Wilson v. Colvin

Filing 16

ORDER: It is Ordered that the # 12 Social Security Defendant's Brief / Motion for Judgment on the Pleadings is GRANTED and the # 11 Social Security Plaintiff's Brief / Motion for Judgment on the Pleadings is DENIED. The Commissioner 9;s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under theSocial Security Act, is AFFIRMED. Therefore the # 1 Complaint filed by Angela Wilson is DISMISSED in its entirety. The Clerk is directed to enter judgment based upon this determination. Signed by Magistrate Judge David E. Peebles on 12/11/2015. (jmb)

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

ANGELA WILSON, on behalf of T.N.L.B.,
Plaintiff,
v.

Civil Action No.
5:14-CV-1510 (DEP)

CAROLYN W. 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

HOWARD OLINSKY, ESQ.
PAUL B. 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

ROBERT R. SCHRIVER, 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 December 10, 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

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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.

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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:

December 11, 2015
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
ANGELA WILSON, on behalf of T.N.L.B.,
Plaintiff,
vs.

5:14-CV-1510

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on December 10, 2015, 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:

OLINSKY LAW GROUP
Attorneys at Law
300 S. State Street
Suite 420
Syracuse, New York 13202
BY: PAUL EAGLIN, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: ROBERT R. SCHRIVER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

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(The following is an excerpt from the

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proceedings held on 12/10/2015.)

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

I have before me a request

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for judicial review of an administrative determination

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denying plaintiff's application for benefits on behalf of a

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minor.
The background is as follows:

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The claimant, I'll

call him, was born in January of 2001, he is almost 15 years

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old.

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matter.

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at parochial school.

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receive some extra help.

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He testified he likes sports and his aunt did as well, and

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that he has relatively good grades.

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who is his custodial guardian in Syracuse, New York.

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living also with a grandfather who died in September of 2010

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and that appears to have been a little bit of a stressor,

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I'll call it, for the claimant.

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He was 12 years old at the time of the hearing in this
He, at the time of the hearing, attended sixth grade
He is in regular classes.
He likes school.

He does

He likes math.

He lives with his aunt
He was

Physically, the claimant suffers from asthma and he

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uses Albuterol, Flovent, and Singulair.

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minor tendinitis.

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He also has some

Mentally, it's been said that he has borderline

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intellectual functioning, some signs of ADHD.

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Adderall, although Dr. Shapiro, Dr. Jane Shapiro examined the

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

He takes

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claimant on May 23rd, 2011, and opined that she did not see

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any evidence of ADHD, that's at 375 of the administrative

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transcript.

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call it ADHD, is well controlled when he is on meds.

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consistently assessed a Global Assessment of Functioning or

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GAF of between 50 and 55, which indicates moderate symptoms

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and moderate difficulty in social, occupational, or school

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functioning.

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He appears, it appears that his condition, I'll
He is

He received treatment at the Syracuse Community

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Health Center and later at Summerwood Pediatrics effective

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January of 2013.

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condition at ARISE since November 24, 2008.

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counselors as well as two psychiatrists at ARISE, Catalin,

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C-a-t-a-l-i-n, Butunoi, B-u-t-u-n-o-i, and Golam, G-o-l-a-m,

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M-o-h-i-u-d-d-i-n.

He has also been treated for his ADHD
He sees

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His aunt testified that he helps with chores, he

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can handle his daily needs, he gets along with most of his

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classmates, and is generally likable.

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and playing on the computer.

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and takes swimming lessons.

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He likes video games

He plays football, basketball,

The procedural history is that on April 7, 2011,

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the plaintiff in this case filed an application for

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Supplemental Security Income benefits on behalf of the

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claimant, alleging an onset date of June 13, 2011.

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was conducted on March 4, 2011 by Administrative Law Judge

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

A hearing

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Susan Wakshul, W-a-k-s-h-u-l I believe.

The administrative

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law judge issued a decision on June 21, 2013, finding that

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the claimant was not disabled at the relevant times.

