Sampson v. Commissioner of Social Security

Filing 12

ORDER: Defendant' 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 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 9/27/2018. (khr)

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

BERTHA LYNETTE S.
Plaintiff,
v.

Civil Action No.
5:18-CV-0045 (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. GRANT C. JAQUITH
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198

SERGEI ADEN, ESQ.,
Special Assistant U.S. Attorney

DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE
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),
1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral
argument was heard in connection with those motions on September 20,
2018, 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)

Defendant=s motion for judgment on the pleadings is

GRANTED.

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

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:

September 27, 2018
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
BERTHA S,
Plaintiff,
-v-

5:18-CV-45

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. PEEBLES
September 20, 2018
100 South Clinton Street, Syracuse, New York

For the Plaintiff:
LAW OFFICES OF STEVEN R. DOLSON
126 North Salina Street
Suite 3B
Syracuse, New York 13202
BY: STEVEN R. DOLSON, ESQ.
For the Defendant:
SOCIAL SECURITY ADMINISTRATION
26 Federal Plaza
Room 3904
New York, New York 10278
BY: SERGEI ADEN, ESQ.

Hannah F. Cavanaugh
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

2

Bertha S. v. Commissioner of Social Security
1
2

(In chambers, counsel present by telephone.
noted:

Time

10:18 a.m.)

3

THE COURT:

The plaintiff in this action has

4

commenced this case to challenge a determination by the Acting

5

Commissioner pursuant to 42, United States Code, Sections 405(g)

6

and 1383(c)(3).

7

The background is as follows:

The plaintiff was born

8

in May of 1968 and is currently 50 years old.

She was 48 years

9

old at the time of the hearing and 46 when her application for

10

benefits was made.

She lives in a home in Syracuse with her

11

mother.

12

and weighs 160 pounds, although at page -- that's at page 186

13

and 54.

Plaintiff has completed 12th grade.

14

She stands 5'2"

Plaintiff smokes six cigarettes per day.

She drinks

15

between three beers, that's at page 48, and four beers, at 316,

16

a day, and there's indication that those beers are actually

17

25-ounce beers.

18

treating source, Dr. Anumba, whether she intended to stop

19

drinking, she replied no with a smile.

20

Parenthetically, it was noted in that treatment note that she

21

had just returned from a vacation to Myrtle Beach, South

22

Carolina.

23

That's at page 462 and 316.

When asked by her

That's at page 527.

Plaintiff last worked on May 1, 2013.

That's at page

24

186.

She was laid off from that position, which was a seasonal

25

one.

Her past relevant work includes housekeeping at a motel, a

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

3

Bertha S. v. Commissioner of Social Security
1

machine operator, a sales representative, a secretary, and a

2

server/waitress.

3

Plaintiff suffers from several conditions.

In

4

support of her application for benefits at pages 54 and 186, she

5

claimed pancreatitis, arthritis in both legs, numbness of her

6

feet, high blood pressure, lower back pain, and insomnia.

7

also suffers from neuropathy and a history of alcohol abuse.

8

Plaintiff has treated with Dr. Myles Howard at Syracuse

9

Community Health Center.

She

She has undergone physical therapy at

10

both Upstate Hospital and Crouse Hospital here in Syracuse, New

11

York.

12

not undergone any treatment.

13

a result of the loss of a brother, a father, and three

14

boyfriends.

15

2016 and sees Dr. Anumba every three months.

16

Plaintiff also claims to suffer from depression, but has
That seems to stem from stress as

Plaintiff also treats with Dr. Emeka Anumba since

Medically, plaintiff has been prescribed Naproxen for

17

pain, Zolpidem or Ambien for sleep, folic acid, Metoprolol for

18

blood pressure, and Vitamin B1.

19

Plaintiff ambulates with the use of a cane prescribed by Dr.

20

Howard in July of 2015.

21

That's at 189 and 315.

That's at page 240.

Plaintiff's daily activities include -- she does not

22

do laundry.

23

help, she needs help in the shower, she has no hobbies, and she

24

sits on her porch.

25

She does shop, she does dishes, she can clean with

That's at page 316.

Procedurally, plaintiff applied for Supplemental

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

Bertha S. v. Commissioner of Social Security
1

Social Security Income payments on April 17, 2014, alleging an

2

onset date of April 1, 2010.

