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)

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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 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 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 3 1 1 2 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SHELLY JO LONGO, 3 Plaintiff, 4 vs. 6:15-CV-430 5 6 CAROLYN W. COLVIN, Acting Commissioner of Social Security, 7 8 9 Defendant. --------------------------------------------x Transcript of a Decision held during a 10 Telephone Conference on July 21, 2016, at the James 11 Hanley Federal Building, 100 South Clinton Street, 12 Syracuse, New York, the HONORABLE DAVID E. PEEBLES, 13 United States Magistrate Judge, Presiding. 14 A P P E A R A N C E S 15 (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: 16 SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: HASEEB FATMI, ESQ. 17 18 19 20 21 22 23 24 25 Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 11 (In Chambers, Counsel present by telephone.) 1 THE COURT: 2 3 All right. Very good. I'll have to let that be the last word. I have before me a request for judicial review of 4 5 an adverse determination of the Commissioner under 42 United 6 States Code Section 405(g). 7 Plaintiff was born in August of 1954 and is currently 61 8 years old, was 53 years old at the date of her alleged onset 9 of the disability. 10 with her husband. 11 and has taken one year of college courses. 12 for 21 years, served as a licensed insurance agent and 13 broker. 14 coincidentally the date she alleges her disability onset 15 occurred. 16 unemployment. 17 unemployment insurance ended. 18 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 19 20 Crohn's disease, that was diagnosed more than 10 years ago. 21 She also suffers from gastroes -- esophageal reflux disease 22 or GERD. 23 and allergy and depression and anxiety. 24 provider is Dr. Brian Alessi, A-l-e-s-s-i. 25 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 (315) 234-8547 For mental health 12 1 S-i-d-d-i-q-i, and for her Crohn's disease, her specialist is 2 Dr. Ajay, A-j-a-y, Goel, G-o-e-l. 3 been prescribed Cymbalta, Abilify, Xanax, BuSpar, Wellbutrin, 4 Evista, Singulair, Zyrtec, and Klonopin. She has at various times She procedurally applied for benefits under 5 6 Title II of the Social Security Act in August of 2011. A 7 hearing was conducted by Administrative Law Judge F. Patrick 8 Flanagan who rendered an adverse decision on December 13, 9 2012. That decision was vacated and the matter was remanded 10 by the Social Security Administration Appeals Council on 11 February 7, 2014. 12 Flanagan on July 22, 2014. 13 August 27, 2014. 14 Council denied plaintiff's request for review of that 15 determination on February 12, 2015, making the ALJ's decision 16 a final determination of the agency. 17 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 18 familiar five-step sequential test for determining 19 disability, concluded that plaintiff had not engaged in 20 substantial gainful activity from the time of her onset until 21 the time that her insured status ended on December 31, 2013; 22 found at step 2 that plaintiff suffers from severe 23 impairments including IBS/Crohn's disease (in good control), 24 GERD, asthma, depression, and anxiety. 25 At step 3, he concluded that the plaintiff's JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 13 1 conditions did not meet or equal any of the listed 2 presumptively disabling conditions set forth in the 3 regulations. 4 After surveying the evidence, ALJ Flanagan 5 concluded that plaintiff retains the RFC to perform less than 6 a full range of light work. 7 lift and/or carry and push and pull 20 pounds occasionally, 8 10 pounds frequently, stand and/or walk six hours and sit six 9 hours in an eight-hour workday. Specifically he found she can She also must avoid 10 concentrated exposure to fumes, gases, cold temperatures 11 below 65 degrees, smoke or dust-filled environments. 12 Mentally, he found that she cannot perform 13 fast-paced, although it says "faced" in the decision, 14 production work, and could not do work involving 15 responsibility for the safety of others, negotiation, 16 persuasion, or confrontation with others. 17 deal with normal productivity and can relate to supervisors, 18 coworkers, and the public. 19 Otherwise, she can Applying that residual functional capacity, the ALJ 20 concluded that plaintiff is not able to perform her past 21 relevant work. 22 if she were able to perform light work, Rules 202.15 and 23 202.07 would direct a finding of no disability. 24 25 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 (315) 234-8547 14 1 in three positions where there is work available in the 2 national economy, including as a policyholder information 3 clerk, a claims clerk 2, and an outside industry insurance 4 industry order clerk, therefore, concluded that the plaintiff 5 is not disabled. As you know, my task is to determine whether the 6 7 findings of the administrative law judge are supported by 8 substantial evidence and correct legal principles were 9 applied. It is a highly deferential standard. First with regard to the argument that the record 10 11 was not fully developed and that the gastroenterologist 12 should have been recontacted, obviously there is a 13 requirement imposed on the Commissioner and the ALJ as the 14 Commissioner's designate to develop a complete medical 15 history and if gaps exist, to develop the record more fully. 