Comins v. Commissioner of Social Security

Filing 19

ORDER Defendant's motion for judgment on the pleadings is GRANTED.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. Signed by Magistrate Judge David E. Peebles on 11/19/2021. (ds)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
MARY C.,
Plaintiff,
v.

Civil Action No.
6:20-CV-0586 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
__________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
LAW OFFICES OF
STEVEN R. DOLSON
126 North Salina Street, Suite 3B
Syracuse, NY 13202

STEVEN R. DOLSON, ESQ.

FOR DEFENDANT
SOCIAL SECURITY ADMIN.
625 JFK Building
15 New Sudbury St
Boston, MA 02203

AMY BLAND, ESQ.

DAVID E. PEEBLES
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

Commissioner of Social Security (“Commissioner”), 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 November 18,
2021, 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

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 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:

November 19, 2021
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
--------------------------------------------x
MARY C.,
Plaintiff,
vs.

6:20-CV-586

COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a
Telephone Conference on November 18, 2021, 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:

DOLSON LAW OFFICE
Attorneys at Law
126 North Salina Street, Suite 3B
Syracuse, New York 13202
BY: STEVEN R. DOLSON, ESQ.

For Defendant:

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
J.F.K. Federal Building
Room 625
Boston, Massachusetts 02203
BY: AMY C. BLAND, 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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(The Court and all counsel present by

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telephone.)
THE COURT:

Let me begin by thanking you both for

excellent presentations, I've enjoyed working with you.
This case represents a challenge by the plaintiff

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pursuant to 42 United States Code Section 405(g) to a finding

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of the Commissioner of Social Security that plaintiff was not

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disabled at the relevant times and therefore ineligible for

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the Disability Insurance benefits that she sought.

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The background is as follows:

Plaintiff was born

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in February of 1956, she is currently 65 years of age, she

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was 59 years old at the time of the alleged amended onset

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date of January 24, 2015.

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New York in a mobile home with a partner.

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from her husband.

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in height, depending on the record reference.

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approximately 165 pounds.

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education but no GED and no vocational training, license, or

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certificates.

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Plaintiff has a driver's license.

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does not like to drive in inclement weather, which is quite

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often in Syracuse, New York or Mohawk, New York.

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The plaintiff lives in Mohawk,
She is separated

She is 5 foot 4 inches to 5 foot 6 inches
She weighs

Plaintiff has an 11th grade

She attended regular classes while in school.
She testified that she

Plaintiff stopped working in December of 2010.

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Prior to that time, she worked primarily as a cook in various

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settings, although her testimony and the record reflect that

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

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she has also worked as an aide, a bartender, in various

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factory positions, and a dairy farmer.

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Plaintiff broke her right hip when she fell on the

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floor getting out of bed on January 24, 2015.

She underwent

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a right hip hemiarthroplasty in January 2015.

She also

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suffers from COPD and lung disease as well as GERD, cervical

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degenerative disk disease although she testified that that is

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better and she has not had any cervical pain since 2015.

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experiences degenerative joint disease of the left AC joint,

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she has had right knee issues and underwent a repair of her

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right knee in 2008 or 2009.

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diverticulosis, and she has experienced chronic alcohol abuse

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and is a chronic smoker.

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pack per day and has for 30 years.

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She

She also has experienced

She testified that she smokes one

Mentally plaintiff experiences depression and

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anxiety.

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prescribed by her primary physician.

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any specialized inpatient or outpatient treatment for her

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mental conditions.

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be Dr. Karishma Circelli of St. Elizabeth's Medical Group in

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Utica, New York.

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She treats that primarily through medications
She has not undergone

Plaintiff's primary physician appears to

Plaintiff's activities of daily living include the

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ability to dress, groom, bathe, cook, clean, fold laundry,

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drive, she has experienced some socialization, and she

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watches television.

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

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Procedurally, plaintiff applied for Title II

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benefits on September 12, 2016.

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Supplemental Security Income payments.

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she alleged an onset date of December 31, 2010.

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hearing in this matter, plaintiff requested that the onset

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date be amended to January 24, 2015.

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granted although it does not appear to be reflected in the

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administrative law judge's decision.

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She is apparently receiving
In that application
During the

That request was

In support of her application, plaintiff claimed

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disability based on COPD, a right knee impairment, pulmonary

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nodules, depression, anxiety, acid reflux, and allergies.

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hearing was conducted on November 28, 2018 by Administrative

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Law Judge Melissa Hammock to address plaintiff's application.

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On January 16, 2019, ALJ Hammock issued an unfavorable

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decision which became a final determination of the agency on

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April 9, 2020, when the Social Security Appeals Council

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denied her application for review.

