White v. Colvin

Filing 15

ORDER that deft's motion for judgment on the pleadings is GRANTED; the Commissioner's determination that the pltf 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 pltf's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 10/12/2016. (see)

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

JOSHUA CHRISTOPHER WHITE,
Plaintiff,
v.

Civil Action No.
5:15-CV-1394 (DEP)

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

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OLINSKY LAW GROUP
300 State Street
Suite 420
Syracuse, NY 13202

MICHELLE FECIO, ESQ.
HOWARD D. OLINSKY, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN HEETANO SHAMSOONDAR, ESQ.
United States Attorney
Special Assistant U.S. Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

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) and
1383(c)(3), are cross-motions for judgment on the pleadings. 1 Oral
argument was heard in connection with those motions on October 6, 2016,
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

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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. 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.
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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:

October 12, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
JOSHUA CHRISTOPHER WHITE,
Plaintiff,
vs.

5:15-CV-1394

CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held on October 6,
2016, 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: MICHELLE M. FECIO, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: HEETANO SHAMSOONDAR, 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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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

Well, thank you both.

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have before me an application for judicial review of an

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adverse determination by the Commissioner pursuant to 42

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United States Code Sections 405(g) and 1383(c)(3).

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The background is as follows:

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The plaintiff was

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born in June of 1980.

He completed the 11th grade, did not

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graduate and did not secure a GED.

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his I guess now wife, at one point it was fiancee, and six

He lives in Auburn with

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children, including children who are 12, 9, 7, 4, and

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5-month-old twins at the time of the hearing.
He injured his back, his lower back in February of

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2011.

Since then he has reported constant pain radiating

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from his back down into his right leg.

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treatment from a variety of sources including Dr. Ijaz Rashid

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with Neurology Services, SOS, Dr. Aaron Bianco, Dr. Andrew

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Wensel, W-e-n-s-e-l, a neurosurgeon from Rochester, Auburn

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Orthopedic Specialists primarily through Nurse Practitioner

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Melissa Butler, and the New York Spine and Wellness Center.

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In 2011, an MRI was conducted showing a paracentral

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profusion -- protrusion at L5-S1 impinging on a nerve root.

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On February 12, 2013 x-rays showed no significant bony

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abnormality.

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protrusion at L5-S1 but no spinal stenosis.

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246 of the administrative transcript referred to that as

He's undergone

On February 22, 2012, an MRI showed a

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

Dr. Rashid at

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almost unremarkable.

In August of 2011 a CT myelogram showed

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results that were fairly normal, with no significant

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impingement of the spinal canal or nerve root sheaths.
The plaintiff has also self-reported on a couple of

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occasions suffering from depression and anxiety although he

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has not been formally diagnosed nor treated for those.
He has taken Celebrex, gabapentin, hydrocodone,

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Aleve, epidural steroidal injections, physical therapy,

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occupational therapy, and aqua therapy.
In terms of past work, he was a materials handler

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at a steel mill shop, he's been in food and beverage service

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in various settings, and was a gas station attendant for five

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months working 24 hours per week up to five days prior to the

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hearing.

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He drives.

He cooks and shops with assistance.

Procedurally, plaintiff applied for Title II and

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Title XVI benefits under the Social Security Act on

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January 7, 2013, alleging a disability onset date of

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April 15, 2011.

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Law Judge Jennifer Gale Smith on April 22, 2014.

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2014, the administrative law judge issued a decision finding

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that the plaintiff was not disabled at the relevant times.

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The Social Security Administration Appeals Council denied

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review of that decision on September 21, 2015 making it a

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final determination of the agency.

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A hearing was conducted by Administrative
On June 10,

In her decision, Administrative Law Judge Gale --

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

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I'm sorry, Smith applied the five-step progressive test for

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determining disability, concluding at step one that the

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plaintiff had not engaged in substantial gainful activity

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since April 15, 2011.

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At step two, she found that plaintiff suffers from

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sev -- two severe impairments including degenerative disk

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disease of the lumbar spine and obesity.

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At step three, she concluded that plaintiff,
plaintiff's condition did not meet or medically equal any of

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the listed presumptively disabling conditions of the

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Commissioner's regulations, including a Listing 1.04.

