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)

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. §' 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

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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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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.

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_
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

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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
[phone]

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(In Chambers, Counsel present by telephone.)

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THE COURT:

All right, thank you, I'll have to let

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that be the last word.

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judicial review of an adverse determination by the Acting

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

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and 1383(c)(3).

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I have before me a request for

The background is as follows:

Plaintiff was born

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in February of 1961, is currently 56 years old, she was 50

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years old at the time of the alleged onset of her disability

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as amended.

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She lives with her daughter in a third floor apartment.

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has a high school degree and underwent a BOCES office

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technology course.

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not driven in quite some time.

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February of 2012.

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cashier in a store, as a Dairy Queen counter person, and a

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receiving clerk in a hardware store.

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included at page 207 of the administrative transcript.

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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

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December of 2011, since then has complained of headaches,

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blackouts, and dizziness.

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in Burlington, Vermont, with Dr. Robert Shapiro and Nurse

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Practitioner Sandra McGrath beginning in November of 2012.

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There have been several objective tests over time with no

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abnormal findings.

She has treated at Fletcher Allen

She has been prescribed Topamax and

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

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Depakote.

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Hospital that are found at 3F show significant testing with

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very little, if any, findings.

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unremarkable CT scan of the head at 285, a CT unremarkable,

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CT of the head again at 362, a brain MRI at 407 which

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revealed only mild left spheroid sinusitis with no other

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abnormality, a CT scan at 414 and again at 429, unremarkable.

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The plaintiff has been prescribed Topamax and Depakote for

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her headaches.

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I'll note that the records from Massena Memorial

Normal EEG at 283,

She also suffers from rheumatoid arthritis.

It has

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been described as mild and early at 693, 599, and 590.

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appears to have improved after being treated with

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methotrexate, and also Prednisone.

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condition by Dr. Jianghong Yu; suffers from asthma and COPD,

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has been treated by Dr. Vineet Bansal.

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doctor's records that she smoked two packs per day until

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February 2013 against medical advice.

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and is also treated with Albuterol.

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It

She is treated for that

It was noted in that

She has a nebulizer

She also suffers from degenerative disk disease,

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cervical and lumbar, diabetes, shoulder pain, hand and wrist

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pain, and ankle sprain, and she was a frequenter, at least

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for a time, at the Massena Memorial Hospital emergency room

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where she sought treatment for those conditions.

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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
[phone]

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February 14, 2012, that was later amended to November 2,

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2012.

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Robert Gale on December 18, 2014.

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decision on March 30, 2015.

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to the plaintiff, became a final determination of the agency

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when the Social Security Administration Appeals Council

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denied plaintiff's request for review on August 29, 2016.

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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

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determining disability, at step one finding that plaintiff

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did not engage in substantial gainful activity after her

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amended onset date; at step two, concluded that plaintiff

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suffers from severe conditions including rheumatoid

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arthritis, history of syncopal attacks, migraine headaches,

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degenerative disk disease of the cervical and lumbar spine,

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and Chronic Obstructive Pulmonary Disease, or COPD.

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three, ALJ Gale found that plaintiff's conditions do not meet

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or medically equal any of the listed presumptively disabling

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conditions set forth in the Commissioner's regulations.

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At step

After surveying the medical evidence and other

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available evidence in the record, ALJ Gale concluded that

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plaintiff retains the residual functional capacity or RFC to

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perform light work, because she is able to lift, carry, push,

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and/or pull 20 pounds occasionally and 10 pounds frequently.

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He went on to provide that the claimant is able to stand

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

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and/or walk for 30 minutes at a time and for six hours total

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in an eight-hour workday, claimant is able to sit for 30

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minutes at a time, and for six hours in an eight-hour

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workday.

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ropes, and scaffolds, she is able to rarely crawl and

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occasionally kneel, stoop, and crouch.

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to occasionally reach.

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tolerate no more than moderate exposure to bright flashing

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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

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and gases, but she must avoid workplace hazards such as

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unprotected heights and moving mechanical parts.

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At step four, the ALJ concluded that plaintiff is

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unable to perform any of her past relevant work positions,

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and turning to step five, after noting that if the medical

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vocational guidelines were applied, a finding of no

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disability would be directed, concluded that a vocational

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expert's testimony was required in order to address the

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nonexertional limitations found.

