned 50 12 on March 8, just the day before her 50th birthday, March 8, 13 2014, was not disabled. 14 As you know, my task is extremely limited. I am to 15 determine whether the Commissioner's determination is 16 supported by substantial evidence and results from the proper 17 application of legal principles. 18 evidence means such relevant evidence as a reasonable mind 19 might accept as adequate to support a conclusion. 20 The term substantial The first argument raised is that the 21 Administrative Law Judge's RFC determination is not 22 supported. 23 treating source statements that contradict plaintiff's 24 ability to perform the requirements of sedentary work, which 25 are defined by regulation as, "Lifting no more than 10 pounds As I noted, there do not appear to be any 5 1 at a time and occasionally lifting or carrying articles like 2 docket files, ledgers and small tools." 3 on to state that, "Although a sedentary job is defined as one 4 which involves sitting, a certain amount of walking and 5 standing is often necessary in carrying out job duties. 6 are sedentary if walking and standing are required 7 occasionally and other sedentary criteria are met." 8 regulation is at 20CFR Section 404.1567(a). 9 The regulations go Jobs That So what we're left with is competing evidence 10 potentially, and I'm not sure that I would characterize it as 11 competing. 12 has severe limitations in the areas of lifting, carrying and 13 so forth. 14 is some ambiguity, but I'm not sure that that would be 15 inconsistent with sedentary, the lowest exertional point, but 16 certainly consistent with the evidence from Dr. Cross who set 17 forth the limitations that are totally consistent with 18 sedentary work, and Dr. Fuchs, although Dr. Fuchs opined that 19 the plaintiff could actually perform light work. 20 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 21 was cited by the plaintiff. In that case the Administrative 22 Law Judge set aside the opinions of two consulting examiners 23 in favor of a non-examining consultant. 24 different situation here because I don't think that 25 Dr. Ganesh's, who was the examining, is squarely contrary to I think this is a 6 1 the non-examining. 2 I note also that I reviewed very carefully, as I 3 said before, the medical data from particularly the Syracuse 4 Community Health Center, and I did look at the period going 5 back to October 2010, very little even then reference to 6 acute distress. 7 distress, some tenderness." 8 meds." 9 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 10 later, at 229, "no complaints." 11 "tenderness." 12 complaints." 13 "no acute distress, tenderness noted." 14 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 15 of visits to the Syracuse Community Health Center from 16 April 3, 2012 through June 5, 2013, that's at 303 to 336, 17 literally have no mention of complaints of neck, back or 18 hands with the exception of 332, which is a May 21, 2012 19 visit when she was cleared for surgery. 20 conflicting evidence, no squarely conflicting evidence, and 21 no evidence of any treating source that suggests limitation 22 greater than sedentary work. 23 So we have really no In terms of credibility, obviously, the subjective 24 complaints alone are insufficient. The Commissioner must go 25 through the two-step process, which ALJ Lischak did. And he 7 1 reviewed daily activities, which one month after surgery 2 seemed to be fairly robust. 3 to the hand, that were negative. 4 Dr. Ganesh indicated full grip strength and 5/5 dexterity, 5 5/5 grip strength and dexterity intact, at 288. 6 indication of any hand issue. 7 any support of a limiting condition beyond sedentary. 8 9 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 10 irritants has only a minimal impact on the job base on which 11 grids are predicated. 12 cited by the plaintiff, where the RFC indicated that the 13 claimant was limited to no exposure to respiratory irritants. 14 Clearly, vocational testimony would be required in that 15 situation. 16 concentrated exposure to respiratory irritants." 17 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 18 determination is supported by substantial evidence resulted 19 from the application of proper legal principles, and, 20 therefore, will grant judgment on the pleadings to the 21 defendant. 22 23 24 25 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

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?