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)

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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. 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 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: 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 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 3 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. 2 Priest v. Comm. of Social Security - 16-CV-477 1 (In chambers, via telephone:) 2 THE COURT: All right. I have before me a request 3 for judicial review of an adverse determination by the 4 Commissioner of Social Security pursuant to 42 United States 5 Code, Sections 405(g) and 1383(c)(3). The background is as follows: 6 The plaintiff was 7 born in August of 1979. Is currently 37 years old. Was 34 8 years old at the time of the hearing in this matter and 32 9 years old at the time of the alleged disability onset. He has either a seventh or eighth grade education. 10 11 The testimony and documentary evidence is equivocal. He 12 testified that he finished seventh grade. 13 records suggest that he actually completed eighth grade. 14 was in special education classes and classified as learning 15 disabled in school. The education He He is 6 foot tall and 145 pounds, plus or minus, in 16 17 weight. He is right-hand dominant. He's married and has a, 18 at the time of the hearing, a three-year-old daughter and was 19 expecting a son in September of 2014. Lives in an apartment. 20 He last worked on October 26th, 2011. He has a 21 variety of past work, including as a janitor, farm worker, 22 painter, tree trimmer, construction worker, security guard, 23 assembler, industrial truck operator, and hotel maintenance 24 and housekeeping and as a line cook. He has a right shoulder 25 injury, right ear condition and TMJ. With regard to the 3 Priest v. Comm. of Social Security - 16-CV-477 1 shoulder, he injured his shoulder in November of 2011 while 2 working on a farm. 3 November 26th, 2011, where he saw Dr. Mahlon Bradley. 4 underwent surgery by Dr. Bruce Greene in March of 2012 for an 5 anterior labral tear and a partial subsurface -- or 6 undersurface rotator cuff tear. 7 in August of 2012 changing a tire. 8 surgery again in June of 2013 by Dr. Brett Young for a labral 9 repair and distal clavicle excision. He appeared at the emergency room on He The shoulder was reinjured He underwent arthroscopic The reports were that 10 the surgery was successful and he did appear to improve after 11 the surgery. With regard to his right ear, plaintiff is nearly 12 13 deaf. He is scheduled, or was at the time of the hearing, 14 scheduled for sound processing implant surgery. 15 condition, according to the plaintiff, causes balance issues 16 and he experiences infections. 17 manifested itself, apparently, during his first shoulder 18 surgery. 19 and was on a muscle relaxer and use of a mouth guard to 20 address the TMJ. The The TMJ is something that He is undergoing or did undergo physical therapy 21 Plaintiff smokes one pack per day and has a history 22 of alcohol abuse from the time he was 19 until 2009, although 23 it appears to be in remission. 24 limited household chores, cooking, reading, physical therapy 25 and some hunting. Daily activities include some 4 Priest v. Comm. of Social Security - 16-CV-477 1 The procedural history is as follows. 2 applied for Title II and Title XVI benefits on January 30, 3 2013, alleging an onset date of November 18, 2011. 4 hearing was conducted by Administrative Law Judge Roxanne 5 Fuller on June 5, 2014. 6 issued a decision on September 19, 2014, finding the 7 plaintiff not to be disabled. 8 determination of the agency on March 4, 2016, when the Social 9 Security Administration Appeals Council denied review of that 10 Plaintiff The Administrative Law Judge Fuller That became a final determination. 11 In her decision, Judge Fuller applied the 12 now-familiar mandated 5-step sequential test for determining 13 disability. 14 At Step 1, concluded that plaintiff had not engaged 15 in substantial gainful activity since the alleged onset date. 16 At Step 2, concluded that the plaintiff suffers 17 from severe impairments, including a labral tear, tendonitis, 18 osteoarthritis and impingement of the right shoulder, 19 status-post two arthroscopic surgeries, hearing loss and 20 learning disability and depressive disorder. 21 At Step 3, the ALJ concluded that the plaintiff's 22 conditions did not meet or equal any of the listed 23 presumptively disabling conditions set forth in the 24 Commissioner's regulations. 25 The ALJ then determined that plaintiff is capable 5 Priest v. Comm. of Social Security - 16-CV-477 1 of performing light work with modifications, including only 2 occasional push/pull with the right dominant arm; occasional 3 reaching and overhead reaching with the right dominant arm; 4 occasional climbs ramps or stairs; never climb ladders, ropes 5 or scaffolds; occasional balance, stoop, crouch, kneel and 6 crawl; occasional exposure to excessive noise; limited to 7 occupations that do not require fine hearing capability; and 8 able to perform simple routine and repetitive tasks. 