Jackson v. Berryhill

Filing 17

ORDER: It is hereby ORDERED that the Defendant's 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. It is further ORDERED that 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 8/29/2018. (meb)

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

BERNICE J.,
Plaintiff,
v.

Civil Action No.
6:17-CV-1110 (DEP)

NANCY A. BERRYHILL, Acting Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF:
LEGAL AID SOCIEITY OF
MID-NEW YORK, INC.
221 South Warren Street
Suite 310
Syracuse, NY 13202

ELIZABETH V. KRUPAR, ESQ.

FOR DEFENDANT:
HON. GRANT C. JAQUITH
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198

CATHARINE ZURBRUGG, 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),
are cross-motions for judgment on the pleadings.1 Oral argument was
heard in connection with those motions on August 28, 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.

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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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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:

August 29, 2018
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
BERNICE J.,
Plaintiff,
vs.

6:17-CV-1110

NANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on August 28, 2018, at the
James Hanley Federal Building, 100 South Clinton
Street, Syracuse, New York, the HONORABLE DAVID E.
PEEBLES, United States Magistrate Judge, Presiding.
A P P E A R A N C E S
(By Telephone)
For Plaintiff:

LEGAL AID SOCIETY OF MID-NEW YORK, INC.
Attorneys at Law
221 South Warren Street, Suite 310
Syracuse, New York 13202
BY: ELIZABETH V. KRUPAR, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of Regional Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
BY: CATHARINE L. ZURBRUGG, ESQ.

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

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(In Chambers, Counsel present by telephone.)

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THE COURT:

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All right.

Thank you both for

excellent presentations.
I have before me an application for judicial review

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of an adverse determination by the Acting Commissioner

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pursuant to 42 United States Code Section 405(g).

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The background is as follows:

Plaintiff was born

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in December of 1971, she's currently 46 years old, was 42

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years old at the alleged onset of her disability.

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5 foot 2 inches in height and weighs 125 pounds.

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right-hand dominant.

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She has three adult children, one son and two daughters.

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has a driver's license and drives.

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grade education but did secure a GED.

She stands
She is

Plaintiff is married but lives alone.
She

Plaintiff has an 11th

In terms of work, plaintiff was employed from 1999

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to 2008 as a resident counselor working with disabled

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persons.

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service relation person with Bank of America doing primarily

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phone work.

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disability.

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From 2008 until December 2013, she was a customer

She went out of that position on long-term

Medically, plaintiff has been diagnosed as

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suffering from multiple sclerosis.

The diagnosis occurred in

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or around 2003.

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numbness, vision loss, fatigue, pain and weakness, as well as

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headaches.

She reports that it causes her to experience

She has treated with Dr. Lev Goldiner, a

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

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neurologist, since 2011.

She has experienced MRIs of the

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brain in January of 2014, July 2014, and September 2014, that

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are mixed in terms of demonstrating progression of the

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disease.

She also has a history of breast cancer.
Plaintiff also suffers from mental conditions,

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depression and anxiety primarily.

She has treated with

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Dr. Nalia Sinha, a licensed clinical social worker, Cynthia

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Chapple, who she sees weekly, a social worker Annette

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Edwards.

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The plaintiff has been over the years prescribed

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several medications for her physical and mental conditions

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including Xanax, Ativan, Aubagio which is for her MS,

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gabapentin, Cymbalta, and Ativan.

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According to 265, 269, 1013, and 1016, plaintiff

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has a fairly robust set of daily activities.

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yoga, she cooks, she watches television, plays cards, walks,

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she reads, she dresses, she can bathe, she does laundry, she

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visits her grandmother, she shops, she goes to church, and

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she cares for her pet, although the daughters assist her with

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some of her activities.

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She goes to

Procedurally, plaintiff applied for Title II

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Disability Insurance benefits on January 17, 2014, alleging

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an onset date of December 27, 2013.

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by Administrative Law Judge Bruce Fein on September 15, 2015.

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A supplemental hearing was conducted with a vocational expert

A hearing was conducted

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

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on May 31, 2016.

