Jackson v. Commissioner of Social Security

Filing 16

ORDER that deft's motion for judgment on the pleadings is GRANTED; the Acting Commissioner's determination that the pltf was not disabled at the 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 pltf's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 4/11/2017. (see)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ALBERT JACKSON, Plaintiff, v. Civil Action No. 5:16-CV-0854 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF DOLSON LAW OFFICE 126 North Salina Street Suite 3B Syracuse, NY 13202 STEVEN R. DOLSON, 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 GRAHAM MORRISON, 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. ยงยง 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 April 7, 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 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 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: April 11, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x ALBERT JACKSON, Plaintiff, vs. 16-CV-854 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION - April 7, 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: STEVEN R. DOLSON Attorney at Law 126 North Salina Street Syracuse, New York 13202 For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: GRAHAM MORRISON, 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-854 - 4/7/2017 THE COURT: 1 I have before me a request for judicial 2 review of an adverse determination by the Acting 3 Commissioner. 4 Code, Section 405(g) and 1383(c). The review is sought under 42, United States The background is as follows. 5 The plaintiff was 6 born in September of 1967. 7 was 47 at the time of the hearing and 45 at the alleged onset 8 of his disability. 9 son in a second floor apartment which he accesses by 10 He is currently 49 years old. He He lives in Auburn with a nine-year-old stairway. He has a GED. 11 He last worked in May of 2013. The 12 Administrative Transcript at 31 through 33 and 191 reveals 13 that the plaintiff had a variety of positions, including 14 assembly, construction and home remodeling, as a forklift 15 driver, as a kitchen worker, and as a laborer. Medically he suffers from several diagnosed 16 17 conditions. 18 diagnosed as high-degree AV block. 19 there does not appear to be evidence of coronary disease. 20 230 he reports symptoms of intermittent dizziness and 21 lightheadedness. 22 implant. 23 He has a heart condition which has been Although at 226 to 235 At In June of 2013 he underwent a pacemaker He suffers from a shoulder condition, underwent 24 surgery on June 13, 2014 by Dr. Jeffrey Giuliani. 25 pages 400-402. That's at As we discussed during the oral argument, on 3 Decision - 16-cv-854 - 4/7/2017 1 October 10, 2014 he reported that his pain had significantly 2 improved, that he was satisfied with the surgery and had 3 minimal pain and no need for medication for his shoulder. 4 That's at page 390 of the Administrative Transcript. 5 Plaintiff suffers from a lumbar back condition. 6 For that he has seen primarily Dr. Renee Ryan, who is a 7 general medical practitioner. 8 September 25, 2014, that's at page 508 to 509, which 9 disclosed minimum disc bulging, no evidence of root 10 11 He underwent a CT myelogram on compression, no foraminal or central stenosis. The plaintiff uses a cane to help him stand and 12 walk, and that was prescribed by Dr. Ryan. 13 page 431 of the Administrative Transcript. 14 That's at The plaintiff has been diagnosed by Auburn 15 Orthopedic Specialists, at page 505, as suffering from 16 lumbago and sciatica. 17 In terms of daily activities, among other things 18 testified at the hearing and also at 362, which I believe is 19 Dr. Ganesh's report, he reported that he cooks, cleans, 20 showers, dresses, watches television, reads, and takes care 21 of his son. 22 Procedurally, the plaintiff applied for Title II 23 and Title XVI benefits under the Social Security Act on 24 August 2, 2013, alleging an onset date of May 29, 2013. 25 that he listed sleep apnea, heart condition, pacemaker, and In 4 Decision - 16-cv-854 - 4/7/2017 1 lower back pain as his medical conditions imposing 2 limitations. That's at page 189. A hearing was conducted by John Ramos, 3 4 Administrative Law Judge, on January 6, 2015. 5 issued a decision on March 11, 2015 that was unfavorable to 6 the plaintiff. 7 Council denied plaintiff's request for review on May 23, 8 2016, making the ALJ's decision a final determination of the 9 Agency. 10 11 ALJ Ramos The Social Security Administration Appeals In his decision ALJ Ramos applied the now familiar five step sequential test for determining disability. 12 At step one he concluded that plaintiff had not 13 engaged in substantial gainful activity since his alleged 14 onset date. 15 At step two he concluded that plaintiff suffers 16 from several severe impairments, including a history of right 17 shoulder surgery, history of heart blockage, lumbago, 18 sciatica, and obesity. 19 At step three he concluded that the plaintiff's 20 conditions did not either meet or medically equal either 21 singly or in combination any of the listed presumptively 22 disabling conditions. 23 4.05, and relied on the opinions of Dr. Plotz primarily for 24 making that determination. 