Longo v. Colvin

Filing 23

ORDER: as to Shelly Jo Longo, It is Ordered that the Defendants Motion for Judgment on the Pleadings is GRANTED, that the Commissioners determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits unde r the Social Security Act, is AFFIRMED. Therefore Plaintiff's # 1 Complaint is hereby DISMISSED in its entirety. The Clerk is directed to enter judgment and close this case. Signed by Magistrate Judge David E. Peebles on 7/22/2016. Transcript of Decision/Telephone Conference of 7/21/2016 attached. (jmb)

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

SHELLY JO LONGO,
Plaintiff,
v.

Civil Action No.
6:15-CV-430 (DEP)

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

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
OLINSKY LAW GROUP
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202

HOWARD D. OLINSKY, ESQ.
EDWARD A. WICKLUND, 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

HASEEB FATMI, ESQ.
DAVID L. BROWN, ESQ.
KAREN T. CALLAHAN, ESQ.
Special Assistant U.S. Attorneys

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 July 21, 2016, 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 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:

July 22, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
SHELLY JO LONGO,

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Plaintiff,
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vs.

6:15-CV-430

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CAROLYN W. COLVIN, Acting Commissioner of
Social Security,

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Defendant.
--------------------------------------------x
Transcript of a Decision held during a

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Telephone Conference on July 21, 2016, at the James

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Hanley Federal Building, 100 South Clinton Street,

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Syracuse, New York, the HONORABLE DAVID E. PEEBLES,

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United States Magistrate Judge, Presiding.

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A P P E A R A N C E S

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(By Telephone)
For Plaintiff:

OLINSKY LAW GROUP
Attorneys at Law
300 S. State Street
Suite 420
Syracuse, New York 13202
BY: EDWARD A. WICKLUND, ESQ.

For Defendant:

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SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: HASEEB FATMI, ESQ.

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Jodi L. Hibbard, RPR, CSR, CRR
Official United States Court Reporter
100 South Clinton Street
Syracuse, New York 13261-7367
[phone]

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

Very good.

I'll have to

let that be the last word.
I have before me a request for judicial review of

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an adverse determination of the Commissioner under 42 United

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States Code Section 405(g).

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Plaintiff was born in August of 1954 and is currently 61

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years old, was 53 years old at the date of her alleged onset

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of the disability.

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with her husband.

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and has taken one year of college courses.

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for 21 years, served as a licensed insurance agent and

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broker.

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coincidentally the date she alleges her disability onset

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occurred.

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unemployment.

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unemployment insurance ended.

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2008.

The background is as follows:

She's married and lives in Rome, New York
She has a high school degree or diploma
She drives.

She,

She was laid off in May of 2008, which is

She was laid off due to downsizing.

She drew

She looked for work until shortly after her
She's not worked since May of

She suffers from irritable bowel syndrome and

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Crohn's disease, that was diagnosed more than 10 years ago.

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She also suffers from gastroes -- esophageal reflux disease

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or GERD.

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and allergy and depression and anxiety.

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provider is Dr. Brian Alessi, A-l-e-s-s-i.

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she has seen Dr. Minhaj Siddiqi, M-i-n-h-a-j, Siddiqi,

She has a history of GERD, she suffers from asthma
Her primary care

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

For mental health

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S-i-d-d-i-q-i, and for her Crohn's disease, her specialist is

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Dr. Ajay, A-j-a-y, Goel, G-o-e-l.

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been prescribed Cymbalta, Abilify, Xanax, BuSpar, Wellbutrin,

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Evista, Singulair, Zyrtec, and Klonopin.

She has at various times

She procedurally applied for benefits under

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Title II of the Social Security Act in August of 2011.

A

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hearing was conducted by Administrative Law Judge F. Patrick

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Flanagan who rendered an adverse decision on December 13,

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2012.

That decision was vacated and the matter was remanded

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by the Social Security Administration Appeals Council on

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February 7, 2014.

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Flanagan on July 22, 2014.

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August 27, 2014.

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Council denied plaintiff's request for review of that

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determination on February 12, 2015, making the ALJ's decision

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a final determination of the agency.

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A second hearing was conducted by ALJ
ALJ Flanagan issued a decision on

The Social Security Administration Appeals

In his second decision, ALJ Flanagan applied the

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familiar five-step sequential test for determining

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disability, concluded that plaintiff had not engaged in

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substantial gainful activity from the time of her onset until

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the time that her insured status ended on December 31, 2013;

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found at step 2 that plaintiff suffers from severe

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impairments including IBS/Crohn's disease (in good control),

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GERD, asthma, depression, and anxiety.

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At step 3, he concluded that the plaintiff's

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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conditions did not meet or equal any of the listed

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presumptively disabling conditions set forth in the

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regulations.

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After surveying the evidence, ALJ Flanagan

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concluded that plaintiff retains the RFC to perform less than

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a full range of light work.

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lift and/or carry and push and pull 20 pounds occasionally,

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10 pounds frequently, stand and/or walk six hours and sit six

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hours in an eight-hour workday.

Specifically he found she can

She also must avoid

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concentrated exposure to fumes, gases, cold temperatures

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below 65 degrees, smoke or dust-filled environments.

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Mentally, he found that she cannot perform

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fast-paced, although it says "faced" in the decision,

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production work, and could not do work involving

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responsibility for the safety of others, negotiation,

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persuasion, or confrontation with others.

