Mayette v. Commissioner of Social Security

Filing 12

ORDER: It is ORDERED that Defendant's motion for judgment on the pleadings is GRANTED. It is further ORDERED that 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. 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 6/2/2017. (mc)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK PATTIE A. MAYETTE, Plaintiff, v. Civil Action No. 7:16-CV-1297 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: CONBOY, McKAY, BACHMAN & KENDALL, LLP 407 Sherman Street Watertown, NY 13601 LAWRENCE HASSELER, ESQ. FOR DEFENDANT: HON. RICHARD S. HARTUNIAN United States Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 JUNE L. BYUN, 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. ยง' 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on June 1, 2017, 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. 2) The Acting Commissioner=s determination that the plaintiff was 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 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. I _ D U D Dated: ___________________________ David E. Peebles U.S. Magistrate Judge June 2, 2017 Syracuse, NY DENIED: ___________________________ David E. Peebles U.S. Magistrate Judge Dated: ____________________ Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x PATTIE A. MAYETTE, Plaintiff, vs. 7:16-CV-1297 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on June 1, 2017, 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: CONBOY, McKAY LAW FIRM Attorneys at Law 307 State Street Carthage, New York 13619 BY: LAWRENCE D. HASSELER, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional Counsel Region II 26 Federal Plaza - Room 3904 New York, New York 10278 BY: JUNE L. BYUN, ESQ. Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 14 (In Chambers, Counsel present by telephone.) 1 2 THE COURT: All right, thank you, I'll have to let 3 that be the last word. 4 judicial review of an adverse determination by the Acting 5 Commissioner pursuant to 42 United States Code Section 405(g) 6 and 1383(c)(3). 7 I have before me a request for The background is as follows: Plaintiff was born 8 in February of 1961, is currently 56 years old, she was 50 9 years old at the time of the alleged onset of her disability 10 as amended. 11 She lives with her daughter in a third floor apartment. 12 has a high school degree and underwent a BOCES office 13 technology course. 14 not driven in quite some time. 15 February of 2012. 16 cashier in a store, as a Dairy Queen counter person, and a 17 receiving clerk in a hardware store. 18 included at page 207 of the administrative transcript. 19 She stands 5 foot 2 inches, weighs 172 pounds. She She possesses a driver's license but has Plaintiff last worked in Her past work experiences include as a Her work history is Medically, plaintiff suffered a blackout in 20 December of 2011, since then has complained of headaches, 21 blackouts, and dizziness. 22 in Burlington, Vermont, with Dr. Robert Shapiro and Nurse 23 Practitioner Sandra McGrath beginning in November of 2012. 24 There have been several objective tests over time with no 25 abnormal findings. She has treated at Fletcher Allen She has been prescribed Topamax and JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 15 1 Depakote. 2 Hospital that are found at 3F show significant testing with 3 very little, if any, findings. 4 unremarkable CT scan of the head at 285, a CT unremarkable, 5 CT of the head again at 362, a brain MRI at 407 which 6 revealed only mild left spheroid sinusitis with no other 7 abnormality, a CT scan at 414 and again at 429, unremarkable. 8 The plaintiff has been prescribed Topamax and Depakote for 9 her headaches. 10 I'll note that the records from Massena Memorial Normal EEG at 283, She also suffers from rheumatoid arthritis. It has 11 been described as mild and early at 693, 599, and 590. 12 appears to have improved after being treated with 13 methotrexate, and also Prednisone. 14 condition by Dr. Jianghong Yu; suffers from asthma and COPD, 15 has been treated by Dr. Vineet Bansal. 16 doctor's records that she smoked two packs per day until 17 February 2013 against medical advice. 18 and is also treated with Albuterol. 19 It She is treated for that It was noted in that She has a nebulizer She also suffers from degenerative disk disease, 20 cervical and lumbar, diabetes, shoulder pain, hand and wrist 21 pain, and ankle sprain, and she was a frequenter, at least 22 for a time, at the Massena Memorial Hospital emergency room 23 where she sought treatment for those conditions. 24 25 Procedurally, she applied for Title II and Title XVI benefits on May 21, 2013, alleging an onset date of JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 16 1 February 14, 2012, that was later amended to November 2, 2 2012. 3 Robert Gale on December 18, 2014. 4 decision on March 30, 2015. 5 to the plaintiff, became a final determination of the agency 6 when the Social Security Administration Appeals Council 7 denied plaintiff's request for review on August 29, 2016. 8 9 A hearing was conducted by Administrative Law Judge Judge Gale issued a That decision, which was adverse In his decision, Administrative Law Judge Gale applied the well-known five-step sequential test for 10 determining disability, at step one finding that plaintiff 11 did not engage in substantial gainful activity after her 12 amended onset date; at step two, concluded that plaintiff 13 suffers from severe conditions including rheumatoid 14 arthritis, history of syncopal attacks, migraine headaches, 15 degenerative disk disease of the cervical and lumbar spine, 16 and Chronic Obstructive Pulmonary Disease, or COPD. 17 three, ALJ Gale found that plaintiff's conditions do not meet 18 or medically equal any of the listed presumptively disabling 19 conditions set forth in the Commissioner's regulations. 20 At step After surveying the medical evidence and other 21 available evidence in the record, ALJ Gale concluded that 22 plaintiff retains the residual functional capacity or RFC to 23 perform light work, because she is able to lift, carry, push, 24 and/or pull 20 pounds occasionally and 10 pounds frequently. 25 He went on to provide that the claimant is able to stand JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 17 1 and/or walk for 30 minutes at a time and for six hours total 2 in an eight-hour workday, claimant is able to sit for 30 3 minutes at a time, and for six hours in an eight-hour 4 workday. 