25 He considered listings 1.02, 1.04 and The ALJ then went on to conclude that plaintiff Decision - 16-cv-854 - 4/7/2017 5 1 retains the residual functional capacity, or RFC, to perform 2 sedentary work, except that he can never kneel, crouch, or 3 crawl; he can occasionally stoop, balance and climb; he can 4 never tolerate exposure to unprotected heights; and he can 5 occasionally tolerate exposure to extreme cold and extreme 6 heat. The Administrative Law Judge then concluded at step 7 8 four that the plaintiff cannot perform any of his past 9 relevant work. And at step five applying the Medical-Vocational 10 11 Guidelines, or the grids, set forth in the Commissioner's 12 regulations, and after concluding that the limitations 13 experienced by plaintiff do not sufficiently erode the job 14 base on which the grids are predicated as to require 15 vocational expert testimony, concluded that under the grids, 16 and particularly Rule 201.21, a finding of not disabled is 17 directed. As you know, my standard of review -- my task is 18 19 limited. The standard of review is that correct legal 20 principles were applied in determining whether substantial 21 evidence supports the Commissioner's determination. 22 Obviously, at the heart of plaintiff's argument is that the 23 treating physician opinion of Dr. Renee Ryan was improperly 24 rejected as controlling, although counsel has withdrawn that 25 argument considerably, but argues that it is nonetheless 6 Decision - 16-cv-854 - 4/7/2017 1 entitled to weight and that in determining the extent of the 2 weight given, the Administrative Law Judge failed to apply 3 the factors set forth in the regulations. Clearly the regulations require in determining what 4 5 weight to give or assign to a treating physician's opinions, 6 the regulations require that the ALJ consider the length of 7 the treatment relationship and the frequency of examination, 8 the nature and extent of the treatment relationship, the 9 degree to which the medical source has supported his or her 10 opinion, the degree of consistency between the opinion and 11 the record as a whole, whether the opinion is given by a 12 specialist, and other evidence which may be brought to the 13 attention of the ALJ. 14 416.927. 15 That's at 20 CFR Sections 404.1527 and I am sensitive to the sheer volume of cases that 16 Administrative Law Judges deal with. 17 slavishly recite those and discuss those parameters and 18 factors in his decision? 19 indicated, he does go through a fairly thorough analysis of 20 the medical records, and at pages 18 and 19 provides an 21 indication of why he does not believe that Dr. Ryan's 22 opinions are worthy of controlling weight. 23 specifically say the degree of weight that he is giving the 24 opinion, but I think you can read between the lines, and the 25 Second Circuit has been very clear that, although I'm No. Does ALJ Ramos But as defendant's counsel has He does not 7 Decision - 16-cv-854 - 4/7/2017 1 cognizant of the Greek decision, in Atwater versus Astrue, 2 512 F.App'x 67, as long as the reasoning is clear, slavish 3 recitation of the factors need not be made. In this case, as I indicated in oral argument, it's 4 5 pretty clear Dr. Ryan's opinions are outliers; they're not 6 supported by the objective medical evidence, they're not 7 supported by her own treatment notes, and they're certainly 8 inconsistent with the opinions of Dr. Plotz, which is 9 rendered based on a review of the entire record after the 10 opinion of Dr. Ryan was given. And also it's inconsistent 11 with Dr. Ganesh, Dr. Ganesh's consultative report, although I 12 acknowledge that that occurred several months before the 13 report from Dr. Ryan. But, in sum, I believe that the rejection of 14 15 Dr. Ryan's report either as controlling or as entitled to 16 significant weight is explained and is supported. 17 rationale I think is clear. 18 which was cited by the Commissioner, Jones versus Colvin, 19 it's a Northern District case, 2017 WL 758511, controls and 20 shows that since the rationale is clear, the rejection is 21 proper. So the And so I think the Jones case, Dr. Ryan is not a specialist; she's a primary care 22 23 doctor. As I indicated, her opinions are inconsistent with 24 Dr. Ganesh and Dr. Plotz. 25 asserts that plaintiff is disabled, that's at 507, that is a To the extent that she argues or 8 Decision - 16-cv-854 - 4/7/2017 1 matter that's reserved to the Commissioner. 2 inconsistent with the plaintiff's daily activities, with the 3 treatment notes, many of which show that plaintiff's gait was 4 normal, and there are pages cited by the respondent that bear 5 that out. 6 appears to be based solely on plaintiff's subjective 7 complaints. 8 Her opinions are It's inconsistent with the CT myelogram, and it So, I don't find any error and will, therefore, 9 award judgment on the pleadings to the defendant. 10 Thank you both for excellent arguments. 11 have a good weekend. 12 13 14 15 16 17 18 19 20 21 22 23 24 25 * * * I hope you C E R T I F I C A T I O N I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. ________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter

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