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on May 28, 2020, and is timely.

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A

This action was commenced

In her decision, which is highly unusual, ALJ

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Hammock applied the familiar five-step sequential test for

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determining disability.

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last insured on September 30, 2015, making the relevant time

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period January 24, 2015 to September 30, 2015.

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She first noted that plaintiff was

At step one, the ALJ concluded that plaintiff had
not engaged in substantial gainful activity between

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

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December 31, 2010, the original onset date, and September 30,

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2015.

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At step two, interestingly, the administrative law

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judge identified conditions that plaintiff experiences

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including COPD, sarcoidosis of the lungs, plantar and

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posterior calcaneal spurs, minor hallux valgus deformity,

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right hip fracture status post hemiarthroplasty, degenerative

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joint disease of the left AC joint and the right knee,

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degenerative disk disease of the cervical spine, GERD,

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diverticulosis, alcohol dependence, depression, and anxiety.

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She went on to conclude, however, that none of those

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conditions imposed more than minimal limitations on

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plaintiff's ability to perform basic work functions and

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therefore none of them constituted severe impairments.

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She went on, however, through the sequential

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analysis making an alternative finding at step two,

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concluding that plaintiff does suffer from a severe

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impairment, that being right hip fracture and COPD.

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At step three, ALJ Hammock concluded that

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plaintiff's conditions do not meet or medically equal any of

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the listed presumptively disabling conditions specifically --

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set forth in the Commissioner's regulations, specifically

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considering Listings 1.02 and 3.02.

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She next concluded that plaintiff retains, despite
her limitations, the ability to perform light work as defined

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

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in the regulations except that she can only occasionally

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stoop, kneel, crouch, crawl, climb ramps, climb stairs, and

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climb ladders, ropes, or scaffolds.

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concentrated exposure to temperature extremes, humidity, and

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pulmonary irritants.

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She also needs to avoid

At step four, ALJ Hammock concluded that plaintiff

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cannot perform her past relevant work as a cook because of

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the exertional requirements associated with that position.

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At step five, based on the testimony of a

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vocational expert, the administrative law judge concluded

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there are available positions in the national economy that

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plaintiff is capable of performing notwithstanding her

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limitations and identified two representative positions, as

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lunch cook and short order cook, and therefore found that

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plaintiff was not disabled at the relevant times.

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As you know, the court's function in this case is

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to determine whether proper legal principles were applied and

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the result is supported by substantial evidence, defined as

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such relevant evidence as a reasonable mind might accept as

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adequate to support a conclusion.

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deferential standard.

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standard, once an ALJ finds a fact, that fact can be rejected

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only if a reasonable fact finder were to have to conclude

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otherwise, as the Second Circuit noted in Brault v. Social

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Security Administration Commissioner, 683 F.3d 443 from the

It is an extremely

Under the substantial evidence

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

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Second Circuit, June of 2012.

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In support of her challenge to the determination,

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plaintiff raises three arguments.

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two determination that she does not suffer from severe

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impairments.

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capacity finding in the alternative portion of the decision

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is not supported since it is -- there are no medical opinions

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that were relied on to formulate that RFC, and relatedly she

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claims that there are gaps in the record and the ALJ failed

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She challenges the step

She argues that the residual functional

to fully develop the record.

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The first argument, step two requires the court --

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I'm sorry -- the ALJ to determine whether plaintiff suffers

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from any impairments that provide more than minimal

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limitations on her ability to perform basic work activities

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which is defined as the abilities and aptitudes necessary to

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do most jobs.

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minimus intended only to screen out the truly weakest of

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cases.

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Of course the mere presence of a disease or impairment for

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establishing when a person has been diagnosed or treated for

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a disease or impairment is not by itself sufficient.

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is whether any such limitation, any such impairment imposes

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more than minimal limitations on the ability to perform work

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functions.

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Southern District of New York 1995.

The test at step two quite honestly is de

Dixon v. Shalala, 54 F.3d 1019, Second Circuit 1995.

Coleman v. Shalala, 895 F.Supp. 50 at 53,

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

The key

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In this case, the focus appears to be on the right

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hip status post surgery repair and COPD.

The alternative

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step two finding of the administrative law judge found both

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exertional and nonexertional limitations when it found light

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work, among other things, so by definition, that is

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inconsistent with the earlier step two finding.

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supports that plaintiff's hip condition does impose more than

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minimal limitations on her ability to perform work functions.

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There's indication that she has used assistive devices like a

The record

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cane and a walker, although as I indicated during the oral

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argument, at page 402 Dr. Litchmore, the consultative

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examiner, noted that plaintiff did not use any assistive

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devices.