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2016 which was unfavorable to the plaintiff.

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final determination of the agency on August 18, 2017, when

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the Social Security Administration Appeals Council denied

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plaintiff's application for review.

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Judge Fein issued a decision on June 10,
That became a

In his decision, ALJ Fein applied the familiar
five-step sequential test for determining disability.

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At step 1, ALJ Fein concluded plaintiff had not

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engaged in substantial gainful activity since her alleged

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onset date.
At step 2, ALJ Fein concluded that plaintiff

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suffers from severe impairments including multiple sclerosis,

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depressive disorder, and an anxiety disorder.

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At step 3, plaintiff was found not to meet or

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medically equal the -- any of the listed presumptively

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disabling conditions set forth in the Commissioner's

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regulations.

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11.09, 12.04, and 12.06.

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was concluded that plaintiff could not meet the B criteria,

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examining such matters as daily living, social functioning,

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concentration, persistence and pace and episodes of

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decompensation, and similarly, the C criteria were not met.

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Specifically ALJ Fein examined the Listings
With regard to the latter two, it

ALJ Fein then concluded after surveying the record

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that plaintiff is capable of performing at basically a

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sedentary level with exceptions, specifically found that the

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

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claimant has a residual functional capacity to lift and carry

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10 pounds, sit six hours in an eight-hour workday, stand and

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walk four hours in an eight-hour workday.

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claimant is able to alternate between sitting and standing

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positions at one-hour intervals throughout the day, the

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claimant is unable to climb ladders, ropes, or scaffolds but

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can perform all other postural activities occasionally.

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is limited to simple, routine, repetitive tasks.

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she requires a low-stress job defined as only occasional

In addition, the

She

Finally,

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decision making, changes in work setting and judgment

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required.
At step 4, the administrative law judge concluded

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that plaintiff is not capable of performing her past relevant

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work, because of primarily the nonexertional demands, both

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were in the semi-skilled/skilled category, resident

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supervisor having an SVP of 6 and the CSR position, an SVP of

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5.

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With the assistance of a vocational expert, ALJ

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Fein concluded that plaintiff is capable of performing as a

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document preparer, an addresser, and order clerk and

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therefore is not disabled at the relevant times.

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As you know, my task is limited to determining

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whether the ALJ's findings are supported by substantial

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evidence and correct legal principles were applied.

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highly deferential standard.

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

It is a

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The first issue raised by the plaintiff is a due

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process violation based on the inability to respond to

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interrogatory responses by Dr. Didio, his assessments from

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November 6, 2015, set forth in Exhibits 49F through 51F.

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note that at the first hearing the administrative law judge

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on September 15, 2015 did advise the plaintiff who was

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represented by counsel that he might seek expert assistance,

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that's at page 105 of the record.

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there was a notice of hearing, that's at page 182 to 184 of

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the record, and that notice of continued hearing advised at

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page 183, you have a right to review the claim file.

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was another notice of hearing at March 27, 2015, that's at

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301, that indicated the file was available for review

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although that was prior to the first hearing.

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the Acting Commissioner actually in that regard made a

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mistake in saying that, at page 5 of the brief that that was

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two months before the supplemental hearing, it was actually a

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year before the supplemental hearing.

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represented by Ms. Blackshear, an attorney, there was no

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request for an opportunity to cross-examine or submit

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supplemental interrogatories to Dr. Didio, and the ALJ

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specifically at page 33 and again at 44 gave plaintiff an

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opportunity to bring anything else up that was desired.

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I

On December 28, 2015,

There

I note that

But plaintiff was

It appears from pages 44 to 47 that plaintiff's
counsel was aware of the medical opinions, so I think that

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

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this case is more akin to the Second Circuit's decision in

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Diaz v. Shalala, 59 F.3d 307, where it was essentially the

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court's opinion that the plaintiff knew or should have known

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that the -- that there was additional evidence, in that case

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it was a Workers' Compensation document.

