LaValley v. Colvin

Filing 18

ORDER: It is Ordered that Defendant's # 17 Motion for Judgment on the Pleadings is GRANTED, Plaintiff's # 13 Motion for Judgment on the Pleadings is DENIED. Therefore the Commissioner's determination that the plaintiff was not disa bled at the relevant times, and thus is not entitled to benefits under the Social Security Act is AFFIRMED and the # 1 Complaint filed by Cora LaValley is hereby DISMISSED in its entirety. {Transcript of Decision attached} Signed by Magistrate Judge David E. Peebles on 3/17/2016. (jmb)

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

CORA LaVALLEY,
Plaintiff,
v.

Civil Action No.
8:15-CV-850 (DEP)

CAROLYN W. COLVIN, Commissioner
of Social Security,
Defendant.

APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
SCHNEIDER LAW FIRM
57 Court Street
Plattsburgh, New York 12901

MARK A. SCHNEIDER, ESQ.

FOR DEFENDANT
HON. RICHARD S. HARTUNIAN
United States Attorney
P.O. Box 7198
100 S. Clinton Street
Syracuse, NY 13261-7198
DAVID E. PEEBLES
U.S. MAGISTRATE JUDGE

KAREN T. CALLAHAN, ESQ.
Special Assistant U.S. Attorney

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 March 10, 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)

Defendant=s motion for judgment on the pleadings is

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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.
2

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:

March 17, 2016
Syracuse, NY

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
----------------------------------------------------x
CORA LaVALLEY,

vs.

15-CV-850

CAROLYN W. COLVIN, Acting Commissioner of Social Security.
----------------------------------------------------x
Transcript of DECISION held on March 10, 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)

MARK A. SCHNEIDER, ESQ.
57 Court Street
Plattsburgh, New York 12901

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: KAREN T. CALLAHAN, ESQ.

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LaValley v. Commissioner - 15-CV-850

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(Via Telephone:)

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THE COURT:

I have before me a request for

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judicial review of an adverse Commissioner's determination

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under 42, United States Code, Section 405(g).

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The background is as follows:

The plaintiff was

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born in January of 1969 and is currently 47 years old.

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was 45 years old at the time of the administrative hearing in

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this matter.

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She

The plaintiff has a 10th grade education but did
receive a GED following leaving high school early.
She last worked in 2011.

She worked up until 2010

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as a CNA and home health aide but was let go in 2010.

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worked privately in 2011.

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leaving work in 2012 and testified that, while drawing

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unemployment, she was looking for a job either as a CNA or as

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a telephone operator of some sort.

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She

She drew unemployment after

She suffers from several diagnosed medical and

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mental conditions, including morbid obesity.

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foot 5 inches and, at the time of the hearing, was 351 pounds

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in weight.

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She stands 5

She has back pain, numbness in her legs and hands.

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She's been diagnosed with bulging disks.

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and paresthetica.

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and adjustment disorder.

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testified, helps.

She has meralgia

She suffers from major depressive disorder
She takes Effexor, which, she

She's currently not undergoing any

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LaValley v. Commissioner - 15-CV-850

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psychological or psychiatric counseling or treatment.

She

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suffers from asthma that appears to be controlled; Celiac

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disease, also controlled; sleep apnea, which has been the

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subject of testing and appears to be controlled.

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For her back, she has tried physical therapy, aqua

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therapy, injections, including blocks; although, she did not

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take the advice to try a TENS unit.

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For daily activities she can dress, bathe, sweep,
cook, perform laundry with help.

She can use a computer.

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She visits family and she shops with help.

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trailer with her 12-year-old daughter who is, according to

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her, self-sufficient and independent and assists with her

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daily activities.

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She lives in a

Her primary physician is Dr. Maurice Racine from

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the North Country Family Health Facility.

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FNP Marilyn McClure.

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Pain Management where she has seen Nurse Practitioner Dawn

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Adamson and Dr. Thierry Bonnabesse.

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She, also, sees

She has been to Champlain Spine and

Procedurally, plaintiff applied for disability

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insurance benefits and supplemental security income payments

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on October 10, 2013, alleging an onset date of November 8,

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2011.

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A hearing was conducted by Administrative Law Judge

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Paul Kelly on May 6th, 2014.

The administrative law judge

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issued a decision on May 22nd, 2014.

That decision became a

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LaValley v. Commissioner - 15-CV-850

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final determination of the agency when the Appeals Council

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denied review on July 1, 2015.

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In his decision, ALJ Kelly applied the well-known

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five-step sequential evaluation for determining disability.

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After concluding the plaintiff was insured through

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December 31, 2015, he concluded that she had not engaged in

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substantial gainful activity, since the alleged onset date.

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He found that she suffers from severe impairments

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at Step 2, including, as I previously indicated, obesity,

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spine disorder, degenerative joint disease, pain disorder,

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injury to peripheral nerves, meralgia, paresthetica of right

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side, major depressive disorder and adjustment disorder.

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He concluded, however, that none of those, either

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individually or collectively, meets or equals the listed

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presumptively disabling conditions set forth in the

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Commissioner's regulations.

