Singleton v. Colvin

Filing 17

ORDER: that Defendant's motion for judgment on the pleadings is Granted; that 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 and the clerk is respectfully directed to enter judgment, based upon this determination, Dismissing plaintiff's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 10/18/2016. (hmr)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK KELLYANN SINGLETON, Plaintiff, v. Civil Action No. 5:15-CV-1527 (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 NATHANIEL V. RILEY, ESQ. HOWARD D. OLINSKY, 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 CHIEF U.S. MAGISTRATE JUDGE KAREN T. CALLAHAN, 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. 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 18, 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 18, 2016 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x KELLYANN SINGLETON, Plaintiff, vs. 5:15-CV-1527 CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. --------------------------------------------x Transcript of a Decision held on October 18, 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: NATHANIEL V. RILEY, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: KAREN T. CALLAHAN, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 14 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 All right. I have before me a request 3 for judicial review of an adverse determination by the Acting 4 Commissioner pursuant to 42 United States Code Sections 5 405(g) and 1383(c)(3). The background is as follows: 6 Plaintiff was born 7 in December of 1977, is currently 39 years old, was 34 at the 8 onset of her alleged disability and 36 at the time of the 9 hearing in this matter. She is right-handed, she stands 10 5-foot 7 inches tall, and weighs 287 pounds and has been 11 diagnosed as being obese. 12 While in school she was in special education classes, she has 13 not achieved a GED. 14 hairdressing but did not conclude it. 15 writing and spelling and some difficulties in counting. 16 drives, although she is limited by, mainly by ankle pain as 17 well as pain in her shoulder, neck, and back. She has a ninth grade education. She began a course I believe in She has difficulty in She She lives with her husband although her husband 18 19 works at a remote location and is gone for substantial 20 periods of time. 21 of the hearing, nine-year-old son, and a five-year-old son, 22 and also lives with a friend. 23 disabled. 24 25 She has a 16-year-old daughter at the time One of the children is She was engaged in a motor vehicle accident in March of 1980 -- 2012, she had a slip and fall in January of JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 15 1 2012 and injured her right hand. 2 sprain or strain. 3 and injured her ankle. 4 lumbar pain, and has undergone treatment at SOS and New York 5 Spine & Wellness Center, among others. 6 has undergone injections, physical therapy, and medication. 7 She also has treated at Upstate Bone & Joint Center for her 8 ankle. 9 It was diagnosed as a She fell on the stairs in January of 2013 She suffers from right shoulder pain, She uses a TENS unit, She last worked in April of 2008. She worked off 10 and on from 2 -- from 1996 to 2004 as a cashier at various 11 convenience stores. She left her telemarketing job due to 12 pregnancy in 2008. Daily activities including, she is able 13 to do certain functions including bathing, dressing, and 14 housework, some cooking with the assistance of her friend. 15 She shops utilizing a motorized cart. 16 The procedural history of this matter is that 17 plaintiff applied for SSI benefits on August 13, 2012 18 alleging an onset date for disability of March 18, 2012. 19 hearing was conducted by Administrative Law Judge Elizabeth 20 Koennecke, K-o-e-n-n-e-c-k-e, on February 19, 2014. 21 Koennecke issued a decision on May 24, 2014 that -- I'm 22 sorry, held a supplemental hearing, the hearing was initially 23 adjourned from February to May 24, 2014. 24 rendered on July 25, 2014, that became a final determination 25 of the agency on October 19, 2015 when the Social Security JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 A ALJ A decision was 16 1 Administration Appeals Council denied plaintiff's request for 2 review. 3 4 5 6 7 In her decision, ALJ Koennecke applied the progressive five-step test for determining disability. At step one, found that plaintiff had not engaged in substantial gainful activity since her alleged onset date. At step two, concluded that the plaintiff suffers 8 from severe impairments that meet the regulation requirements 9 for step two, including degenerative disk disease of the 10 lumbar spine and a right shoulder impingement with a partial 11 tendon tear. 12 In arriving at that conclusion, the ALJ rejected 13 several other alleged conditions as not sufficiently 14 limiting, including obesity, the wrist condition, an ankle 15 condition, the gastroesophageal reflux disease, or GERD, neck 16 pain and headaches, knee pain, and significantly, mental 17 limitations. 18 When he reviewed -- when she reviewed the mental 19 limitations, ALJ Koennecke surveyed the available evidence 20 including consultative examinations, reports, from 21 Dr. Christina Caldwell and Dr. Jeanne, J-e-a-n-n-e, Shapiro, 22 as well as the state agency psychological consultant who 23 reviewed available records, went through the so-called B 24 criteria of the listings and concluded that plaintiff had 25 only a mild limitation in the activities of daily living, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 17 1 mild limitation in social functioning, mild limitation in 2 concentration, persistence, or pace and no episodes of 3 decompensation that would meet the requirements of the 4 listings. 5 After surveying the records, the ALJ concluded the 6 plaintiff did not meet or medically equal any of the listed 7 presumptively disabling conditions including specifically 8 1.02, 1.04, 12.04, 12.05, and 12.06. 9 ALJ Koennecke next concluded that plaintiff retains 10 the residual functional capacity to perform a full range of 11 light work as defined in the regulations, and subject to in 12 an eight-hour workday with normal breaks can stand and walk 13 in combination for six hours and sit for six hours. 14 She then concluded at step four that plaintiff did 15 not have any significant past relevant work, and at step 16 five, utilizing the medical vocational guidelines or the 17 grids set forth in the regulations and specifically grid rule 18 202.17, found that the plaintiff was not disabled at the 19 relevant times. 