Howard v. Colvin

Filing 18

ORDER that deft's motion for judgment on the pleadings is GRANTED; the 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 6/4/2014. (see)

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

JOHN R. HOWARD,
Plaintiff,
v.

Civil Action No.
6:13-CV-0794 (DEP)

CAROLYN W. COLVIN, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
ANTONOWICZ LAW FIRM
148 W. Dominick St.
Rome, NY 13440

PETER W. ANTONOWICZ, 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
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
Commissioner of Social Security, pursuant to 42 U.S.C. ' 405(g), are
cross-motions for judgment on the pleadings. 1 Oral argument was heard in
connection with those motions on May 29, 2014, 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

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 (formerly, General Order No. 43) which was issued by the Hon. Ralph W.
Smith, Jr., Chief United States Magistrate Judge, on January 28, 1998, and
subsequently amended and reissued by Chief District Judge Frederick J. Scullin, Jr., on
September 12, 2003. Under that General Order an action such as this is considered
procedurally, once issue has been joined, 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 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:

June 4, 2014
Syracuse, NY

3

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
JOHN HOWARD,
Plaintiff,
vs.

13-CV-794

CAROLYN W. COLVIN, as Commissioner
of the Social Security Administration,
Defendant.
--------------------------------------------x
Decision rendered on May 29, 2014
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:

PETER W. ANTONOWICZ
Attorney at Law
148 West Dominick Street
Rome, New York 13440

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
26 Federal Plaza
New York, New York 10278
BY: DAVID B. MYERS, ESQ.

Eileen McDonough, RPR, CRR
Official United States Court Reporter
P.O. Box 7367
Syracuse, New York 13261
[phone]

2

1
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THE COURT:

Thank you.

I'll have to let that be

the last word.

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I've reviewed carefully the Administrative

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Transcript, the arguments of the parties, both written and

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verbal.

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Administrative Determination pursuant to 42, United States

7

Code, Section 405(g).

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9

I have before me a request for review of an

The claimant or plaintiff in this case was born in
November of 1968.

He was 42 years of age at the time of the

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Administrative Hearing in this case.

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degree.

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various food service positions as well as landscaping.

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has apparently had two work-related type injuries, one in

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2007 involving a shoulder injury for which he received a

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20 percent scheduled permanent loss, and some sort of a groin

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injury, which it turns out has been treated and diagnosed as

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some sort of a nerve entrapment.

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Dr. Francis Chabot, as well as Dr. Richard Chmielewski.

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He has a high school

He has worked in several positions, including in
He

He treats primarily with

He also suffers from diagnosed mental impairments

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for which he treats with Licensed Clinical Social Worker

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Kathryn Muller.

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including pain specialists and consultants, in an effort to

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control his pain.

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milligrams, Tramadol 50 milligrams, and Cymbalta

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50 milligrams.

He has also seen many other specialists,

For medications he receives Gabapentin 600

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He applied for disability insurance benefits in

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February of 2010 alleging anxiety, ADD, a shoulder injury,

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and the ilioinguinal nerve entrapment as disabilities and an

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onset date of November 20th, 2009.

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was conducted on March 29, 2011 by Administrative Law Judge

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Edward Pitts.

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in which he applied the well-known five-step test for

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determining disability and concluded that the plaintiff was

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not disabled.

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An Administrative Hearing

ALJ Pitts issued a decision on July 5, 2011,

At step two he did find that plaintiff suffers from

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a severe impairment that restricts his ability to perform

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basic work functions.

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the lumbar condition and shoulder condition and psychological

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conditions were also severe, he found that the nerve

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entrapment did not meet or equal medically any of the listed

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presumptively disabling conditions set forth in the

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regulations.

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Although he rejected the claim that

He then concluded that after surveying the medical

19

evidence, that plaintiff retains the ability to perform light

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work with the additional non-exertional restriction of

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unskilled work due to the difficulties in concentrating

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relating to his chronic groin pain.

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grids, and particularly Rule 202.21, and found that the pain

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did not sufficiently erode the job based on which the grids

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were predicated, particularly since it was taking into

He then applied the

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account the unskilled portion of the RFC finding, and

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concluded that there was no disability.

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That determination became final when the Social

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Security Administration Appeals Council denied plaintiff's

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request for review.

