Williams v. Colvin

Filing 16

ORDER re Telephone Conference. It is hereby ORDERED that Defendant's motion for judgment on the pleadings is GRANTED. The Acting Commissioner's determination that the Plaintiff was not disabled at the relevant times, and thus not entitled to benefits under the Social Security Act, is AFFIRMED. Signed by Magistrate Judge David E. Peebles on 3/31/2017. (dpk)

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

VICKI LYNNE WILLIAMS,
Plaintiff,
v.

Civil Action No.
5:16-CV-848 (DEP)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security, 1
Defendant.

APPEARANCES:

OF COUNSEL:

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

HOWARD D. OLINSKY, ESQ.
ALYSSA VAN AUKEN, ESQ.

FOR DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198

MARIA FRAGASSI SANTANGELO, ESQ.
Special Assistant U.S. Attorney

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
1

Carolyn Colvin, the former Acting Commissioner of Security who was named as
the defendant in plaintiff's complaint, was recently replaced by Nancy A. Berryhill, who
currently serves in that position. Because Carolyn Colvin was sued only in her official
capacity, Nancy A. Berryhill has been automatically substituted for Carolyn Colvin as the
named defendant. See Fed. R. Civ. 25(d).

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.2 Oral
argument was heard in connection with those motions on March 21, 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:
2

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:

March 31, 2017
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
VICKI LYNNE WILLIAMS,
Plaintiff,
vs.

5:16-CV-848

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
------------------------------------------------------x
DECISION - March 21, 2017
James Hanley Federal Building, Syracuse, New York
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 South State Street
Syracuse, New York 13202
BY: ALYSSA VAN AUKEN, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
26 Federal Plaza
New York, New York 10278
BY: PADMA GHATAGE, ESQ.

Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
[phone]

2

Decision - 16-cv-848 - 3/21/2017
THE COURT:

1

So I have before me a request for

2

judicial review of an adverse determination by the

3

Commissioner under Sections 405(g) and 1383(c)(3) of Title 42

4

of the United States Code.

5

follows.

6

The facts of this case are as

Plaintiff was born in March of 1965, is currently

7

52 years old.

She was 47 years old at the time of the

8

alleged onset of her disability and 49 years old at the time

9

of the administrative hearing in this matter.

10

eleventh grade education.

11

GED degree.

12

She has an

She fell just short of achieving a

She has some Job Corps training in 1982.

She's 5-foot, 9-inches tall and weighs

13

approximately 280 pounds.

14

lives with her boyfriend and son, Rayshawn, who is 19, or was

15

at the time of the hearing, and attending college.

16

in Liverpool.

17

driver's license.

18

than one half pack of cigarettes per day.

19

She is left hand dominant.

She

They live

She does not drive and does not have a
The plaintiff smokes approximately or less

The plaintiff's work history is somewhat ambiguous

20

and vague from the record.

She appears to have had last

21

substantial gainful activity in 2008.

22

worked as a cashier and cook, cleaning rooms at a hotel,

23

where she was fired in 2008, and from 2003 to 2007 a health

24

aide involved in elder care.

25

fired in 2008 she was unable to find new employment, although

In the past she has

It appears that when she was

3

Decision - 16-cv-848 - 3/21/2017
1

she did apparently work as a cook at a restaurant, as a

2

manager at a restaurant voluntarily and may have been paid

3

under the table.
Plaintiff was involved in a fight in March of 2012

4
5

and underwent surgery for an ankle fracture.

In March of

6

2012 she experienced an open reduction and internal fixation

7

surgery.

8

Transcript.

9

plaintiff also has undergone EMG and nerve conduction study

10

in April of 2013 addressing a left fourth and fifth finger

11

issue.

12

told based on the reports to avoid left elbow flexion.

That's at pages 226 and 227 of the Administrative
Surgery was performed by Dr. Maria Iannolo.

The

The findings were slightly abnormal and plaintiff was

In May of 2013 plaintiff complained of vomiting

13
14

blood.

There was internal testing.

She has been diagnosed

15

as suffering from GERD and esophagitis.
In November of 2013 plaintiff was involved in a

16
17

motor vehicle accident.

18

shoulder.

19

both Dr. Iannolo and Family Nurse Practitioner Paul Trela.

20

She was diagnosed as suffering from a concussion and she was

21

referred to occupational therapy.