9 Applying that RFC finding, the ALJ concluded at 10 Step 4, that plaintiff is not capable of performing any of 11 his prior past relevant work. 12 At Step 5, after first noting that the grids or 13 Medical-Vocational Guidelines could be utilized at Step 5, if 14 there was not a substantial erosion of the job base on which 15 it was predicated, concluded and noted that the grids would 16 direct a finding of no disability under Rule 202.18. 17 She, then, consulted with a vocational expert and 18 concluded, based on the expert's testimony, that plaintiff 19 could have performed jobs that are available in the national 20 economy, including as a checker, an advertising material 21 distributor and as a agricultural sorter. 22 concluded that plaintiff was not disabled. 23 As you know, my task is limited. She, therefore, The scope of the 24 Court's review is fairly deferential. I must determine 25 whether correct, legal principles were applied and 6 Priest v. Comm. of Social Security - 16-CV-477 1 substantial evidence supports the Commissioner's 2 determination. First, I acknowledge the argument that was made by 3 4 the plaintiff that the credibility analysis should have 5 preceded the RFC determination and I acknowledge the 6 existence of cases in this and other districts, including 7 Patrick against Colvin, that say that. 8 tend to deal more with situations where an RFC determination 9 is made. Those cases, however, The ALJ then says, to the extent that the foregoing 10 RFC is inconsistent with plaintiff's allegations, I don't 11 credit plaintiff's allegations here. 12 We have a very specific -- one of the better, 13 frankly -- analyses that I've seen of plaintiff's claims. 14 The claims are laid out at Page 16 and 17 of the 15 administrative transcript and then the discussion that 16 follows discusses in detail how, in the ALJ's view, the 17 plaintiff's claims are not fully credible. 18 The fact that those paragraphs should have preceded 19 the RFC, in my view, is not critical or pivotal because it's 20 clear that the RFC determination was made, keeping in mind 21 these credibility determinations. 22 I, also, find that the RFC is supported by 23 substantial evidence. I agree with plaintiff that it 24 certainly is -- would have been desirable to obtain another 25 consultative exam after plaintiff's second surgery and I do 7 Priest v. Comm. of Social Security - 16-CV-477 1 acknowledge that Dr. Ganesh, whose opinions form, in large 2 part, the basis for the Commissioner's determination, came in 3 between the first and second surgery. 4 Commissioner that the treatment records from Dr. Young 5 support a finding that the second surgery resulted in 6 significant improvement. But I agree with the And there were other factors that were cited by the 7 8 commissioner and Dr. Young, in many respects, medical source 9 statement supports the RFC determination, as well as 10 physician's assistant Kehee. The records show improvement, 11 including with regard to flexion and elevation after the 12 second surgery. 13 shoulder. Four out of five strength in the right I didn't understand the argument regarding limited 14 15 education but I don't find any problem with that. Plaintiff 16 does experience limited education. 17 he had only a seventh or eighth grade education. 18 Commissioner, also, cited the fact that plaintiff doesn't 19 have any regular medications or regular treatment. The records reflect that I note the He applied for, apparently, a bow hunting permit 20 21 from Dr. Young to allow him to use a special mechanical 22 release assistance on his hunting bow. 23 of 2013. 24 25 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 8 Priest v. Comm. of Social Security - 16-CV-477 1 2 snow shoveling, gardening and driving. So, I find that the Commissioner's determination, 3 again, applying my deferential standard of review, is 4 supported by substantial evidence. 5 on the pleadings to the defendant. 6 7 Thank you both for excellent written and oral presentations. I hope you have a good day. 8 MS. POLLACK: 9 MR. BARDSLEY: 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 So, I will grant judgment Thank you, Judge. Thank you. (Proceedings adjourned, 11:22 a.m.) 9 Priest v. Comm. of Social Security - 16-CV-477 1 2 C E R T I F I C A T I O N 3 4 I, DIANE S. MARTENS, Registered Professional 5 6 Reporter, DO HEREBY CERTIFY that I attended the foregoing 7 proceedings, took stenographic notes of the same, that 8 the foregoing is a true and correct copy of same and the 9 whole thereof. 10 11 12 13 14 ____________________________ 15 DIANE S. MARTENS, FCRR 16 17 18 19 20 21 22 23 24 25

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