Ward v. Commissioner of Social Security

Filing 21

ORDER that deft's motion for judgment on the pleadings is GRANTED; the Commissioner's determination that the pltf was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. The Clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING pltf's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 8/31/2016. (see)

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

SHANA L. WARD,
Plaintiff,
v.

Civil Action No.
7:15-CV-344 (DEP)

COMMISSIONER OF SOCIAL SECURITY,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
CONBOY, McKAY LAW FIRM
307 State Street
Carthage, New York 13619

LAWRENCE D. HASSELER, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN ROBERT R. SHRIVER, ESQ.
United States Attorney
Special Assistant U.S. Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
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
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 18, 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

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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1)

Defendant=s motion for judgment on the pleadings is

GRANTED.
2)

The Commissioner=s determination that the plaintiff was not

disabled at the relevant times, and thus is not entitled to benefits under the
Social Security Act, is AFFIRMED.
3)

The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff=s complaint in its entirety.

Dated:

August 31, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
SHANA L. WARD,

vs.

15-CV-344

CAROLYN W. COLVIN, Acting Commissioner of Social Security.
----------------------------------------------------x
Transcript of DECISION held on August 18, 2016,
at the James Hanley U.S. Courthouse, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding.

A P P E A R A N C E S
For Plaintiff:
(Via Telephone)

CONBOY McKAY LAW FIRM
307 State Street
Carthage, New York 13619
BY: LAWRENCE D. HASSELER, ESQ.

For Defendant:
(Via Telephone)

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

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Ward v. Colvin - 15-CV-344

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(In chambers, via telephone:)

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THE COURT:

I have a request for judicial review of

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an adverse determination by the acting commissioner under

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Section 405(g) of Title 42, United States Code.

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The background associated with this case is as

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follows:

The plaintiff is a female.

She was born in

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February of 1983 and is currently 33 years old.

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Harrisville, New York with a husband, a two-year-old son, and

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part-time with a three-year-old stepson.

She lives in

She is relatively

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recently married and was pregnant at the time of the hearing

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in this matter.

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She has an 11th grade education and has not secured

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a GED.

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relevant work includes as a CNA, a cashier and a home health

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aide.

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She last worked in December of 2012.

Her past

In December of 2012, she was diagnosed with

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invasive ductile carcinoma.

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January of 2013 followed by chemotherapy to May of 2013 and

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radiation from June through August of 2013.

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underwent Herceptin treatments every three weeks ending on

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February 19, 2014.

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She underwent a lumpectomy in

Thereafter, she

In May of 2013, she reports having begun to

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experience lower back pain.

An MRI was performed on

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November 13, 2013 -- that's at 729 of the administrative

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transcript -- with modest results.

It showed a dessicated

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Ward v. Colvin - 15-CV-344

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disk at T12-L1 but lack of any other findings.

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2013, plaintiff claims that she began to experience

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depression.

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an inhaler to address; migraines; and an overactive bladder.

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In January of

She, also, suffers from asthma, which she uses

She sees Dr. Samir Desai, who's an oncologist;

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physician's assistant, Melinda Rosner of the Beaver River

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Health Center.

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For activities, she plays with her son, watches
television, works on the computer.

She cooks, cleans, does

laundry, shops and can take care of her personal needs.
Procedurally, the plaintiff applied for Title II

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disability benefits on December 26th, 2012, alleging an onset

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date of December 18, 2012.

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A hearing was conducted by Administrative Law Judge

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John P. Ramos on March 13, 2014.

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conducted by Judge Ramos on September 11, 2014, at which time

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the testimony of a vocational expert was elicited.

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A supplemental hearing was

On October 15, 2014, Administrative Law Judge Ramos

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issued an unfavorable decision that was made a final

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determination of the Commissioner when the Social Security

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Administration Appeals Council denied plaintiff's request for

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review on January 30, 2015.

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The administrative law judge's decision applied the

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well-known 5-step sequential test for determining disability.

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At Step 1, ALJ Ramos concluded plaintiff had not

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Ward v. Colvin - 15-CV-344

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engaged in substantial gainful activity since her alleged

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onset date of December 18, 2012.

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At Step 2, he concluded she suffers from breast

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cancer, degenerative disk disease of the lumbar spine and

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asthma as severe impairments, rejecting other alleged

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impairments, including urinary frequency, depression and

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asthma, as not sufficiently severe to limit her ability to

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perform work functions.

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At Step 3, the administrative law judge concluded

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that the plaintiff's conditions did not meet or medically

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equal any of the listed presumptively disabling conditions;

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specifically, considering 13.10, breast cancer; and 1.04,

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spinal disorders, as well as 3.03 pulmonary/asthma.

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After surveying the record, ALJ Ramos concluded

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plaintiff retains the residual functional capacity to lift

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and/or carry 10 pounds frequently, 20 pounds occasionally; to

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sit for six hours in an eight-hour day; and stand and/or walk

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for two hours in an eight-hour day.

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He further indicated the claimant should change

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positions from sitting to standing, or vice versa, at will

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but need not need leave the work station or area.

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limited to occasional reaching with the right arm but,

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otherwise, has no reaching or manipulative limitations.

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should not climb ladders or scaffolds and, otherwise, can

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perform postural activities, such as balancing, stooping,

She is

She

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Ward v. Colvin - 15-CV-344

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kneeling, crouching and crawling on an occasional basis.

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The ALJ also limited the plaintiff in that she

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should not be exposed to respiratory irritants or extremes of

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temperature.

