Priest v. Commissioner of Social Security

Filing 13

ORDER: It is ORDERED that Defendant's motion for judgment on the pleadings is GRANTED. The Acting Commissioner's determination that the plaintiff was not disabled at relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 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 1/23/2017. (mc)

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

NICHOLAS IRA PRIEST,
Plaintiff,
v.

Civil Action No.
5:16-CV-477 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OFFICE OF JOHN L. BARDSLEY
36 Main Street
P.O. Box 166
HSBC Bank Building, Second Floor
Cortland, NY 13045

JOHN L. BARDSLEY, 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

KATHRYN S. POLLACK, 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
Acting 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 January 17, 2017,
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 Acting 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:

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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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1)

Defendant=s motion for judgment on the pleadings is

GRANTED.
2)

The Acting 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:

January 23, 2017
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
NICHOLAS IRA PRIEST,

vs.

16-CV-477

Commissioner of Social Security.
----------------------------------------------------x
Transcript of DECISION held on January 17, 2017,
at the James Hanley U.S. Courthouse, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding.

A P P E A R A N C E S
For Plaintiff:
(Via Telephone)

JOHN L. BARDSLEY, ESQ.
36 Main Street
PO Box 166
Cortland, New York 13045

For Defendant:
(Via Telephone)

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

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Priest v. Comm. of Social Security - 16-CV-477

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(In chambers, via telephone:)

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THE COURT:

All right.

I have before me a request

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for judicial review of an adverse determination by the

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Commissioner of Social Security pursuant to 42 United States

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Code, Sections 405(g) and 1383(c)(3).
The background is as follows:

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The plaintiff was

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born in August of 1979.

Is currently 37 years old.

Was 34

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years old at the time of the hearing in this matter and 32

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years old at the time of the alleged disability onset.
He has either a seventh or eighth grade education.

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The testimony and documentary evidence is equivocal.

He

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testified that he finished seventh grade.

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records suggest that he actually completed eighth grade.

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was in special education classes and classified as learning

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disabled in school.

The education
He

He is 6 foot tall and 145 pounds, plus or minus, in

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weight.

He is right-hand dominant.

He's married and has a,

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at the time of the hearing, a three-year-old daughter and was

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expecting a son in September of 2014.

Lives in an apartment.

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He last worked on October 26th, 2011.

He has a

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variety of past work, including as a janitor, farm worker,

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painter, tree trimmer, construction worker, security guard,

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assembler, industrial truck operator, and hotel maintenance

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and housekeeping and as a line cook.

He has a right shoulder

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injury, right ear condition and TMJ.

With regard to the

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Priest v. Comm. of Social Security - 16-CV-477

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shoulder, he injured his shoulder in November of 2011 while

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working on a farm.

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November 26th, 2011, where he saw Dr. Mahlon Bradley.

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underwent surgery by Dr. Bruce Greene in March of 2012 for an

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anterior labral tear and a partial subsurface -- or

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undersurface rotator cuff tear.

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in August of 2012 changing a tire.

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surgery again in June of 2013 by Dr. Brett Young for a labral

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repair and distal clavicle excision.

He appeared at the emergency room on
He

The shoulder was reinjured
He underwent arthroscopic

The reports were that

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the surgery was successful and he did appear to improve after

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the surgery.
With regard to his right ear, plaintiff is nearly

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deaf.

He is scheduled, or was at the time of the hearing,

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scheduled for sound processing implant surgery.

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condition, according to the plaintiff, causes balance issues

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and he experiences infections.

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manifested itself, apparently, during his first shoulder

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surgery.

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and was on a muscle relaxer and use of a mouth guard to

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address the TMJ.

The

The TMJ is something that

He is undergoing or did undergo physical therapy

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Plaintiff smokes one pack per day and has a history

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of alcohol abuse from the time he was 19 until 2009, although

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it appears to be in remission.

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limited household chores, cooking, reading, physical therapy

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and some hunting.

Daily activities include some

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Priest v. Comm. of Social Security - 16-CV-477

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The procedural history is as follows.

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applied for Title II and Title XVI benefits on January 30,

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2013, alleging an onset date of November 18, 2011.

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hearing was conducted by Administrative Law Judge Roxanne

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Fuller on June 5, 2014.

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issued a decision on September 19, 2014, finding the

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plaintiff not to be disabled.

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determination of the agency on March 4, 2016, when the Social

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Security Administration Appeals Council denied review of that

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Plaintiff

The

Administrative Law Judge Fuller

That became a final

determination.

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In her decision, Judge Fuller applied the

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now-familiar mandated 5-step sequential test for determining

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disability.

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At Step 1, concluded that plaintiff had not engaged

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in substantial gainful activity since the alleged onset date.

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At Step 2, concluded that the plaintiff suffers

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from severe impairments, including a labral tear, tendonitis,

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osteoarthritis and impingement of the right shoulder,

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status-post two arthroscopic surgeries, hearing loss and

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learning disability and depressive disorder.

