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)

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. §§ 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

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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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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

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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
[phone]

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Decision - 16-cv-854 - 4/7/2017
THE COURT:

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I have before me a request for judicial

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review of an adverse determination by the Acting

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Commissioner.

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Code, Section 405(g) and 1383(c).

The review is sought under 42, United States

The background is as follows.

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The plaintiff was

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born in September of 1967.

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was 47 at the time of the hearing and 45 at the alleged onset

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of his disability.

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son in a second floor apartment which he accesses by

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He is currently 49 years old.

He

He lives in Auburn with a nine-year-old

stairway.
He has a GED.

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He last worked in May of 2013.

The

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Administrative Transcript at 31 through 33 and 191 reveals

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that the plaintiff had a variety of positions, including

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assembly, construction and home remodeling, as a forklift

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driver, as a kitchen worker, and as a laborer.
Medically he suffers from several diagnosed

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conditions.

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diagnosed as high-degree AV block.

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there does not appear to be evidence of coronary disease.

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230 he reports symptoms of intermittent dizziness and

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lightheadedness.

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implant.

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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

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surgery on June 13, 2014 by Dr. Jeffrey Giuliani.

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pages 400-402.

That's at

As we discussed during the oral argument, on

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Decision - 16-cv-854 - 4/7/2017
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October 10, 2014 he reported that his pain had significantly

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improved, that he was satisfied with the surgery and had

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minimal pain and no need for medication for his shoulder.

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That's at page 390 of the Administrative Transcript.

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Plaintiff suffers from a lumbar back condition.

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For that he has seen primarily Dr. Renee Ryan, who is a

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general medical practitioner.

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September 25, 2014, that's at page 508 to 509, which

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disclosed minimum disc bulging, no evidence of root

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He underwent a CT myelogram on

compression, no foraminal or central stenosis.
The plaintiff uses a cane to help him stand and

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walk, and that was prescribed by Dr. Ryan.

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page 431 of the Administrative Transcript.

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That's at

The plaintiff has been diagnosed by Auburn

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Orthopedic Specialists, at page 505, as suffering from

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lumbago and sciatica.

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In terms of daily activities, among other things

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testified at the hearing and also at 362, which I believe is

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Dr. Ganesh's report, he reported that he cooks, cleans,

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showers, dresses, watches television, reads, and takes care

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of his son.

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Procedurally, the plaintiff applied for Title II

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and Title XVI benefits under the Social Security Act on

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August 2, 2013, alleging an onset date of May 29, 2013.

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that he listed sleep apnea, heart condition, pacemaker, and

In

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Decision - 16-cv-854 - 4/7/2017
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lower back pain as his medical conditions imposing

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limitations.

That's at page 189.

A hearing was conducted by John Ramos,

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Administrative Law Judge, on January 6, 2015.

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issued a decision on March 11, 2015 that was unfavorable to

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the plaintiff.

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Council denied plaintiff's request for review on May 23,

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2016, making the ALJ's decision a final determination of the

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Agency.

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ALJ Ramos

The Social Security Administration Appeals

In his decision ALJ Ramos applied the now familiar
five step sequential test for determining disability.

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At step one he concluded that plaintiff had not

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engaged in substantial gainful activity since his alleged

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onset date.

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At step two he concluded that plaintiff suffers

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from several severe impairments, including a history of right

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shoulder surgery, history of heart blockage, lumbago,

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sciatica, and obesity.

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At step three he concluded that the plaintiff's

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conditions did not either meet or medically equal either

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singly or in combination any of the listed presumptively

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disabling conditions.

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4.05, and relied on the opinions of Dr. Plotz primarily for

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making that determination.