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deal with normal productivity and can relate to supervisors,

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coworkers, and the public.

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Otherwise, she can

Applying that residual functional capacity, the ALJ

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concluded that plaintiff is not able to perform her past

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relevant work.

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if she were able to perform light work, Rules 202.15 and

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202.07 would direct a finding of no disability.

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After surveying the grids and concluding that

He, however, elicited testimony from a vocational
expert and concluded that plaintiff is capable of performing

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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in three positions where there is work available in the

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national economy, including as a policyholder information

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clerk, a claims clerk 2, and an outside industry insurance

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industry order clerk, therefore, concluded that the plaintiff

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is not disabled.
As you know, my task is to determine whether the

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findings of the administrative law judge are supported by

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substantial evidence and correct legal principles were

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applied.

It is a highly deferential standard.
First with regard to the argument that the record

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was not fully developed and that the gastroenterologist

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should have been recontacted, obviously there is a

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requirement imposed on the Commissioner and the ALJ as the

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Commissioner's designate to develop a complete medical

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history and if gaps exist, to develop the record more fully.

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And that obligation exists even in cases where the plaintiff

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has the benefit of legal counsel.
In this case, I do not find that there were any

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gaps.

It is the plaintiff's burden to establish disability

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at steps 1 through 4, or a basis for disability, I should

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say.

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having to take two to six restroom breaks per day.

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not specify other than to say that the duration varied.

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cannot imagine that recontacting her gastroenterologist would

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have shed light on how long it would take her at each of

The plaintiff was questioned at both hearings about her

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

She did
I

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those breaks.

So I do not find that there was a critical gap

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and a failure to develop the record.
The issue of transferability is very interesting

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and I enjoyed looking into it and learning more about the

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distinction between traits or aptitudes and skills when it

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comes to transferability because this is one of the few cases

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that I've seen frankly where transferability is pivotal.

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I found most helpful the Social Security Ruling 82-41.

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defines a skill as follows:

And

It

A skill is knowledge of a work

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activity which requires the exercise of significant judgment

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that goes beyond the carrying out of simple job duties and is

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acquired through performance of an occupation which is above

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the unskilled level (requires more than 30 days to learn).

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It is practical and familiar knowledge of the principles and

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processes of an art, science, or trade combined with the

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ability to apply them in practice in a proper and approved

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manner.

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measurements, reading blueprints, and setting up and

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operating complex machinery.

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special advantage over unskilled workers in the labor market.

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And it goes on to describe how skills are gained.

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This includes activities like making precise

A skill gives a person a

I reviewed carefully the Second Circuit's decision

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in Draegert v. Barnhart, and also the Second Circuit's

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decision in Lamorey v. Barnhart, which I believe was also

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cited, and I am unable to conclude that the skills that were

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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identified by the vocational expert are not truly skills when

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it comes to considering transferability.
At page 47 as was indicated, the vocational expert

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identified as skills customer service and basic

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clerical-oriented skills, business clerical, and also

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obviously an understanding of the insurance, insurance

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policy.

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plaintiff is capable in his view of performing, he went on to

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indicate how those skills would relate to each.

When he identified the three jobs that exist that

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For example, with regard to policyholder

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information clerk, he stated the individual's understanding

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of insurance, specifically with her broker background and the

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customer service skills, would transfer directly into this

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type of work.
When he was dealing with the second position,

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claims clerk 2, he indicated the skills that would transfer

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to that position again would be the individual's customer

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service skills and an understanding of the insurance industry

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along with her clerical skills from the job she performed as

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an insurance agent.
With regard to the third position, he felt that her

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skills obtained as a customer service individual working on

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the telephone would transfer directly to that job as order

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clerk.

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So I do not find any flaw or error with regard to

JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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transferability.
The third issue raised by the plaintiff is

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credibility, and the administrative law judge correctly

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applied the two-step credibility test.

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First, looking to whether the objective clinical

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evidence demonstrated an impairment that could reasonably

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produce the pain that is, or symptoms that are testified to,

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and then secondly, considered the various activities -- I'm

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sorry, the various factors in determining what extent of

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credibility to attribute to the plaintiff's testimony, and I

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think I already indicated that I've reviewed carefully the

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administrative law judge's decision and credibility

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assessment and I find that it does meet the requirements of

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the applicable regulations.

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So in sum, I will grant judgment on the pleadings

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to the defendant, affirm the Commissioner's determination,

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and order dismissal of plaintiff's complaint.

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Thank you both for excellent presentations, it was
an interesting case, and I hope you have a good summer.

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MR. WICKLUND:

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MR. FATMI:

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Thank you, your Honor.

Thank you so much, your Honor.

(Proceedings Adjourned, 2:27 p.m.)

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]

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CERTIFICATE OF OFFICIAL REPORTER

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I, JODI L. HIBBARD, RPR, CRR, CSR, Federal

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Official Realtime Court Reporter, in and for the

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United States District Court for the Northern

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District of New York, DO HEREBY CERTIFY that

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pursuant to Section 753, Title 28, United States

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Code, that the foregoing is a true and correct

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transcript of the stenographically reported

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proceedings held in the above-entitled matter and

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that the transcript page format is in conformance

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with the regulations of the Judicial Conference of

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the United States.

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Dated this 21st day of July, 2016.

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/S/ JODI L. HIBBARD

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JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter

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JODI L. HIBBARD, RPR, CRR, CSR
[phone]