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The ALJ then surveyed the available medical

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evidence and concluded that plaintiff retains the residual

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functional capacity to lift up to 10 pounds occasionally;

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stand and walk for about 2 hours in an 8-hour work day; and

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sit for up to 6 hours in an 8-hour workday with normal

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breaks.

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sitting or standing positions for about 1 to 2 minutes at a

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time at 30-minute intervals throughout the day.

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The claimant needs to be allowed to alternate

The claimant can occasionally climb ramps or

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LaValley v. Commissioner - 15-CV-850

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stairs, balance and stoop.

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ropes or scaffolds, kneel, crouch or crawl.

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She can never climb ladders,

The claimant needs to avoid concentrated exposure
to cold, heat, wetness and humidity.

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She needs to avoid concentrated exposure to

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irritants such as fumes, odor, dust, gases and poorly

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ventilated areas.

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heights and hazardous machinery.

She needs to avoid exposure to unprotected

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The ALJ concluded at Step 4, that plaintiff is not

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able to perform her past relevant work due to the exertional

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requirements and her limitations as expressed in the RFC

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findings.

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At Step 5, the ALJ elicited the testimony of a

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vocational expert who concluded, based on a hypothetical

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approximating the RFC finding, that plaintiff is capable of

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performing in three separate jobs, including as a table

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worker, an ampoule sealer and a bench hand and concluded,

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therefore, that she was not disabled at the relevant times.

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As you know, my task is limited to determining

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whether the correct legal principles were applied and there

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doesn't appear to be any significant argument there and

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whether there is support of substantial evidence.

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Turning first to Nurse Practitioner McClure, she is

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not a proper medical source; although, she certainly -- her

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opinions, having treated the plaintiff over an extended

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period of time, are subject to being considered.
The ALJ did give some weight to Nurse Practitioner

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McClure's determinations, which I don't find, necessarily, in

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total conflict with the findings of the ALJ.

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on Page 573, the nurse practitioner stated that she suffers

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from low back pain with radiation and that she is unable to

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return to employment, including heavy lifting.

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As I indicated,

The question of whether very limited in lifting,
walking, standing and so forth is consistent or inconsistent

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with the RFC is unclear.

He did reject the sit/stand every

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10 to 15 minutes and stated his reasoning for doing that and

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it is supported by substantial evidence.

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herself testified, at Page 57 of the administrative

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transcript, she is capable of sitting for 30 minutes.

The plaintiff

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She, also, did state to Dr. Kabeli, in connection

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with the sleep apnea study, that on February 12, 2013, that

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she is capable of walking 3 miles a day.

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the administrative transcript.

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That's at 243 of

The determination, including the RFC, is supported

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by Dr. Wassef and as a consultative examiner, his opinions

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can be included as providing substantial evidence.

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full flexion, extension, lateral, flexion bilaterally and

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full rotary movement bilaterally of the lumbar region and he

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found that the straight leg raise bilaterally was negative.

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That's at Page 354.

He found

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LaValley v. Commissioner - 15-CV-850

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The Commissioner's determination is, also,

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supported by the MRI that was conducted on January 23, 2013,

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which showed very modest findings at L4-L5.

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disk bulge, protrusion or extrusion, at L4-5 continued.

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There is no evidence of a disk bulge, protrusion or extrusion

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at L5-S1.

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This is contacting the intrathecal sac but there is no

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central stenosis and the impression given was small disk

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protrusion.

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No evidence of a

Small left paracentral disk protrusion present.

There is no significant central or neuro

foraminal narrowing.
I'll note that it is true that Dr. Racine, at

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Page 576, the treating physician, did make a statement

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concerning disability.

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respect to that statement.

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disability is a matter reserved to the Commissioner and,

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secondly, he himself indicates that it is expected to last

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three weeks and that the patient could return to work on

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October 25, 2012.

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However, there are two issues with
The first is that the question of

To the extent of any psychological -- and I don't

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understand this to be the primary focus of plaintiff's

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argument -- but, to the extent of the psychological portion

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of the RFC finding, that is supported by the consultative

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examination of Dr. Brett Hartman.

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In terms of combination, it's my view, from
reviewing the Commissioner's determination and the ALJ's

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finding, that he did consider all of plaintiff's conditions,

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many of which are well-controlled and do not appear to

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present any limitations that would relate to work functions

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and that would include the sleep apnea, asthma, Celiac

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disease and depression.

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In terms of credibility, I believe the

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Commissioner's determination is well-supported and it was

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properly explained.

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I think that the fact that the plaintiff was

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drawing unemployment, was looking for work and certified that

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she is capable of working is a factor.

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outcome determinative.

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consider his personal observations -- again, perhaps not

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dispositive -- but he also considered her daily activities as

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reported to Dr. Wassef in her disability report.

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It certainly is not

But the ALJ is, also, entitled to

So, in sum, I conclude that the Commissioner's

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determination is supported by substantial evidence and will,

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therefore, grant judgment on the pleadings to the defendant

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dismissing plaintiff's complaint.

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Thank you both for excellent presentations and I

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hope you have a great afternoon.

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MS. CALLAHAN:

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MR. SCHNEIDER:

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(Proceedings were adjourned.)

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You, too.

Thank you, your Honor.

Thank you.

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LaValley v. Commissioner - 15-CV-850

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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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