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became a final determination of the agency on October 10,

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2014, when the Social Security Administration Appeals Council

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denied plaintiff's application for review.

That

The Commissioner's decision, the administrative law

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judge's decision that is, is fairly straightforward.

After

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recounting the background, the administrative law judge

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applied the test for determining childhood disability and

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functional equivalents to a listed presumptively disabling

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condition, concluded that plaintiff suffers from a less than

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marked limitation in the area of acquiring and using

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information, a less than marked limitation in the area of

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attending and completing tasks, a less than marked limitation

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in the area of interacting and relating with others, no

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limitation in moving about and manipulating objects, and less

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than marked in the domain of caring for himself, also found

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that there would be a less than marked limitation in

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connection with his health and physical well-being,

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attributed mostly to the mental effects, and also his asthma.

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The Commissioner then -- the ALJ then determined that

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plaintiff had not met the test of showing either an extreme

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limitation in one domain or marked limitations in two or

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more.

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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Obviously my role is limited and deferential.

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My

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role is to determine whether correct legal principles were

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applied and the determination is supported by substantial

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evidence.

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relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.

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Substantial evidence has been defined as such

Addressing first the argument regarding the duty to

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develop the record, undeniably, and in particular in pro se

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cases where the need is even more acute, an administrative

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law judge does have the duty to develop a record when there

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are obvious gaps in the record.

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contains detailed treatment notes over the full period in

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question, particularly from counselors and psychiatrists at

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ARISE, as well as educational records.

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notwithstanding that fact, when there's no medical source

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statement from a treating physician, the administrative law

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judge has a duty to contact the treating source has been

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squarely rejected by the Second Circuit.

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counsel cited Swiantek which is a case that was relied on by

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the Commissioner, and that is a summary order that doesn't

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have precedential effect but there are other decisions,

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including in Whipple v. Astrue and Pellam v. Astrue, that

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hold the same.

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in this district in Streeter v. Commissioner of Social

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Security, all of which stand for that proposition.

In this case, the record

The notion that,

The plaintiff's

There is also a decision from Judge Scullin

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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So in this case, the record is in my view complete,

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there are no obvious gaps, and therefore there was no duty

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imposed on the Commissioner to recontact any treating source.
In terms of credibility, the administrative law

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5

judge went through a credibility analysis but I did not find

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any statements that -- of the claimant or the claimant's aunt

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that were rejected as being inconsistent with the

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administrative law judge's decision.

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down to where plaintiff's counsel started, and whether the

So really, this boils

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determination of less than marked in the domain of acquiring

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and using information is supported.

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There is evidence from Dr. Randall at 383 to 388

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that indicates a less than marked limitation in this area.

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Dr. Shapiro concluded, and did both intelligence testing and

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consultative examination, found that plaintiff reads at an

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age appropriate level, slightly below average in arithmetic

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and writing.

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evidence to the determination.

Dr. Shapiro's findings lend substantial

I have reviewed very carefully also the psychiatric

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20

records from ARISE, and they all suggest that the

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plaintiff -- the claimant, I'm sorry, is doing well while on

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meds.

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October 27, 2011, Dr. Butunoi wrote that the claimant is

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doing well academically and is able to focus to acquire

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knowledge.

For example, and this is just one of many, at 838, on

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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1

So I find that the determination regarding this

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domain is supported by substantial evidence.

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even if a marked limitation were to be found in this domain,

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which I don't think is necessarily supported by the record,

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there would still not be a finding of disability since there

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is no other marked limitation in any other domain.

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I note that

So that having been said, I conclude that the

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Commissioner's determination is supported by substantial

9

evidence, clearly she applied correct legal principles, and

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so I'll grant judgment on the pleadings to the defendant and

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affirm the Commissioner's determination.

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Thank you both for excellent, excellent arguments

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and it was an interesting case.

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with both of you.

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MR. EAGLIN:

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MR. SCHRIVER:

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It was a pleasure to work

Thank you, your Honor.
Thank you, your Honor.

(Proceedings Adjourned, 2:39 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 10th day of December, 2015.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]