22

She hit her head, knee and left

Since that time she has been treated at Upstate by

She's also complained of ongoing low back pain and

23

she has received treatment at the New York Spine and Wellness

24

Center, although X-rays from November 26, 2013 showed only

25

mild degenerative changes at the L5/S1 region.

4

Decision - 16-cv-848 - 3/21/2017
1

In terms of daily activities, plaintiff reports

2

that she cleans, does laundry one time per week, she can do

3

dishes, she does some cooking on a limited basis, she does

4

some grocery shopping with an electronic cart, talks on the

5

telephone, reads newspapers and visits her mother.

6

primarily at 47 to 49, and also based on her recitation of

7

daily activities to Dr. Ganesh.

8
9

That's

Procedurally plaintiff applied for Title XVI
supplemental security income benefits on January 16, 2013,

10

alleging an onset date of March 9, 2012.

11

conducted by Administrative Law Judge Gregory Hamel on

12

July 10, 2014.

13

2014, finding that the plaintiff was not disabled and,

14

therefore, not entitled to the SSI benefits sought.

15

became a final determination of the Agency on March 6, 2016,

16

when plaintiff's request for review of that determination was

17

denied by the Social Security Administration Appeals Council.

18

The hearing was

ALJ Hamel issued a decision on October 14,

That

In his decision ALJ Hamel applied the well-known

19

sequential five-step test for determining disability.

20

step one he determined that plaintiff had not engaged in

21

substantial gainful activity since January 16, 2013, the date

22

of her application for benefits.

23

she has worked as a cook since that time, though without pay

24

or being paid under the table.

25

At

He did note, however, that

At step two the Administrative Law Judge concluded

5

Decision - 16-cv-848 - 3/21/2017
1

that plaintiff suffers from severe impairments, including

2

left ankle fracture, obesity and a concussion.

3

among other things, nausea, GERD, left knee pain,

4

degenerative changes in the lumbar spine, and abnormal nerve

5

conduction.

He rejected,

At step three the ALJ concluded that plaintiff's

6
7

conditions did not meet or medically equal any of the listed

8

presumptively disabling conditions set forth in the

9

Commissioner's regulations.
The ALJ then surveyed the medical evidence and

10
11

concluded that plaintiff retains the RFC, or residual

12

functional capacity, to perform light work, except that she

13

can only occasionally climb stairs, balance, stoop, kneel,

14

crouch, and crawl, and cannot climb ladders and similar

15

devices.

16

Applying that RFC the Administrative Law Judge

17

concluded that the plaintiff at step four cannot perform her

18

past relevant work -- I'm sorry, can perform her past

19

relevant work, at least some of her past relevant work.

20

is able to perform the jobs of housekeeper and cashier, both

21

as they are actually and generally performed by her, but

22

could not perform as a restaurant manager.

23

She

The Administrative Law Judge then went on to

24

conclude that even if the plaintiff were deemed unable to

25

perform light work but could perform sedentary work at step

6

Decision - 16-cv-848 - 3/21/2017
1

five, a finding of not disabled would be directed by the

2

Medical-Vocational or Grid Rule 201.18.

3

testimony of the vocational expert, went on to conclude that

4

even with the existence of any non-exertional impairments

5

that would significantly erode the job base on which the

6

grids were predicated, the plaintiff nonetheless could

7

perform as a food and beverage order clerk, a document

8

preparer, and surveillance system monitor.

9

concluded that she is not disabled within the meaning of the

10

And considering the

He, therefore,

Social Security Act.

11

As you know, my scope of review is limited.

12

Court applies a very deferential substantial evidence

13

standard.

14

The

The first issue is step two, an impairment, a

15

condition, I should say, is severe for purposes of step two

16

if it significantly limits the ability to perform basic work

17

activities that, among other things, 20 CFR Section 416.921

18

sets forth that test.

19

to establish severity.

20

It is plaintiff's burden at step two

In terms of the shoulder, the X-rays contained at

21

311 through 313 of the Administrative Record reflect that the

22

shoulder was negative for acute changes.

23

of 2014 noted that plaintiff has a full range of motion in

24

both shoulders.

25

and I don't understand plaintiff to be arguing the wrist as

That's at 313.

Dr. Catania in June

With regard to the wrist,

7

Decision - 16-cv-848 - 3/21/2017
1

one of the severe limitations, but Dr. Catania also noted no

2

mention of wrist pain.

3

only mild to degenerative changes, X-rays taken after the

4

motor vehicle accident.