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Nonetheless I do find error at step two.
The question then becomes whether that error is

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harmless in light of the alternative findings of the

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administrative law judge, who proceeded to step five.

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requires a determination at the outset of whether the

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alternative residual functional capacity finding is supported

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by substantial evidence.

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course being the most that a plaintiff is capable of

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performing notwithstanding her, notwithstanding her

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impairments.

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January 24, 2015 to September 30, 2015.

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argues, there is no requirement that the record contain a

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medical opinion that tracks the RFC if there is sufficient

That

The residual functional capacity of

Again, the relevant period appears to be the
As the Commissioner

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

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evidence in the record to permit the ALJ to make an RFC

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determination.

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521 F.App'x 29 at 34, Second Circuit 2013.

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Commissioner of Social Security, 818 F.App'x 108 from the

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Second Circuit, 2020.

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physical impairment and sufficient evidence from which an

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administrative law judge can assess the effects of such an

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impairment on the ability to perform work functions, then

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there is no error.

Tankisi v. Commissioner of Social Security,
Also Cook v.

If a record shows a relatively modest

Thomas N. v. Commissioner of Social

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Security, 2020 WL 3286525 from the Northern District of

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New York, June 18, 2020, and there are other similar cases

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that support that proposition.

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In this case there is a consultative examination

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report from Dr. Litchmore.

The exam obviously, and resulting

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report were -- occurred more than a year after the date of

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last-insured status, that being November 29, 2016.

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isn't any indication that this is a look-back opinion.

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appears at 401 through 407, and so realistically is of little

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value, although I think it does support the RFC generally.

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Susan M. v. Commissioner of Social Security, 2019 WL 2754480

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from the Northern District of New York, July of 2019.

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opinion, Dr. Litchmore concluded that plaintiff has marked

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limitations on her ability to push, pull, lift, and carry

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heavy objects.

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inconsistent with the ability to perform light work.

There
It

In his

One can argue that that is not necessarily

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

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Focusing on the hip, plaintiff underwent surgery, corrective

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surgery in January 2015.

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was discharged February 24th, 2015.

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was an indication she was doing well at home, using her

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walker and was steady using her walker and she was only using

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Tylenol as needed to control her pain, that's at 330 to 332.

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In February, February 29, 2016, there was a physical exam

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which was normal, and there was a reference to no localized

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joint pain, that's at 325 to 329.

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She went through rehabilitation,
On March 3, 2015, there

So I believe the evidence is supportive of the RFC

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and provided a sufficient basis for the administrative law

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judge to render an opinion concerning the effects of

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plaintiff's hip on her ability to perform work functions

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notwithstanding the lack of a medical opinion from the

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relevant period.

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Turning to the COPD, in March of 2015, the record

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reflects no pulmonary symptoms, no dyspnea, hemoptysis or

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wheezing, plaintiff was advised to restart Spiriva, that's at

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page 332.

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prior to the date of last-insured status for her COPD.

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February 2016, there was a normal lung exam, indication she's

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using Spiriva.

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of breath, no dyspnea, no cough, 325 to 327.

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There doesn't appear to be any further treatment
In

She does not wake up at night with shortness

As Commissioner argues, it is plaintiff's burden to
establish not only an impairment but limitations associated

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

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with that impairment.

I find that that burden was not

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carried.

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concluded that plaintiff must avoid any respiratory

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irritants.

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the relevant period, and test results show moderate

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reversible obstructive lung disease.

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2009, 2010 do not support the level of impairment suggested

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and the need to avoid all irritants.

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infrequent COPD complaints, the RFC does require the

Dr. Litchmore, it is true in November 2016

As I indicated previously, this was not during

Early records from

The records show

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avoidance of concentrated exposure to irritants which is

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fully consistent with the fact that plaintiff is a chronic

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smoker.

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958595 from March of 2016.

Wheeler v. Commissioner of Social Security, 2016 WL

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In terms of her third argument, duty to develop the

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record, I did not find and plaintiff did not identify gaps as

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there were no medical opinions from the relevant period, I'm

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not sure how we would fill that gap in any event at this late

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date.

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have the sufficient amount of evidence to permit her to

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determine plaintiff's RFC.

But I find no error.

The administrative law judge did

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So in summary, I do find an error at step two but I

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find that it is harmless in light of the alternative findings

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which are supported by substantial evidence.

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therefore grant judgment on the pleadings to the defendant

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and order dismissal of plaintiff's complaint.

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

I will

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Let me add I hope you both have a wonderful and
safe Thanksgiving holiday.

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MR. DOLSON:

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MS. BLAND:

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Thank you, you too, Judge.
Thank you, your Honor.

You too.

(Proceedings Adjourned, 10:34 a.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 18th day of November, 2021.

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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]