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Applying this RFC, ALJ Ramos concluded that

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plaintiff is not capable of performing any of her past

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relevant work but, nonetheless, found, with the assistance of

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the vocational expert's testimony, that she is able to

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perform work in the national economy that is available,

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including as a clerk, an usher, and a chaperone, all of which

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fall in the light category with an SVP of 2.

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The Commissioner, therefore, concluded that
plaintiff was not disabled at the relevant times.
As you know, the standard of review is extremely

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deferential.

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principles were applied and the determination is supported by

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substantial evidence.

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substantial evidence, it could be argued, supports either a

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finding of disability or a finding of no disability.

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long as the Commissioner's decision is supported by

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substantial evidence, it must be upheld.

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I must determine whether correct legal

And this is one of those cases where

But, as

Turning, first, to the argument regarding

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physician's assistant Rosner, I note that, initially,

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PA Rosner indicated that she could not render an opinion.

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That's at 390.

She did ultimately give two assessments:

One

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in September of 2013 and one in March of 2014.

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September 2013 is, very clearly, based on the functional

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capacity analysis conducted by, primarily, a physical

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therapist based on a one-time examination and is, at best,

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vague as to whether or not it represents a finding of the

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maximum limitations of the plaintiff.

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The

In any event, the March 2014, report is, clearly,

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based on plaintiff's reports of her symptoms and it was noted

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that the report was prepared with the assistance of both the

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plaintiff and counsel.
The PA Rosner is, clearly, not an acceptable

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medical source and ALJ Ramos fully explained, at Pages 23 and

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24 of his opinion, why he was not according weight to the

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opinions of PA Rosner, among other things.

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treatment notes, as I have, and I agree that they do not

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fully support the reports of PA Rosner.

He reviewed the

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In making that determination, I think the ALJ,

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also, considered it relevant that Dr. Desai, plaintiff's

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treating oncologist, declined to render any opinion

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concerning her limitations.

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That's at 648 of the record.

With regard to the FCE results, I think that the

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ALJ's interpretation is reasonable.

It was a one-time exam

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by a person that's not an acceptable medical source and, in

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any event, it was conducted very close in time to when

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Dr. Noia conducted his consultative exam and Dr. Noia's

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Ward v. Colvin - 15-CV-344

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results of his exam are markedly different and he opines,

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literally, that the claimant has -- I'm sorry, not Dr. Noia.

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Dr. Lorensen.

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does not have any significant limitations other than to avoid

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smoke, dust and other respiratory irritants.

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421 of the administrative transcript.

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And she opines very clearly that the plaintiff

That's at Page

It was within the prerogative of the administrative

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law judge to weigh these competing determinations and decide

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which to accept.

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With regard to Dr. Littell and LCSW Horsey, he,

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clearly, committed error in not recognizing that this was

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signed off on by Dr. Littell.

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record, however, that Dr. Littell would qualify as a treating

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source.

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and she only began a month before seeing the Carthage

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Behavioral Center.

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an analysis as to why he did not accept the opinions given by

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LCSW Horsey, which would apply equally to Dr. Littell.

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findings are grossly inconsistent with those of Dr. Noia and

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Dr. Mangold at Page 94.

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history of treatment by either LCSW Horsey or Dr. Littell.

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So, I agree that it was harmless error to not recognize that

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it was signed off on by Dr. Littell.

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There's no indication in the

There's no indication he ever examined the plaintiff

The Commissioner at 17 and 18 did provide

The

And, as I indicated, there's no

With Dr. Martinucci, again, the plaintiff had only
begun recently seeing Dr. Martinucci.

There's no

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Ward v. Colvin - 15-CV-344

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longitudinal history of visits and treatment.

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February 28, 2014, consultative report at 877-78.

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recommends injections.

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will concede, that she did receive four injections and she

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stated in her hearing testimony that they did not help her

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but there is no evidence that she returned to Dr. Martinucci

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or that other treatment options were considered.

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There's the
He

There is indication in the record, I

In terms of staleness, there is an argument to be

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made that, perhaps, some of the evidence in the record was

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stale and maybe didn't reflect the progression of her back

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condition, in particular; but I think that was cured by the

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questionnaire -- the interrogatories to Dr. Indiher and his

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opinions rendered on May 14, 2014.

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any event, the May 2013 opinions fall within the relevant

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time period and, so, were properly considered.

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That's at 46F.

And, in

The last argument raised is credibility analysis.

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The ALJ engaged in the proper two-step process at Pages 21

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and 22.

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daily activities, made a credibility determination that is

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entitled to deference and I find no error in that credibility

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determination.

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job at explaining the credibility analysis but I understand

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the pressures that they are under and I find that it does

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provide a basis for meaningful judicial review of his

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determination.

He reviewed, carefully, the accounts of plaintiff's

As always, the ALJ could have done a better

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Ward v. Colvin - 15-CV-344

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So, I will grant judgment on the pleadings to the

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defendant.

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substantial evidence and resulted from the application of

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proper legal principles.

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I conclude that the determination is supported by

Thank you both for excellent presentations. I hope
you enjoy the rest of your summer.

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MR. HASSELER:

Thank you, your Honor.

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MR. SCHRIVER:

Thank you, your Honor.

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(Proceedings adjourned, 10:38 a.m.)

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C E R T I F I C A T I O N

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I, DIANE S. MARTENS, Registered Professional

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Reporter, DO HEREBY CERTIFY that I attended the foregoing

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proceedings, took stenographic notes of the same, that

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the foregoing is a true and correct copy of same and the

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whole thereof.

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____________________________

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DIANE S. MARTENS, FCRR

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