5 ropes, and scaffolds, she is able to rarely crawl and 6 occasionally kneel, stoop, and crouch. 7 to occasionally reach. 8 tolerate no more than moderate exposure to bright flashing 9 lights and respiratory irritants such as fumes, odors, dust, Although the claimant is unable to climb ladders, The claimant is able Additionally, the claimant is able to 10 and gases, but she must avoid workplace hazards such as 11 unprotected heights and moving mechanical parts. 12 At step four, the ALJ concluded that plaintiff is 13 unable to perform any of her past relevant work positions, 14 and turning to step five, after noting that if the medical 15 vocational guidelines were applied, a finding of no 16 disability would be directed, concluded that a vocational 17 expert's testimony was required in order to address the 18 nonexertional limitations found. 19 After considering the vocational expert's 20 testimony, ALJ Gale concluded that plaintiff is able to 21 perform the functions of a shipping and receiving weigher and 22 as a counter clerk, and is therefore not disabled. 23 As you know, my task is limited. I must determine 24 whether correct legal principles were applied and substantial 25 evidence supports the determination. The -- my decision must JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 18 1 give substantial deference to the Commissioner's 2 determination. 3 The first issue is treating physician. Obviously 4 treating physicians' opinions are normally controlling, and 5 if they are not controlling -- they are not controlling if 6 they are not consistent with other substantial evidence. 7 the opinions are rejected as not controlling, the 8 administrative law judge is directed by regulation to 9 consider factors and assign a weight to be given to the If 10 opinion, considering the length of the treatment relationship 11 and the frequency of examination, the nature and extent of 12 the treatment relationship, the degree to which the medical 13 source has supported his or her opinion, the degree of 14 consistency between the opinion and the record as a whole, 15 whether the opinion is given by a specialist, and other 16 evidence which may be brought to the attention of the ALJ. 17 The -- my experience has been that rarely, if ever, 18 does an administrative law judge faithfully go through those 19 factors one by one. 20 need not slavishly recite each of the factors and analyze 21 them so long as the determination allows for meaningful 22 judicial review. 23 The Second Circuit has said that the ALJ In this case, what were rejected were opinions from 24 Dr. Shapiro and Nurse Practitioner McGrath. 25 rejected as being inconsistent with treatment notes. JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 They were I've 19 1 reviewed those treatment notes and agree with the 2 administrative law judge. 3 inconsistent. 4 it's very clear that these opinions, which are rendered four 5 months apart, differ in that one states that there is no 6 limitation related to a medical -- mental impairment, that's 7 at 656, and yet at 659, in May of 2014, the doctor and nurse 8 practitioner find that the plaintiff is very limited in 9 mental function in several areas, and they are inconsistent They're also internally I know that Mr. Hasseler argued otherwise, but 10 internally. 11 suggests are not as meaningful as opinions that are stated 12 and supported. 13 given. 14 and EEG findings. 15 Dr. Lorensen and Dr. Marasigan's opinions which can 16 constitute substantial evidence. 17 665 in the treatment notes, Dr. Shapiro opines that plaintiff 18 is disabled and obviously that's a matter that's reserved to 19 the Commissioner. 20 They're also check-the-box forms which case law There's little explanation for the opinions As I already referenced, there are normal CT, MRI, They are also inconsistent with I note that page 621 and As to the weight, again, there's no need to 21 slavishly recite factors, there's no explanation given for 22 the mental limitations, no explanation given for the 23 limitation on the ability to use hands, and to sit. 24 error -- I'm not convinced that Dr. Lorensen's misstatement 25 is meaningful. The She performed an evaluation, she interviewed JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 20 1 the plaintiff, performed an examination, and gave opinions. 2 In terms of RFC, plaintiff bears the burden under 3 Poupore of establishing the limitations associated with her 4 medical conditions. 5 Dr. Lorensen's opinions and Dr. Marasigan's. 6 the RFC, again the ALJ also discussed the unremarkable test 7 results, the treatment notes, the fact that Dr. Yu shows that 8 her arthritis is mild and well controlled, and also the 9 conservative treatment that plaintiff has undergone and her 10 positive response to the medications, including Depakote and 11 Topamax. In this case the RFC draws support from In arriving at In terms of credibility, the plaintiff -- the ALJ 12 13 applied the two-step, the proper two-step analysis at 17 14 through 19 of the administrative transcript. 15 are belied by Dr. Yu's reports. 16 Dr. Lorensen did not report anything of concern in that area. 17 The treatment notes of Dr. Shapiro and Nurse Practitioner 18 McGrath often provide indication of normal motor exams. 19 subjective -- the plaintiff's claims really are primarily 20 based on subjective complaints, not supported by objective 21 evidence. 22 Pain complaints In terms of dizziness, The The ALJ did consider plaintiff's work history, 23 and -- but felt it was overcome by the various other factors 24 including conservative treatment that she underwent. 25 At step five, I've indicated the RFC is supported, JODI L. HIBBARD, RPR, CRR, CSR (315) 234-8547 21 1 the hypothetical that was given to the vocational expert 2 approximated the -- closely approximated the RFC and the 3 vocational expert's testimony provided substantial evidence 4 of plaintiff's ability to perform available work in the 5 national and local economy, so I will grant judgment on the 6 pleadings to the defendant, dismiss plaintiff's complaint. 7 8 9 10 11 Thank you both for excellent presentations, I hope you have a good day. MR. HASSELER: MS. BYUN: Thank you, your Honor. Thank you, your Honor. (Proceedings Adjourned, 10:10 a.m.) 12 13 14 15 16 17 18 19 20 21 22 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 1st day of June, 2017. 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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