20 As you know, my function is limited, the scope of 21 review is fairly deferential. 22 Commissioner's determination is supported by substantial 23 evidence and correct legal principles were applied. 24 25 I must determine whether the First turning to listing 12.05, that listing was previously entitled mental retardation, it is now retitled as JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 18 1 intellectual disability. Clearly the 58 full scale IQ score 2 qualifies under paragraph B of that listing; however, the 3 listing also requires a showing that the plaintiff has 4 deficits in adaptive functioning initially manifested during 5 the developmental period, that is, the evidence demonstrates 6 or supports onset of the impairment before age 22. Let's discuss first the argument that the -- the 7 8 school records should have been obtained to determine whether 9 the deficits manifested themselves before age 22. There's 10 normally a presumption under Talavera, absent any trauma or 11 something that would explain a sudden onset of deficits in 12 adaptive functioning, that they did in fact occur before age 13 22. 14 harmless in this case because substantial evidence supports 15 the finding that the plaintiff does not suffer from deficits 16 in adaptive functioning. 17 functioning is set forth in Talavera. 18 adaptive functioning refers to an individual's ability to 19 cope with the challenges of ordinary everyday life. 20 In any event, any failure to obtain those records is The definition of adaptive Among other things, In reviewing those deficits, and analyzing them, 21 courts have held that if one is able to satisfactorily 22 navigate activities such as living on one's own, taking care 23 of children without help sufficiently well that they have not 24 been adjudged neglected, paying bills, and avoiding eviction, 25 one does not suffer from deficits in adaptive functioning. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 19 In this case, it's clear, plaintiff, although she 1 2 does have some help, she is able to take care of three 3 children primarily while her husband is gone. 4 Dr. Shapiro at page 397 outlines her current functioning, 5 she's able to dress, bathe, and groom, but may need help 6 putting on her shirt at times, may need help getting out of 7 the tub. 8 quick food, do limited general cleaning, needs help with 9 laundry because she cannot bend, needs help shopping because 10 she cannot do the walking, can manage money, can drive when 11 she is not in too much pain. 12 with family and friends, she spends her days doing light 13 housework. The opinion of She can put something in the microwave and prepare Socially she gets along well So substantial evidence supports the finding that 14 15 the plaintiff does not have deficits in adaptive functioning. 16 Most of her limitations are related to her physical condition 17 rather than her mental or cognitive. 18 similar to Edwards v. Astrue, case relied on by the 19 Commissioner. 20 can dress, bathe, manage money, communicate effectively, do 21 simple math and take care of personal needs does not suffer 22 from adaptive deficits. This case is very In that case it's noted that a plaintiff who So I find that the conclusion she does not meet or 23 24 medically equal listing 12.05 is supported by substantial 25 evidence. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 20 In terms of duty to develop the record, we've 1 2 already talked about the medical records. In terms of 3 physical records, I find no gaps. 4 regulations and case law supports the finding that the lack 5 of a medical source statement from a treating source alone 6 does not indicate a fatal gap in the record. 7 Spine & Wellness Center treatment records are complete from 8 July 17, 2012 to April 15, 2014 without any gaps. 9 significant treatment records from various other sources and 10 a consultative examination report from Dr. Ganesh, and so I 11 do not find any gaps in the record that should have required 12 recontacting. I agree that the The New York There is In terms of the residual functional capacity or RFC 13 14 determination, I find that the physical components are 15 supported by substantial evidence, including Dr. Ganesh's 16 report. 17 source statement that fleshed out what was meant by gross 18 limitations and mild to moderate limitations but the case law 19 does support that mild to moderate limitation is not 20 incompatible with light work and, as counsel for the 21 Commissioner argued and indicated, the results of the 22 physical examination, including the musculoskeletal 23 examination, are not inconsistent with the RFC. 24 of mental, Dr. Shapiro's report supports the finding that 25 there are no mental limitations that would affect the ability I would prefer to have seen a more precise medical JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 And in terms 21 1 to perform unskilled work on which the grids are predicated. There was also an argument regarding credibility. 2 3 Obviously that's a matter for the Commissioner. In this case 4 there was a fairly detailed, more detailed than I'm used to 5 seeing, quite honestly, discussion of credibility at pages 31 6 through 33 of the administrative transcript. 7 thorough and is supported by substantial evidence, in terms 8 of the rejection of plaintiff's claims of disabling 9 symptomology. It was quite It -- the discussion permitted judicial, 10 meaningful judicial review and is supported by substantial 11 evidence. 12 her prior job due to pregnancy, and on page 547 listed her 13 occupation as a stay-at-home mother. 14 determination is also supported by treatment records and 15 clinical findings. I note that, as I indicated before, plaintiff left The credibility 16 You know, I do agree that there, the sit-and-squirm 17 jurisprudence argument perhaps contains merit but I find that 18 it, any reliance on that is harmless in light of the 19 overwhelming other evidence relied upon by, and cited by ALJ 20 Koennecke. 21 So I will grant judgment on the pleadings to the 22 defendant and order dismissal of plaintiff's complaint. 23 enjoyed working with both of you and I appreciate excellent 24 oral arguments and this was an interesting case. 25 MS. CALLAHAN: Thank you, your Honor. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 I 22 1 MR. RILEY: Thank you, Judge. 2 THE COURT: Thank you. 3 (Proceedings Adjourned, 10:42 a.m.) 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 18th 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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