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At Step 3, the ALJ concluded that the plaintiff's

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conditions did not meet or equal any of the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations.

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The ALJ then determined that plaintiff is capable

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Priest v. Comm. of Social Security - 16-CV-477

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of performing light work with modifications, including only

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occasional push/pull with the right dominant arm; occasional

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reaching and overhead reaching with the right dominant arm;

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occasional climbs ramps or stairs; never climb ladders, ropes

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or scaffolds; occasional balance, stoop, crouch, kneel and

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crawl; occasional exposure to excessive noise; limited to

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occupations that do not require fine hearing capability; and

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able to perform simple routine and repetitive tasks.

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Applying that RFC finding, the ALJ concluded at

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Step 4, that plaintiff is not capable of performing any of

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his prior past relevant work.

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At Step 5, after first noting that the grids or

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Medical-Vocational Guidelines could be utilized at Step 5, if

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there was not a substantial erosion of the job base on which

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it was predicated, concluded and noted that the grids would

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direct a finding of no disability under Rule 202.18.

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She, then, consulted with a vocational expert and

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concluded, based on the expert's testimony, that plaintiff

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could have performed jobs that are available in the national

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economy, including as a checker, an advertising material

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distributor and as a agricultural sorter.

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concluded that plaintiff was not disabled.

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As you know, my task is limited.

She, therefore,

The scope of the

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Court's review is fairly deferential.

I must determine

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whether correct, legal principles were applied and

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Priest v. Comm. of Social Security - 16-CV-477

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substantial evidence supports the Commissioner's

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determination.
First, I acknowledge the argument that was made by

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the plaintiff that the credibility analysis should have

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preceded the RFC determination and I acknowledge the

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existence of cases in this and other districts, including

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Patrick against Colvin, that say that.

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tend to deal more with situations where an RFC determination

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is made.

Those cases, however,

The ALJ then says, to the extent that the foregoing

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RFC is inconsistent with plaintiff's allegations, I don't

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credit plaintiff's allegations here.

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We have a very specific -- one of the better,

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frankly -- analyses that I've seen of plaintiff's claims.

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The claims are laid out at Page 16 and 17 of the

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administrative transcript and then the discussion that

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follows discusses in detail how, in the ALJ's view, the

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plaintiff's claims are not fully credible.

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The fact that those paragraphs should have preceded

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the RFC, in my view, is not critical or pivotal because it's

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clear that the RFC determination was made, keeping in mind

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these credibility determinations.

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I, also, find that the RFC is supported by

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substantial evidence.

I agree with plaintiff that it

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certainly is -- would have been desirable to obtain another

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consultative exam after plaintiff's second surgery and I do

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Priest v. Comm. of Social Security - 16-CV-477

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acknowledge that Dr. Ganesh, whose opinions form, in large

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part, the basis for the Commissioner's determination, came in

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between the first and second surgery.

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Commissioner that the treatment records from Dr. Young

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support a finding that the second surgery resulted in

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significant improvement.

But I agree with the

And there were other factors that were cited by the

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commissioner and Dr. Young, in many respects, medical source

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statement supports the RFC determination, as well as

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physician's assistant Kehee.

The records show improvement,

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including with regard to flexion and elevation after the

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second surgery.

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shoulder.

Four out of five strength in the right

I didn't understand the argument regarding limited

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education but I don't find any problem with that.

Plaintiff

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does experience limited education.

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he had only a seventh or eighth grade education.

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Commissioner, also, cited the fact that plaintiff doesn't

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have any regular medications or regular treatment.

The records reflect that
I note the

He applied for, apparently, a bow hunting permit

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from Dr. Young to allow him to use a special mechanical

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release assistance on his hunting bow.

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of 2013.

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That was in September

That's Page 672 of the administrative transcript.
The administrative law judge, also, relied on

plaintiff's daily activities, which included hunting, some

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Priest v. Comm. of Social Security - 16-CV-477

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snow shoveling, gardening and driving.
So, I find that the Commissioner's determination,

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again, applying my deferential standard of review, is

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supported by substantial evidence.

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on the pleadings to the defendant.

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Thank you both for excellent written and oral
presentations.

I hope you have a good day.

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MS. POLLACK:

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MR. BARDSLEY:

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So, I will grant judgment

Thank you, Judge.
Thank you.

(Proceedings adjourned, 11:22 a.m.)

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Priest v. Comm. of Social Security - 16-CV-477

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C E R T I F I C A T I O N

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I, DIANE S. MARTENS, Registered Professional

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Reporter, DO HEREBY CERTIFY that I attended the foregoing

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proceedings, took stenographic notes of the same, that

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the foregoing is a true and correct copy of same and the

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whole thereof.

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____________________________

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DIANE S. MARTENS, FCRR

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