3

to the date of the application.

4

Administrative Law Judge Roxanne Fuller on October 7, 2016, to

5

address plaintiff's application.

6

on January 5, 2017, finding that plaintiff was not disabled at

7

the relevant times and, therefore, ineligible for SSI payments.

8

That became a final determination of the agency on December 8,

9

4

2017, when the Social Security Administration Appeals Council

10
11

That onset date was later amended
A hearing was conducted by

ALJ Fuller issued a decision

denied plaintiff's request for a review.
In her decision, ALJ Fuller applied the familiar

12

five-step test for determining disability.

13

protocol for determining disability in cases where there is

14

alcohol or substance abuse present.

15
16
17

She also applied the

At step one, she concluded plaintiff had not engaged
in substantial gainful activity since April 17, 2014.
At step two, ALJ Fuller concluded that plaintiff

18

suffers from severe conditions or impairments, including acute

19

alcohol pancreatitis, meralgia paresthetica, peripheral

20

neuropathy, and substance abuse.

21

At step three, the Administrative Law Judge concluded

22

plaintiff's conditions did not meet or medically equal any of

23

the listed presumptively disabling conditions considering, among

24

others, listings 12.04 and 12.06.

25

what plaintiff's residual functional capacity, or RFC, would be

The ALJ went on to determine

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

5

Bertha S. v. Commissioner of Social Security
1

with the presence of her alcohol use and concluded that she

2

retains the ability to perform sedentary work, except she can

3

only occasionally climb ramps or stairs, never climb ladders,

4

ropes, or scaffolds, occasionally balance, stoop, crouch, kneel,

5

and crawl, occasional exposure to moving mechanical parts, only

6

occasionally operate a motor vehicle, occasionally be exposed to

7

unprotected heights, and must use a cane to ambulate.

8

the claimant may only perform simple routine repetitive tasks.

9

The Administrative Law Judge then concluded that plaintiff had

Finally,

10

not engaged in any past relevant work within the meaning of the

11

Commissioner's regulations.

12

At step five, after noting that if the grid rules or

13

medical vocational rules and the regulations were applied, Rule

14

201.18 would direct a finding of no disability.

15

testimony of a vocational expert, however, with all of

16

plaintiff's impairments, including the substance abuse disorder,

17

plaintiff cannot perform any work available in the national

18

economy.

19

Based on the

The Administrative Law Judge then proceeded to

20

consider what plaintiff's residual functional capacity would be

21

without the use of alcohol and concluded that she would have the

22

same residual functional capacity with the exception of no cane

23

requirement to ambulate.

24
25

At step four, again, the Administrative Law Judge
concluded plaintiff did not have any past relevant work.

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

6

Bertha S. v. Commissioner of Social Security
1

At step five, relying on the testimony of a

2

vocational expert, the Administrative Law Judge concluded that

3

if the alcohol use stopped, plaintiff could perform as an order

4

clerk, a final assembler, and a callout operator, all of those

5

positions being sedentary in terms of exertional requirements

6

and with an SVP of two.

7

As you know, my role is limited and the review the

8

Court must make is extremely deferential.

9

whether correct legal principles were applied, which appear to

10

be the case in this instance, and whether the determination of

11

the Commissioner is supported by substantial evidence.

12

I must determine

The focus of plaintiff's argument is upon her

13

physical limitations.

14

burden through the residual functional capacity and the step

15

four step of the analysis to demonstrate the existence of

16

limiting conditions that would result in a finding of

17

disability.

18

As a backdrop, it is the plaintiff's

Let me take reaching first.

As was discussed, there

19

does not appear to be any diagnosed condition that would

20

logically preclude the plaintiff's ability to reach.

21

Administrative Law Judge therefore properly rejected Dr.

22

Lorensen's finding of a marked restriction on reaching.

23

simply no explanation for that other than her finding of a

24

limitation when she made musculoskeletal examination.

25

Anumba, the treating source two years after Dr. Lorensen's

The

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

There's

But Dr.

7

Bertha S. v. Commissioner of Social Security
1

report, in a medical statement indicated that plaintiff could

2

frequently use her arms to reach.

3

I find that that determination is therefore supported by

4

substantial evidence and that it was proper to rely on the

5

treating source in that regard.

6

That's at page 541 and 542.