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And I think this case is readily distinguishable

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from plaintiff's cited case Young v. Berryhill found at 2018

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WL 661414.

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the pro se plaintiff never received the interrogatories at

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issue because they were sent to the wrong address, and in

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that case the court said under those circumstances there was

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a due process violation.

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violation.

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That was a pro se plaintiff and it was clear that

So I don't find any due process

There's no question that, as a treating source,

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Dr. Goldiner is entitled to deference and his opinions are

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controlling, if they are not inconsistent with other

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substantial evidence.

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the regulations require the administrative law judge to

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consider when discounting or rejecting a treating source

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opinion, although the Second Circuit has said that those

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factors don't need to be rotely addressed as long as it is

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clear that they were considered.

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And certainly there are factors that

I agree with plaintiff -- with defendant's counsel

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that Dr. Goldiner's opinions, especially from September 24,

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2014, are not horribly inconsistent with the ALJ's RFC.

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

They

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are not at all inconsistent in terms of lift and carry,

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although I suppose you could argue they are because up to

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10 pounds occasionally versus 10 pounds without restriction,

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sit four hours in an eight-hour workday as opposed to six,

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stand two hours and walk two hours as opposed to four, but

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the ALJ was very specific in why Dr. Goldiner's opinions were

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being rejected.

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1020-1021 that plaintiff had a marked limitation in

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activities of daily living when plaintiff in fact at 1547

Dr. Goldiner found, for example, at

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advised that she was independent in activities of daily

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living.
The administrative law judge at pages 20 and 21

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gave a detailed account of why he did not give controlling

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weight to Dr. Goldiner's opinions.

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opinion was inconsistent with plaintiff's prior work while

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she was -- while she was suffering from MS, and there was no

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significant -- no evidence of significant worsening since she

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left work.

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take medications.

The key was that the

It was also based on plaintiff's reluctance to

The ALJ properly relied on the consultative

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examination of Dr. Perkins-Mwantuali, 5F, and the exam was

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pretty much unremarkable.

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strength.

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It discerned very minimal loss of

In terms of mental, the opinions of Dr. Sinha and
Licensed Clinical Social Worker Chapple were properly

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

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rejected and the rejection was explained at page 21 as being

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inconsistent with treatment notes and not supported by GAF.

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GAF scores included 51 at 1008 and 65 at 1099.

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The plaintiff -- the ALJ also properly relied on

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Dr. Fisher's consultative examination at 4F that supported

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the mental aspects of the RFC, again, based on an

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unremarkable examination, and finally, relied on the opinions

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of Dr. Didio at 49 through 51F.

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Annette Edwards' opinions were properly rejected,

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she was not an acceptable medical source and doesn't cite any

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clinical support, and it is totally inconsistent with

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plaintiff's history of daily activities and living alone.

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It was -- in the end, it's the ALJ's duty to weigh

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conflicting medical evidence, and as long as the result is

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supported by substantial evidence, the court must defer to

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the ALJ's weighing.

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source was properly discounted and explained, and that the

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ALJ's RFC is supported by substantial evidence.

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In the end, I find that the treating

In terms of evaluating the plaintiff's symptoms,

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the ALJ properly engaged in the required two-step analysis at

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pages 18 through 21, and discusses how he arrived at his

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determination that plaintiff's reported symptoms were not

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fully credible, and I find that even though, again, he did

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not rotely recite the factors that are supposed to be

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considered under the Social Security Ruling that governs,

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

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nonetheless I am able to glean his rationale and find that

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his credibility determination is supported by substantial

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evidence.

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So in sum, I find that proper legal principles were

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applied and the ALJ's decision is supported by substantial

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evidence.

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to the defendant and dismiss plaintiff's complaint.

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you both again, enjoy the rest of your summer.

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I will therefore grant judgment on the pleadings

MS. KRUPAR:

Thank you, your Honor.

MS. ZURBRUGG:

Thank you, your Honor.

(Proceedings Adjourned, 10:29 a.m.)

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

Thank

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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 28th day of August, 2018.

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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]