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)

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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. 'ยง 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 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. 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. 2 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 3 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 (315) 234-8547 13 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 All right. Well, thank you both. 3 have before me an application for judicial review of an 4 adverse determination by the Commissioner pursuant to 42 5 United States Code Sections 405(g) and 1383(c)(3). 6 The background is as follows: I The plaintiff was 7 born in June of 1980. He completed the 11th grade, did not 8 graduate and did not secure a GED. 9 his I guess now wife, at one point it was fiancee, and six He lives in Auburn with 10 children, including children who are 12, 9, 7, 4, and 11 5-month-old twins at the time of the hearing. He injured his back, his lower back in February of 12 13 2011. Since then he has reported constant pain radiating 14 from his back down into his right leg. 15 treatment from a variety of sources including Dr. Ijaz Rashid 16 with Neurology Services, SOS, Dr. Aaron Bianco, Dr. Andrew 17 Wensel, W-e-n-s-e-l, a neurosurgeon from Rochester, Auburn 18 Orthopedic Specialists primarily through Nurse Practitioner 19 Melissa Butler, and the New York Spine and Wellness Center. 20 In 2011, an MRI was conducted showing a paracentral 21 profusion -- protrusion at L5-S1 impinging on a nerve root. 22 On February 12, 2013 x-rays showed no significant bony 23 abnormality. 24 protrusion at L5-S1 but no spinal stenosis. 25 246 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 (315) 234-8547 Dr. Rashid at 14 1 almost unremarkable. In August of 2011 a CT myelogram showed 2 results that were fairly normal, with no significant 3 impingement of the spinal canal or nerve root sheaths. The plaintiff has also self-reported on a couple of 4 5 occasions suffering from depression and anxiety although he 6 has not been formally diagnosed nor treated for those. He has taken Celebrex, gabapentin, hydrocodone, 7 8 Aleve, epidural steroidal injections, physical therapy, 9 occupational therapy, and aqua therapy. In terms of past work, he was a materials handler 10 11 at a steel mill shop, he's been in food and beverage service 12 in various settings, and was a gas station attendant for five 13 months working 24 hours per week up to five days prior to the 14 hearing. 15 He drives. He cooks and shops with assistance. Procedurally, plaintiff applied for Title II and 16 Title XVI benefits under the Social Security Act on 17 January 7, 2013, alleging a disability onset date of 18 April 15, 2011. 19 Law Judge Jennifer Gale Smith on April 22, 2014. 20 2014, the administrative law judge issued a decision finding 21 that the plaintiff was not disabled at the relevant times. 22 The Social Security Administration Appeals Council denied 23 review of that decision on September 21, 2015 making it a 24 final determination of the agency. 25 A hearing was conducted by Administrative On June 10, In her decision, Administrative Law Judge Gale -- JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 15 1 I'm sorry, Smith applied the five-step progressive test for 2 determining disability, concluding at step one that the 3 plaintiff had not engaged in substantial gainful activity 4 since April 15, 2011. 5 At step two, she found that plaintiff suffers from 6 sev -- two severe impairments including degenerative disk 7 disease of the lumbar spine and obesity. 8 9 At step three, she concluded that plaintiff, plaintiff's condition did not meet or medically equal any of 10 the listed presumptively disabling conditions of the 11 Commissioner's regulations, including a Listing 1.04. 12 After surveying the medical evidence, she then 13 concluded that plaintiff retains the residual functional 14 capacity to perform sedentary work but should never climb 15 ladders, ropes, and scaffolds, can occasionally climb ramps 16 and stairs, balance, stoop, kneel, crouch, and crawl. 17 claimant can frequently reach and the claimant should be able 18 to change positions every 30 minutes but stay on task at the 19 work station. 20 The At step four, the administrative law judge 21 concluded that plaintiff is unable to perform his past 22 relevant work. 23 At step five, after noting that if the medical 24 vocational guidelines were used, a finding of no disability 25 would be required, she concluded that vocational expert JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 testimony was necessary, based on potential erosion of the 2 job base on which the grids are predicated. 3 hypothetical approximating the residual functional capacity 4 and other characteristics of the plaintiff, the vocational 5 expert testified and the ALJ found that plaintiff can perform 6 work in the national economy including as an order clerk/food 7 and beverage, a document preparer, and a charge account 8 clerk, and therefore he is not disabled. As you know, my task is limited. 9 Based on the My role is to 10 determine if proper legal principles were applied and the 11 result is supported by substantial evidence. 12 deferential standard. It is a With regard to failure to develop the record, the 13 14 duty to develop the record only applies if there are obvious 15 gaps. 16 have a duty to develop the record if there are such gaps. 17 this case, the record is replete with treatments, notes, and 18 other documents reflecting the medical treatment and testing 19 of the plaintiff over time. 20 statement does not always mean that there is a gap, a fatal 21 gap in the record. 22 at 20 C.F.R. Sections 404.151(b) -- no 1513(b), (c) and 23 416.913(b)(6). 24 limitations. 25 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 (315) 234-8547 17 1 be particularly instructive and on point. In this case we 2 have a consultative exam from Dr. Lorensen and it is 3 supplemented by medical treatment notes and testing results 4 that convince me that there's no critical gap that the ALJ 5 should have filled. 6 With respect to the argument that Dr. Lorensen's 7 opinions are hopelessly vague, that would potentially have 8 been true back when it was thought that it was the 9 Commissioner's burden to establish limitations, the lack of 10 limitations on the part of claimant, but clearly under 11 Poupore and the current regulations, it is the plaintiff's 12 burden to establish limitations at the RFC stage. 13 again, Tankisi is very much on point but it is not unduly 14 fatal in my view in light of the overwhelming evidence that 15 Dr. Lorensen used a term moderate in conjunction with 16 limitations. 17 v. Colvin, 2014 WL 788 -- 788791, I'm sorry, and Ashby v. 18 Astrue at 2012 WL 2477595. 19 The -- And I also have relied in that regard on Zongos I do find that the RFC determination by the 20 Commissioner is supported by substantial evidence, including 21 his testimony that he is able to lift the twins at 13 pounds, 22 Dr. Lorensen's opinions, Dr. Rashid's treatment notes, the 23 account of plaintiff's daily activity, the testing results 24 including the CT and MRI, and Nurse Practitioner Butler's 25 statement that he can perform sedentary work which, although JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 18 1 she's not an acceptable medical source, is still a statement 2 that the ALJ can consider. In terms of what we used to call credibility but 3 4 the regulations are more focused on weighing of plaintiff's 5 reports of symptomology, I believe the analysis was extremely 6 thorough. 7 than I'm used to seeing, quite honestly, the medical records 8 in this case, and at 21 to 25, in detail surveys that 9 evidence, and then 25 to 27 explains her conclusions relying 10 on such things as plaintiff's report that he was remodeling 11 his bedroom, his work experience at the truck stop, his 12 accounts of daily activities including to Dr. Lorensen. 13 believe there was a thorough discussion explaining the 14 Commissioner's credibility determination and that is 15 supported by substantial evidence. 16 This decision goes through in much more detail I So in sum, I will grant judgment on the pleadings 17 to defendant and direct that plaintiff's complaint be 18 dismissed. 19 evidence and correct legal principles were applied. 20 21 I think the result is supported by substantial Thank you both for excellent arguments and I hope you have a good day. 22 MR. SHAMSOONDAR: 23 MS. FECIO: 24 Thank you, your Honor. Thank you, your Honor. (Proceedings Adjourned, 2:32 p.m.) 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 7th day of October, 2016. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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