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)

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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. ยง' 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 (315)234-8546 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

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