In terms of the back, X-rays showed

5

In any event, the Administrative Law Judge did go

6

beyond step two and performed the balance of the sequential

7

analysis, and so based on O'Connell versus Colvin, 558

8

F.App'x 63, any error at that stage is harmless.

9

particularly true since, as I indicated during oral argument,

And that's

10

Judge Hamel went through the objective medical evidence and

11

discussed all of the plaintiff's conditions, not merely those

12

that he found severe at step two.

13

example, the lumbar issue.

14

error there.

15

He did address, for

So I don't find any reversible

In terms of the residual functional capacity

16

finding, of course, it is plaintiff's burden to establish her

17

limitations under Poupore versus Astrue, 566 F.3d, 303.

18

RFC finding is supported by Dr. Ganesh.

19

20 pounds occasionally, stand, walk six hours of an

20

eight-hour day is well supported.

21

that Dr. Ganesh's consultative exam occurred prior to the

22

motor vehicle accident in November of 2013; however, I agree

23

with the Commissioner that the careful reading of the reports

24

of Dr. Israelski, as well as the treatment reports from the

25

various doctors in 2014, do not reflect significant changes

The

The ability to lift

I do have some concern

8

Decision - 16-cv-848 - 3/21/2017
1

in her condition in terms of the back.
And so turning to Dr. Israelski, I find that the

2
3

Administrative Law Judge properly rejected it or declined to

4

give it significant weight.

5

that the limitations expressed are anticipated to be

6

temporary.

7

Dr. Ganesh's opinion is contrary and the ALJ was properly

8

within his right to pick and choose between the two

9

consultative exams.

It clearly shows at page 294

It is based on a single one-time exam.

And

With regard to Dr. Iannolo, the report that is at

10
11

issue merely states the following:

12

remain out of work until further notice and will be

13

permanently disabled."

That's at page 335.

14

obviously not helpful.

It's a matter reserved for the

15

Commissioner and it doesn't give any indication of what

16

functional limitations the plaintiff has that would be work

17

related.

18

"Vicki L. Williams shall

That is

In terms of a concussion, there is no evidence in

19

the medical record that I saw, that I reviewed very

20

carefully, that the plaintiff's concussion caused greater

21

limitations than found in the RFC.

22

269-274, showed no acute intracranial abnormalities.

23

Trela showed in January of 2014, at 327-328, an exam that was

24

fairly normal and referred plaintiff to occupational therapy.

25

Four months later in May of 2014 Nurse Practitioner Trela

CT scans, at pages
The FNP

9

Decision - 16-cv-848 - 3/21/2017
1

noted that plaintiff was doing much better and making

2

progress.
Simply stated, there wasn't any evidence that I saw

3
4

of any cognitive deficits or memory loss other than

5

plaintiff's naked testimony.
Step four it depends on -- the step four

6
7

determination depends on the RFC finding.

The hypothetical

8

that was posed to the vocational expert at pages 59 and 60

9

approximated the RFC, and again it is plaintiff's burden at

10

step four to demonstrate that she cannot perform her past

11

relevant work.
But I note even if plaintiff was limited to

12
13

sedentary, as per Dr. Israelski's consultative report, it

14

would be harmless error to conclude at step four the

15

plaintiff was able to perform her past relevant work since at

16

step five with the testimony of a vocational expert it became

17

clear that even with an RFC that limited her to sedentary

18

work, there is work in the national economy that she can

19

perform.

20

So any error at step four would be harmless.
So, again, I appreciate your arguments.

This is a

21

close case, but based on my findings that there did not

22

appear to be significant physical change in condition after

23

the plaintiff's motor vehicle accident, I conclude that the

24

Commissioner's determination is supported by substantial

25

evidence, and I will grant judgment on the pleadings to the

10

Decision - 16-cv-848 - 3/21/2017
1
2
3
4

defendant.
Thank you so much to both of you.

Have a good

afternoon.
*

*

*

5
6

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

7
8

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official

9

Realtime Court Reporter, in and for the United States

10

District Court for the Northern District of New York,

11

do hereby certify that pursuant to Section 753, Title 28,

12

United States Code, that the foregoing is a true and correct

13

transcript of the stenographically reported proceedings held

14

in the above-entitled matter and that the transcript page

15

format is in conformance with the regulations of the

16

Judicial Conference of the United States.

17
18
19
20

________________________________

21

EILEEN MCDONOUGH, RPR, CRR
Federal Official Court Reporter

22
23
24
25