Obviously, the more difficult issue is the substance

7

abuse analysis.

At pages 23 to 27, the Administrative Law Judge

8

very carefully and painstakingly evaluated the record regarding

9

alcohol abuse and its effects.

As the Commissioner argued,

10

ostensibly you could find that even without the alcohol use,

11

plaintiff would have the ability to perform sedentary work, but

12

it is noted that even under the Administrative Law Judge's

13

decision, if you take away the alcohol abuse she still limited

14

the plaintiff to sedentary work, which is extremely restrictive.

15

I note that there was a CT scan of plaintiff's head,

16

which was essentially normal.

17

therapist Kaitlin Kelly, at 369, indicated that plaintiff's

18

peripheral neuropathy was secondary to her chemical intake.

19

similar statement was made by Dr. Howard, the treating source,

20

in April of 2014, that's at page 334, when he indicated

21

peripheral neuropathy is secondary to ETOH, which is alcohol

22

abuse/dependence, twice on that page.

23

That's at page 351.

Physical

A

At page 261, Dr. O'Donnell indicated alcohol abuse

24

potentially led to peripheral neuropathy and cerebellar ataxia.

25

The Crouse Physical Therapy notes at page 514 indicate meralgia

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

Bertha S. v. Commissioner of Social Security
1

paresthetica is alcohol induced.

2

8

suggests that the paresthetica is also related to alcohol.

3

And at 527, Dr. Anumba

So it's true, as plaintiff argues, that SSR 96-9p

4

suggests that if there is a need for use of a cane to balance

5

due to neurological defects or impairments, there could be

6

erosion of the job base on which either the grids or the

7

vocational expert's testimony is based.

8
9

I note that Dr. Lorensen indicated, however, that
plaintiff did not use an assistive device and found only a

10

moderate limitation in the ability to ambulate and stand.

11

That's at page 318.

12

plaintiff does not need a cane.

13

indicated that plaintiff was able to walk some without a cane.

14

That's at 510.

15

for two hours and did not note any limitation in that regard,

16

that's at page 541, although did note that plaintiff walks with

17

a cane.

18

There's an indication at page 425 that
Physical Therapist Page

Dr. Anumba indicated that plaintiff can stand

There is difficulty in walking and standing and

19

balancing, clearly plaintiff reported at that 503, 506, and 511,

20

but although there is contrary evidence -- and the contrary

21

evidence could also be substantial evidence, as you know, as

22

long as substantial evidence supports the Administrative Law

23

Judge's determination, that is sufficient, and I find that it

24

does in this regard.

25

I do not find that there is any gap in the record.

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

9

Bertha S. v. Commissioner of Social Security
1

It was plaintiff's burden to demonstrate that her alcohol abuse

2

was not material to her limitations and work functions and the

3

ALJ clearly has the discretion to seek more evidence.

4

case, there was evidence in the record that she properly relied

5

on to make her determination of what plaintiff could do without

6

alcohol intake.

7

was represented at the hearing, noted -- the representative

8

noted at page 481 that the representative's review of the record

9

was complete.

10

In this

And I note in that regard that plaintiff, who

So on that basis, I am going to award judgment on the

11

pleadings to the defendant, affirm the Commissioner's

12

determination, and dismiss plaintiff's complaint.

13

interesting case and I appreciate both of your written and oral

14

presentations.

It was a very

I hope you have a wonderful day.

15

MR. DOLSON:

16

MR. ADEN:

17

(Time noted:

Thank you, Judge.

Thank you, your Honor.
10:33 a.m.)

18
19
20
21
22
23
24
25

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

Bertha S. v. Commissioner of Social Security

10

1
2

CERTIFICATE OF OFFICIAL REPORTER

3
4
5

I, HANNAH F. CAVANAUGH, Official Court Reporter, in and

6

for the United States District Court for the Northern District

7

of New York, DO HEREBY CERTIFY that pursuant to Section 753,

8

Title 28, United States Code, that the foregoing is a true and

9

correct transcript of the stenographically reported proceedings

10

held in the above-entitled matter and that the transcript page

11

format is in conformance with the regulations of the Judicial

12

Conference of the United States.

13
14

Dated this 26th day of September, 2018.

15
16

X___________________________

17

HANNAH F. CAVANAUGH

18

Official U.S. Court Reporter

19
20
21
22
23
24
25

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]