Kahabka v. Berryhill

Filing 14

ORDER: Defendant's motion for judgment is granted. Acting Commissioner's determination is affirmed. Plaintiff's 1 Complaint is dismissed. Signed by Magistrate Judge David E. Peebles on 9/28/2018. (jdp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
KRISTY MARIE K.,
Plaintiff,
v.

Civil Action No.
5:18-CV-50 (DEP)

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
__________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
OLINSKY LAW OFFICE
330 S. State Street
Suite 420
Syracuse, New York 13202

HOWARD D. OLINSKY, ESQ.
MELISSA A. DELGUERCIO, ESQ.

FOR DEFENDANT
HON. GRANT C. JAQUITH
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
CHIEF U.S. MAGISTRATE JUDGE

DAVID L. BROWN, 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),
1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral
argument was heard in connection with those motions on September 26,
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

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

ORDERED, as follows:
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:

September 28, 2018
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
------------------------------------------------------x
KRISTY K.,
Plaintiff,
-v-

5:18-CV-50

NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL SECURITY,
Defendant.
------------------------------------------------------x
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HONORABLE DAVID E. PEEBLES
September 26, 2018
100 South Clinton Street, Syracuse, New York

For the Plaintiff:
OLINSKY LAW GROUP
300 South State Street
Suite 420
Syracuse, New York 13202
BY: MELISSA A. DELGUERCIO, ESQ.
For the Defendant:
SOCIAL SECURITY ADMINISTRATION
26 Federal Plaza
Room 3904
New York, New York 10278
BY: DAVID L. BROWN, ESQ.

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

2

Kristy K. v. Berryhill
1

(Time noted:

2

THE COURT:

1:55 p.m.)

I have before me a request for judicial

3

review of an adverse determination by the Acting Commissioner

4

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

5

1383(c)(3).

6

The background is as follows:

Plaintiff was born

7

March of 1986.

She is currently 32 years of age.

8

30 years old at the time of the alleged onset of her disability

9

and at the time of the hearing in this matter.

10

married and has no children.

11

She was

Plaintiff is not

roommate and the roommate's daughter.

12

She lives in Syracuse with a

Plaintiff is a high school graduate and while in high

13

school, she attended regular classes.

14

terms of work, plaintiff was a member of the United States Army

15

from January 2006 until January 2011 where she acted as a

16

military police officer.

17

also worked from February 2012 to August 2016 making dentures

18

and in shipping for Aspen Dental.

19

have been employed in 2005 prior to entering the Army at a

20

factory in various positions.

21

That's at page 794.

She was honorably discharged.

In

She

It appears that she may also

She possesses a driver's license.

Physically, plaintiff has lumbar back issues.

She

22

has a mild case of degenerative disc disease.

She has a minimal

23

disc bulge at L4-L5 and an annular tear at L3-L4, minimal bulges

24

also at C3-T1, and slight scoliosis of the thoracic spine.

25

has a right shoulder condition.

She

She underwent artho anterior

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

3

Kristy K. v. Berryhill
1

labral repair and subacromial decompression in July of 2016 by

2

Dr. Bradley Raphael who practices with SOS.

3

attributes that to an injury she suffered in 2010 while in the

4

Army.

5

Apparently, she

The plaintiff also has knee and ankle issues and uses

6

braces, but no assistive ambulatory device.

She suffers from

7

migraines and receives treatments and she has a mild case of De

8

Quervain's disease in her right hand, also uses hand braces

9

bilaterally.

The plaintiff, after undergoing her right shoulder

10

surgery, complained of residual pain and she has undergone

11

injections and attempted physical therapy.

12

Plaintiff also has been diagnosed as suffering from

13

posttraumatic stress disorder, or PTSD, depressive disorder, and

14

anxiety disorder.

15

Administration Medical Center from several sources, Nurse

16

Practitioner Tania Marschall; Dr. Deborah Diniro, a

17

psychologist; Dr. Harminder Grewal; and Nurse Practitioner

18

Natalia Myagkota.

19

including Buspar, Sertraline, Trazodone, Hydroxyzine,

20

Diclofenac, Amitriptyline, and Ibuprofen.

21

half a pack of cigarettes per day.

22

substance abuse disorder, including use of marijuana and abuse

23

of opioids.

24
25

She has received treatment from the Veterans

She has been prescribed various medications,

Plaintiff smokes a

She also has suffered from

As was indicated, plaintiff has been assessed a
disability by the Veterans Administration attributed to her

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

4

Kristy K. v. Berryhill
1

service and that is due to 20 percent for her lumbar condition,

2

70 percent for her posttraumatic stress disorder, and 10 percent

3

for her right shoulder strain.

4

In terms of daily activities, plaintiff cooks,

5

cleans, does laundry, shops, showers, dresses, watches

6

television, listens to the radio, socializes with friends and

7

family.