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After considering the vocational expert's

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testimony, ALJ Gale concluded that plaintiff is able to

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perform the functions of a shipping and receiving weigher and

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as a counter clerk, and is therefore not disabled.

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As you know, my task is limited.

I must determine

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whether correct legal principles were applied and substantial

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evidence supports the determination.

The -- my decision must

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

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give substantial deference to the Commissioner's

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determination.

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The first issue is treating physician.

Obviously

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treating physicians' opinions are normally controlling, and

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if they are not controlling -- they are not controlling if

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they are not consistent with other substantial evidence.

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the opinions are rejected as not controlling, the

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administrative law judge is directed by regulation to

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consider factors and assign a weight to be given to the

If

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opinion, considering the length of the treatment relationship

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and the frequency of examination, the nature and extent of

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the treatment relationship, the degree to which the medical

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source has supported his or her opinion, the degree of

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consistency between the opinion and the record as a whole,

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whether the opinion is given by a specialist, and other

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evidence which may be brought to the attention of the ALJ.

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The -- my experience has been that rarely, if ever,

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does an administrative law judge faithfully go through those

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factors one by one.

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need not slavishly recite each of the factors and analyze

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them so long as the determination allows for meaningful

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judicial review.

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The Second Circuit has said that the ALJ

In this case, what were rejected were opinions from

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Dr. Shapiro and Nurse Practitioner McGrath.

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rejected as being inconsistent with treatment notes.

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

They were
I've

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reviewed those treatment notes and agree with the

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administrative law judge.

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inconsistent.

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it's very clear that these opinions, which are rendered four

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months apart, differ in that one states that there is no

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limitation related to a medical -- mental impairment, that's

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at 656, and yet at 659, in May of 2014, the doctor and nurse

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practitioner find that the plaintiff is very limited in

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mental function in several areas, and they are inconsistent

They're also internally

I know that Mr. Hasseler argued otherwise, but

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internally.

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suggests are not as meaningful as opinions that are stated

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and supported.

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given.

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and EEG findings.

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Dr. Lorensen and Dr. Marasigan's opinions which can

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constitute substantial evidence.

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665 in the treatment notes, Dr. Shapiro opines that plaintiff

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is disabled and obviously that's a matter that's reserved to

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the Commissioner.

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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

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slavishly recite factors, there's no explanation given for

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the mental limitations, no explanation given for the

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limitation on the ability to use hands, and to sit.

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error -- I'm not convinced that Dr. Lorensen's misstatement

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is meaningful.

The

She performed an evaluation, she interviewed

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

20
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the plaintiff, performed an examination, and gave opinions.

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In terms of RFC, plaintiff bears the burden under

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Poupore of establishing the limitations associated with her

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medical conditions.

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Dr. Lorensen's opinions and Dr. Marasigan's.

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the RFC, again the ALJ also discussed the unremarkable test

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results, the treatment notes, the fact that Dr. Yu shows that

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her arthritis is mild and well controlled, and also the

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conservative treatment that plaintiff has undergone and her

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positive response to the medications, including Depakote and

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Topamax.

In this case the RFC draws support from
In arriving at

In terms of credibility, the plaintiff -- the ALJ

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applied the two-step, the proper two-step analysis at 17

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through 19 of the administrative transcript.

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are belied by Dr. Yu's reports.

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Dr. Lorensen did not report anything of concern in that area.

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The treatment notes of Dr. Shapiro and Nurse Practitioner

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McGrath often provide indication of normal motor exams.

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subjective -- the plaintiff's claims really are primarily

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based on subjective complaints, not supported by objective

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evidence.

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Pain complaints

In terms of dizziness,

The

The ALJ did consider plaintiff's work history,

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and -- but felt it was overcome by the various other factors

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including conservative treatment that she underwent.

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At step five, I've indicated the RFC is supported,

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

21
1

the hypothetical that was given to the vocational expert

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approximated the -- closely approximated the RFC and the

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vocational expert's testimony provided substantial evidence

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of plaintiff's ability to perform available work in the

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national and local economy, so I will grant judgment on the

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pleadings to the defendant, dismiss plaintiff's complaint.

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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.)

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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 1st day of June, 2017.

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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]