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He considered listings 1.02, 1.04 and

The ALJ then went on to conclude that plaintiff

Decision - 16-cv-854 - 4/7/2017

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retains the residual functional capacity, or RFC, to perform

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sedentary work, except that he can never kneel, crouch, or

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crawl; he can occasionally stoop, balance and climb; he can

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never tolerate exposure to unprotected heights; and he can

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occasionally tolerate exposure to extreme cold and extreme

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heat.
The Administrative Law Judge then concluded at step

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four that the plaintiff cannot perform any of his past

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relevant work.
And at step five applying the Medical-Vocational

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Guidelines, or the grids, set forth in the Commissioner's

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regulations, and after concluding that the limitations

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experienced by plaintiff do not sufficiently erode the job

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base on which the grids are predicated as to require

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vocational expert testimony, concluded that under the grids,

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and particularly Rule 201.21, a finding of not disabled is

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directed.
As you know, my standard of review -- my task is

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limited.

The standard of review is that correct legal

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principles were applied in determining whether substantial

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evidence supports the Commissioner's determination.

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Obviously, at the heart of plaintiff's argument is that the

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treating physician opinion of Dr. Renee Ryan was improperly

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rejected as controlling, although counsel has withdrawn that

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argument considerably, but argues that it is nonetheless

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Decision - 16-cv-854 - 4/7/2017
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entitled to weight and that in determining the extent of the

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weight given, the Administrative Law Judge failed to apply

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the factors set forth in the regulations.
Clearly the regulations require in determining what

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weight to give or assign to a treating physician's opinions,

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the regulations require that the ALJ consider the length of

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the treatment relationship and the frequency of examination,

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the nature and extent of the treatment relationship, the

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degree to which the medical source has supported his or her

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opinion, the degree of consistency between the opinion and

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the record as a whole, whether the opinion is given by a

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specialist, and other evidence which may be brought to the

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attention of the ALJ.

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416.927.

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That's at 20 CFR Sections 404.1527 and

I am sensitive to the sheer volume of cases that

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Administrative Law Judges deal with.

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slavishly recite those and discuss those parameters and

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factors in his decision?

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indicated, he does go through a fairly thorough analysis of

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the medical records, and at pages 18 and 19 provides an

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indication of why he does not believe that Dr. Ryan's

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opinions are worthy of controlling weight.

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specifically say the degree of weight that he is giving the

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opinion, but I think you can read between the lines, and the

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Second Circuit has been very clear that, although I'm

No.

Does ALJ Ramos

But as defendant's counsel has

He does not

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Decision - 16-cv-854 - 4/7/2017
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cognizant of the Greek decision, in Atwater versus Astrue,

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512 F.App'x 67, as long as the reasoning is clear, slavish

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recitation of the factors need not be made.
In this case, as I indicated in oral argument, it's

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pretty clear Dr. Ryan's opinions are outliers; they're not

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supported by the objective medical evidence, they're not

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supported by her own treatment notes, and they're certainly

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inconsistent with the opinions of Dr. Plotz, which is

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rendered based on a review of the entire record after the

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opinion of Dr. Ryan was given.

And also it's inconsistent

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with Dr. Ganesh, Dr. Ganesh's consultative report, although I

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acknowledge that that occurred several months before the

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report from Dr. Ryan.
But, in sum, I believe that the rejection of

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Dr. Ryan's report either as controlling or as entitled to

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significant weight is explained and is supported.

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rationale I think is clear.

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which was cited by the Commissioner, Jones versus Colvin,

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it's a Northern District case, 2017 WL 758511, controls and

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shows that since the rationale is clear, the rejection is

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proper.

So the

And so I think the Jones case,

Dr. Ryan is not a specialist; she's a primary care

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doctor.

As I indicated, her opinions are inconsistent with

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Dr. Ganesh and Dr. Plotz.

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asserts that plaintiff is disabled, that's at 507, that is a

To the extent that she argues or

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Decision - 16-cv-854 - 4/7/2017
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matter that's reserved to the Commissioner.

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inconsistent with the plaintiff's daily activities, with the

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treatment notes, many of which show that plaintiff's gait was

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normal, and there are pages cited by the respondent that bear

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that out.

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appears to be based solely on plaintiff's subjective

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complaints.

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Her opinions are

It's inconsistent with the CT myelogram, and it

So, I don't find any error and will, therefore,

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award judgment on the pleadings to the defendant.

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Thank you both for excellent arguments.

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have a good weekend.

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*

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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