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After surveying the medical evidence, she then

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concluded that plaintiff retains the residual functional

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capacity to perform sedentary work but should never climb

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ladders, ropes, and scaffolds, can occasionally climb ramps

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and stairs, balance, stoop, kneel, crouch, and crawl.

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claimant can frequently reach and the claimant should be able

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to change positions every 30 minutes but stay on task at the

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work station.

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The

At step four, the administrative law judge

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concluded that plaintiff is unable to perform his past

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relevant work.

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At step five, after noting that if the medical

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vocational guidelines were used, a finding of no disability

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would be required, she concluded that vocational expert

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

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testimony was necessary, based on potential erosion of the

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job base on which the grids are predicated.

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hypothetical approximating the residual functional capacity

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and other characteristics of the plaintiff, the vocational

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expert testified and the ALJ found that plaintiff can perform

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work in the national economy including as an order clerk/food

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and beverage, a document preparer, and a charge account

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clerk, and therefore he is not disabled.
As you know, my task is limited.

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Based on the

My role is to

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determine if proper legal principles were applied and the

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result is supported by substantial evidence.

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deferential standard.

It is a

With regard to failure to develop the record, the

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duty to develop the record only applies if there are obvious

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gaps.

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have a duty to develop the record if there are such gaps.

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this case, the record is replete with treatments, notes, and

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other documents reflecting the medical treatment and testing

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of the plaintiff over time.

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statement does not always mean that there is a gap, a fatal

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gap in the record.

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at 20 C.F.R. Sections 404.151(b) -- no 1513(b), (c) and

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416.913(b)(6).

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limitations.

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Undoubtedly, even in a counseled case, the ALJ does
In

The lack of a medical source

The regulations themselves indicate that

It is the plaintiff's burden to establish his

I found the Second Circuit's decision in Tankisi to

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

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be particularly instructive and on point.

In this case we

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have a consultative exam from Dr. Lorensen and it is

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supplemented by medical treatment notes and testing results

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that convince me that there's no critical gap that the ALJ

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should have filled.

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With respect to the argument that Dr. Lorensen's

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opinions are hopelessly vague, that would potentially have

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been true back when it was thought that it was the

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Commissioner's burden to establish limitations, the lack of

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limitations on the part of claimant, but clearly under

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Poupore and the current regulations, it is the plaintiff's

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burden to establish limitations at the RFC stage.

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again, Tankisi is very much on point but it is not unduly

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fatal in my view in light of the overwhelming evidence that

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Dr. Lorensen used a term moderate in conjunction with

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limitations.

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v. Colvin, 2014 WL 788 -- 788791, I'm sorry, and Ashby v.

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Astrue at 2012 WL 2477595.

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The --

And I also have relied in that regard on Zongos

I do find that the RFC determination by the

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Commissioner is supported by substantial evidence, including

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his testimony that he is able to lift the twins at 13 pounds,

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Dr. Lorensen's opinions, Dr. Rashid's treatment notes, the

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account of plaintiff's daily activity, the testing results

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including the CT and MRI, and Nurse Practitioner Butler's

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statement that he can perform sedentary work which, although

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

18
1

she's not an acceptable medical source, is still a statement

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that the ALJ can consider.
In terms of what we used to call credibility but

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the regulations are more focused on weighing of plaintiff's

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reports of symptomology, I believe the analysis was extremely

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thorough.

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than I'm used to seeing, quite honestly, the medical records

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in this case, and at 21 to 25, in detail surveys that

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evidence, and then 25 to 27 explains her conclusions relying

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on such things as plaintiff's report that he was remodeling

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his bedroom, his work experience at the truck stop, his

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accounts of daily activities including to Dr. Lorensen.

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believe there was a thorough discussion explaining the

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Commissioner's credibility determination and that is

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supported by substantial evidence.

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This decision goes through in much more detail

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So in sum, I will grant judgment on the pleadings

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to defendant and direct that plaintiff's complaint be

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dismissed.

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evidence and correct legal principles were applied.

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I think the result is supported by substantial

Thank you both for excellent arguments and I hope
you have a good day.

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MR. SHAMSOONDAR:

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MS. FECIO:

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Thank you, your Honor.

Thank you, your Honor.

(Proceedings Adjourned, 2:32 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 7th day of October, 2016.

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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]