8
9

That's at 799 and 796 of the Administrative Transcript.
Procedurally, plaintiff applied for Title II benefits

on April 28, 2016, and Title XVI SSI payments on May 25, 2016,

10

protectively alleging an onset date of May 25, 2016.

11

of her application, she alleges disability due to back pain,

12

right shoulder pain, PTSD, bilateral knee pain, and migraines.

13

That's at 165, 177, and 307 of the Administrative Transcript.

14

In support

A hearing was conducted by Administrative Law Judge

15

Jennifer Gale Smith on February 21, 2017, to address plaintiff's

16

applications after their initial denial.

17

Smith issued a decision that was unfavorable to the plaintiff.

18

That became a final determination of the agency on November 14,

19

2017, when the Social Security Administration Appeals Council

20

denied plaintiff's request for review of that determination.

21

On May 10, 2017, ALJ

In her decision, ALJ Smith applied the familiar

22

five-step test for determining disability.

At step one, she

23

concluded that plaintiff had not engaged in substantial gainful

24

activity since her alleged onset date, but noted that there was

25

some work activity within that time period.

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

Kristy K. v. Berryhill
1

5

At step two, it was noted that plaintiff suffers from

2

severe impairments that interfere with her ability to perform

3

basic work functions, including status post right shoulder

4

arthroscopic anterior labral repair and subacromial

5

decompression, mild degenerative disc disease of the lumbar

6

spine with minimal bulge at L4-L5, an annular tear at L3-L4,

7

minimal disc bulges from C3-T1, very slight scoliosis of the

8

thoracic spine with a minimal central disc protrusion at T4-5,

9

headaches, anxiety disorder, depressive disorder, PTSD,

10

substance abuse disorder, and mild De Quervain's of the right

11

hand.

12

At step three, ALJ Smith concluded that plaintiff's

13

impairments did not meet or medically equal any of the listed

14

presumptively disabling conditions set forth in the

15

Commissioner's regulations, specifically considering listings

16

1.02, 1.04, 12.04, 12.06, and 12.15.

17

After surveying the available medical evidence, the

18

ALJ concluded that the plaintiff retains the residual functional

19

capacity, or RFC, to perform light work subject to the

20

following:

21

could not lift, reach or push and pull with right arm; the

22

claimant can frequently handle, finger, and feel with her right

23

hand; the claimant has no reaching limitations or other

24

manipulative limitations with her nondominant left arm and hand

25

and can push and pull with her left arm up to the weight limits

The claimant is right-hand dominant; the claimant

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

Kristy K. v. Berryhill

6

1

of light work; the claimant should work in a low stress job

2

defined as occasional decisionmaking, occasional judgment

3

required, and occasional changes in the work setting; the

4

claimant should work at goal oriented work rather than

5

production pace rate work; the claimant should work at a noise

6

environment of moderate or below as defined by the DOT; the

7

claimant should not have to drive as part of her job duties; and

8

the claimant would have a sit/stand option defined as the

9

claimant is able to stand up for 10 minutes at a time and then

10
11

needs to sit down for 10 to 15 minutes before standing again.
Applying that RFC, the Administrative Law Judge

12

concluded that plaintiff is not capable of performing her past

13

relevant work, either as performed by the plaintiff or generally

14

based on the testimony of a vocational expert.

15

At step five, after determining that the job base on

16

which the grids or medical vocational guidelines and the

17

regulations are predicated, it would be eroded by plaintiff's

18

various nonexertional limitations.

19

of a vocational expert, the Administrative Law Judge concluded

20

that plaintiff is capable of performing the functions of an

21

information clerk, a furniture rental clerk, and a storage

22

facility rental clerk, all of which are light positions with an

23

SVP of 2 and, therefore, concluded that the plaintiff was not

24

disabled at the relevant times.

25

And based on the testimony

As you know, the scope of review in this case is

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

7

Kristy K. v. Berryhill
1

limited and extremely deferential.

I must determine, A, whether

2

correct legal principles were applied and, B, whether the

3

outcome is supported by substantial evidence.

4

of the treating source opinions of the Nurse Practitioner

5

co-signed by Dr. Grewal, as the ALJ indicated, it is not

6

entirely clear whether Dr. Grewal was signing only as a

7

supervising physician or whether the opinions set forth in that

8

medical source statement were the opinions of Dr. Grewal, but

9

the rejection was explained by the Administrative Law Judge

First, in terms

10

Smith in her decision at page 26.

11

those of the doctor and the Nurse Practitioner, but pointed out

12

that they are contrary to the opinions of Dr. Leong, Dr.

13

Raphael, another treating source, and Dr. Ganesh, who examined

14

the plaintiff.

15

She treated the opinions as

It is also inconsistent with plaintiff's report of

16

activities.

At one point in the record, she stated to a

17

treating source that she had moved and was lifting in connection

18

with the move.