16 And that obligation exists even in cases where the plaintiff 17 has the benefit of legal counsel. In this case, I do not find that there were any 18 19 gaps. It is the plaintiff's burden to establish disability 20 at steps 1 through 4, or a basis for disability, I should 21 say. 22 having to take two to six restroom breaks per day. 23 not specify other than to say that the duration varied. 24 cannot imagine that recontacting her gastroenterologist would 25 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 (315) 234-8547 She did I 15 1 those breaks. So I do not find that there was a critical gap 2 and a failure to develop the record. The issue of transferability is very interesting 3 4 and I enjoyed looking into it and learning more about the 5 distinction between traits or aptitudes and skills when it 6 comes to transferability because this is one of the few cases 7 that I've seen frankly where transferability is pivotal. 8 I found most helpful the Social Security Ruling 82-41. 9 defines a skill as follows: And It A skill is knowledge of a work 10 activity which requires the exercise of significant judgment 11 that goes beyond the carrying out of simple job duties and is 12 acquired through performance of an occupation which is above 13 the unskilled level (requires more than 30 days to learn). 14 It is practical and familiar knowledge of the principles and 15 processes of an art, science, or trade combined with the 16 ability to apply them in practice in a proper and approved 17 manner. 18 measurements, reading blueprints, and setting up and 19 operating complex machinery. 20 special advantage over unskilled workers in the labor market. 21 And it goes on to describe how skills are gained. 22 This includes activities like making precise A skill gives a person a I reviewed carefully the Second Circuit's decision 23 in Draegert v. Barnhart, and also the Second Circuit's 24 decision in Lamorey v. Barnhart, which I believe was also 25 cited, and I am unable to conclude that the skills that were JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 identified by the vocational expert are not truly skills when 2 it comes to considering transferability. At page 47 as was indicated, the vocational expert 3 4 identified as skills customer service and basic 5 clerical-oriented skills, business clerical, and also 6 obviously an understanding of the insurance, insurance 7 policy. 8 plaintiff is capable in his view of performing, he went on to 9 indicate how those skills would relate to each. When he identified the three jobs that exist that 10 For example, with regard to policyholder 11 information clerk, he stated the individual's understanding 12 of insurance, specifically with her broker background and the 13 customer service skills, would transfer directly into this 14 type of work. When he was dealing with the second position, 15 16 claims clerk 2, he indicated the skills that would transfer 17 to that position again would be the individual's customer 18 service skills and an understanding of the insurance industry 19 along with her clerical skills from the job she performed as 20 an insurance agent. With regard to the third position, he felt that her 21 22 skills obtained as a customer service individual working on 23 the telephone would transfer directly to that job as order 24 clerk. 25 So I do not find any flaw or error with regard to JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 17 1 2 transferability. The third issue raised by the plaintiff is 3 credibility, and the administrative law judge correctly 4 applied the two-step credibility test. 5 First, looking to whether the objective clinical 6 evidence demonstrated an impairment that could reasonably 7 produce the pain that is, or symptoms that are testified to, 8 and then secondly, considered the various activities -- I'm 9 sorry, the various factors in determining what extent of 10 credibility to attribute to the plaintiff's testimony, and I 11 think I already indicated that I've reviewed carefully the 12 administrative law judge's decision and credibility 13 assessment and I find that it does meet the requirements of 14 the applicable regulations. 15 So in sum, I will grant judgment on the pleadings 16 to the defendant, affirm the Commissioner's determination, 17 and order dismissal of plaintiff's complaint. 18 19 Thank you both for excellent presentations, it was an interesting case, and I hope you have a good summer. 20 MR. WICKLUND: 21 MR. FATMI: 22 Thank you, your Honor. Thank you so much, your Honor. (Proceedings Adjourned, 2:27 p.m.) 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 21st day of July, 2016. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25 JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547

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