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This is a close case, and my role is to ensure that

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the proper legal principles were applied by the ALJ and that

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his decision is supported by substantial evidence.

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question of whether I would arrive at the same conclusion

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based on the evidence before the Court is not the inquiry.

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The term substantial evidence has been defined as such

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relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.

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The

I've carefully reviewed the evidence and arguments

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at step two.

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injury as a severe impairment.

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hearing at page 55 of the Administrative Transcript that he

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was not receiving treatment for his shoulder injury.

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Dr. David Kerschner, a chiropractor, indicated in his report

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that there was no restriction due to the accident and that

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after ten months of chiropractic treatment he should have

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been returned to his pre-accident condition.

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I think the ALJ properly rejected the shoulder
The claimant admitted at the

That's at 466.

The Dr. Johnson consultative exam in April of 2010

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showed some minimal restriction but no limitation in range of

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motion.

That's at page 373.

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1

Similarly, the ALJ properly rejected the

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psychological conditions that were cited by the plaintiff as

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being disabling or sufficiently severe to interfere with

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work-related activities.

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earlier, he was released in July of 2005 with a Global

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Assessment of Functioning, or GAF, score of 65.

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page 428 of the Administrative Transcript.

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he is doing well.

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provider indicate that they lost contact with the plaintiff.

When plaintiff treated much

That's at

It appears that

And the medical records from that care

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He only began treatment one month -- resumed treatment, I

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should say, one month before the hearing and began taking

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medication for his condition two days before the hearing.

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That's at page 57 of the Transcript.

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15

So, plaintiff's burden to establish those two
conditions as sufficiently severe in step two was not met.

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In terms of the Residual Functional Capacity

17

determination, which is pivotal, of course, I find that

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substantial evidence does support the RFC determination.

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Functional Capacity Evaluation was conducted in February of

20

2011 and that certainly can constitute a part of the body of

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evidence that is substantial and supports that determination.

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That's at page 528 et seq. of the record.

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A

Clearly it's plaintiff's burden at this step to

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establish that he doesn't have the RFC that was noted by the

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ALJ.

As I indicated, Dr. Chabot, his own treating physician,

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1

in April 2011 indicated that plaintiff should go to work and

2

can perform light work.

3

That's at page 627.

Consultative examiner Dr. Johnson, her examination

4

supports that plaintiff can lift 15 to 20 pounds, which is

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consistent with light weight.

And she found no limitation at

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sitting, standing or walking.

That's at pages 371 to 376 of

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the Administrative Transcript.

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The record indicates that plaintiff was responding

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fairly well to his nerve injections at page 61, according to

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his testimony, and at page 307.

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In terms of credibility, it was incumbent on the

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Administrative Law Judge to meet the regulations and consider

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the plaintiff's daily activities, the medications that he is

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on, the side effects, if any, of the medications.

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through the analysis.

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admittedly an isolated statement, of August 13, 2010 that

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plaintiff's pain did not seem to be commensurate with the

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physical findings.

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daily activities.

There are many indicators that plaintiff

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was doing better.

Page 307 of the record, for example.

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Page 308 shows that he was active.

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providers he could perform lawn work.

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flowers.

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indicates that the severe testicular pain was essentially

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gone.

He went

He focused on Dr. Lukose's statement,

That's at page 468.

He reported to his care

He was riding his bicycle.

This was in June of 2010.

He went through

He was planting
At page 308 it also

In October of 2010, at 306,

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1

he indicates marked improvement.

2

improvement in the groin pain from nerve blocks at page 477.

3

Dr. Chabot also noted

I find that the Administrative Law Judge did make a

4

proper credibility analysis and it was incumbent upon him to

5

make that determination so long as it was supported by

6

substantial evidence.

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aside the Commissioner's determination.

8
9

It does not provide a basis to set

So, although there is clearly conflicting evidence
in the record, it is nonetheless my finding that the

10

determination resulted from proper legal principles being

11

applied and is supported by substantial evidence.

12

grant judgment on the pleadings to the Commissioner and issue

13

an order incorporating by reference this determination.

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15

Thank you both for excellent presentations and
arguments.

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MR. MYERS:

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MR. ANTONOWICZ:

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*

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So I will

Thank you, Your Honor.
Thank you, Your Honor.
*

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