19

restrictive opinions of Dr. Grewal/Nurse Practitioner -- and I

20

can't say her name -- I can't pronounce her name -- are based on

21

plaintiff's subjective complaints.

22

of 2017, at page 831 and 832, returned plaintiff to work after

23

surgery with a 20-pound lift limitation.

24

find significant limitations, certainly with regard to the left

25

extremity, and it's clear that any limitations associated with

Many of the statements set forth in the very

But Dr. Raphael in January

Dr. Ganesh did not

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

8

Kristy K. v. Berryhill
1

the right were based on the fact that the examination occurred

2

one month after plaintiff's surgery at a point in time when she

3

had not fully recovered and was still sporting a sling.

4

In my view, the rejection of Dr. Grewal's opinions

5

are supported by substantial evidence and well explained to a

6

point where a meaningful judicial review could be allowed.

7

the Wiggins case that is supported and relied upon by the

8

plaintiff, I think is materially distinguishable because in this

9

case, as I indicated, there is a considerable body of evidence

And

10

that is contrary to the opinions set forth in Dr. Grewal's

11

opinions and the ALJ was within her right to rely on Mr. Leong,

12

Dr. Raphael, a treating source, and Dr. Ganesh.

13

Turning to the VA disability, I acknowledge the

14

requirement of Atwater, the seeming requirement of the Second

15

Circuit that the finding of the agency be considered.

16

sure how you -- if you consider it and give it no weight, has it

17

been given weight as opposed to giving it one percent weight or

18

two percent weight, the -- I know that the Commissioner has

19

relied upon a decision in Machia from one of my good friends and

20

colleagues, Magistrate Judge John Conroy from the District of

21

Vermont.

22

as Magistrate Judge Conroy did.

23

Administrative Law Judge did consider the VA's finding, but she

24

also had available to her all of the records from Veterans

25

Administration that went into that determination.

I'm not

I don't take as restrictive of a view with deference
It's clear that the

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

9

Kristy K. v. Berryhill
1

As I indicated in oral argument, the determination is

2

based 70 percent on plaintiff's PTSD and yet the plaintiff does

3

not seriously challenge the mental component of plaintiff's RFC

4

and does not -- and it's clear from the notes that plaintiff was

5

not receiving considerable treatment and was not forthcoming in

6

her discussion of her PTSD with her care providers at the

7

Veterans Administration.

8
9

I also note that although this regulation does not
apply, effective March 27, 2017, 20 CFR Section 404.1504 was

10

amended and, I think, is more consistent with both case law and

11

the way these other agency determinations should be treated.

12

The new regulation provides as follows:

13

agencies and nongovernmental agencies - such as the Department

14

of Veteran Affairs, the Department of Defense, the Department of

15

Labor, the Office of Personnel Management, State agencies, and

16

private insurers - make disability, blindness, employability,

17

Medicaid, Workers' Compensation, and other benefits decisions

18

for their own programs using their own rules.

19

decision by any other governmental agency or a nongovernmental

20

entity about whether you are disabled, blind, employable, or

21

entitled to any benefits is based on its rules, it is not

22

binding on us and is not our decision about whether you are

23

disabled or blind under the rules.

24

on or after March 27, 2017 -- which, of course, this is not --

25

we will not provide any analysis in our determination or

Other governmental

Because a

Therefore, in claims filed

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

10

Kristy K. v. Berryhill
1

decision about a decision made by any other governmental agency

2

or a nongovernmental entity about whether you are disabled,

3

blind, employable, or entitled to any benefits.

4

will consider all of the supporting evidence underlying the

5

other governmental agency or nongovernmental entity's decision

6

that we receive as evidence in your claim in accordance with

7

Section 404.1513(a)(1) though (4).

8
9

However, we

And that's essentially what happened here, the
Administrative Law Judge had available to her the VA records on

10

which that determination was based, so if there was error, I

11

find it was harmless error.

12

in support of that is Glessing v. Colvin.

13

2015 WL 7313401.

14

And the case that I would point out
It can be found at

So in sum, I think the Administrative Law Judge did

15

consider, pursuant to Atwater, the VA's determination and

16

rejected it, giving it any weight for the reasons that we've

17

really already discussed.

18

in this case is supported by substantial evidence and,

19

therefore, based on the vocational expert's testimony, the step

20

five determination was proper and I believe that the final

21

determination is supported by substantial evidence.

22

award judgment on the pleadings to the defendant and affirm the

23

Commissioner's determination.

24
25

In sum, I find the RFC determination

So I will

Thank you both for excellent presentations.
enjoyed working with you.

Thank you.

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

I've

Kristy K. v. Berryhill
1

MR. DELGUERCIO:

2

MR. BROWN:

3

(Time noted:

Thank you, Judge.

Thank you, Judge.

2:12 p.m.)

4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25

HANNAH F. CAVANAUGH, Official Court Reporter
[phone]

11

Kristy K. v. Berryhill

12

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 27th 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]