Wright v. Colvin

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 9/6/2016. (see)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK BENJALEE WRIGHT, Plaintiff, v. Civil Action No. 8:15-CV-1175 (DEP) CAROLYN W. COLVIN, Acting 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 CATHERINE L. ZURGRUGG, 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. ยง 405(g), are cross-motions for judgment on the pleadings. 1 Oral argument was heard in connection with those motions on August 30, 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 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 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: September 6, 2016 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ----------------------------------------------------x BENJALEE WRIGHT, vs. 15-CV-1175 CAROLYN W. COLVIN, Acting Commissioner of Social Security. ----------------------------------------------------x Transcript of DECISION held on August 30, 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: CATHARINE ZURBRUGG, ESQ. 2 Wright v. Colvin - 15-CV-1175 1 (In chambers, via telephone:) 2 THE COURT: I have before me a request for judicial 3 review of an adverse determination pursuant to 42, United 4 States Code, Section 405(g). 5 The background of this matter is as follows; the 6 plaintiff was born in January of 1962 and is now 54 years 7 old. 8 married and lives with his wife. 9 has a high school degree and two years of college education. 10 He last worked in or about August of 2014 when, as 11 counsel indicated, he attempted for three weeks to work with 12 Mountain Lake Services assisting disabled individuals. 13 also, worked in the steel and construction industry from 1998 14 until April 24 of 2014 in various capacities. 15 Was 52 years old at the time of the hearing. He's His children are grown. He He, He drives. He suffers from a chronic lumbar condition. His 16 primary physician is Dr. Zbigniew Wolczynski. 17 treated with Dr. Joseph Arguelles, a neurosurgeon who saw him 18 in April of 2014 and October of 2014. 19 He has, also, He has undergone MRI testing on July 31, 2007, 20 February 20, 2014, and May 12, 2015, revealing multilateral 21 degenerative disk disease, lateral and central stenosis and 22 slight progression from the first to the second and the 23 second to the third. 24 25 He also underwent EMG testing by Dr. Honorio Dispo on May 27, 2014, which revealed normal findings and no 3 Wright v. Colvin - 15-CV-1175 1 evidence of radiculopathy or peripheral polyneuropathies. 2 He has been prescribed various medication for pain: 3 Tramadol, Oxycontin, hydrocodone. He has, also, been treated 4 for anxiety -- general anxiety disorder with panic attacks 5 and major depressive disorder and a history of marijuana 6 abuse. He's been prescribed Xanax, among other things. 7 The procedural history is as follows: 8 applied for Title II disability benefits on August 12th, 9 2014, alleging an onset date of December 11, 2013. 10 Plaintiff A hearing was conducted by Administrative Law Judge 11 Carl E. Stephan January 8th, 2015. 12 decision on April 23, 2015, and that became a final 13 determination of the agency on September 18, 2015, when the 14 Social Security Administration Appeals Council denied 15 plaintiff's request for review. 16 ALJ Stephan issued a In his decision, ALJ Stephan applied the 17 now-familiar five-step sequential test for determining 18 disability. 19 At step one, he determined plaintiff had not 20 engaged in substantial gainful activity since December 11, 21 2013, although he did note the inconsistencies and vagueness 22 concerning plaintiff's work in 2014. 23 At step two, he determined that the plaintiff 24 suffers from severe impairments, including lumbar spondylosis 25 with radiculopathy, asthma, anxiety and depression. He noted 4 Wright v. Colvin - 15-CV-1175 1 a history of cardiological problems which appear to have been 2 controlled and not interfere with his ability to perform 3 work-related functions. 4 GERD with Barrett's esophagus, kidney stones and heart 5 disorder as sufficiently severe to meet the requirements of 6 step two. 7 He, also, rejected hypertension, At step three, he concluded that plaintiff's 8 conditions did not individually or collectively meet or equal 9 any of the listed presumptively disabling impairments in the 10 regulations considering the 1.00 listings, musculoskeletal; 11 the 3.00, respiratory; he also considered 12.04, 12.06 and 12 12.08 but concluded that plaintiff could not meet either the 13 B or the C criteria associated with those. 14 He then surveyed the medical evidence and concluded 15 that plaintiff retains the capacity to perform light work 16 with exceptions as follows: 17 and ramps, balance, stoop, kneel, crouch, crawl and operate 18 foot controls but should not climb ladders or scaffolds and 19 no exposure to concentrated respiratory irritants. 20 He can occasionally climb stairs He is able to understand, remember and carry out 21 simple functions, perform simple work and make judgments on 22 simple work-related decisions. 23 occasionally, understand, remember and carry out more complex 24 instructions, perform more complex tasks and make judgments 25 on more complex work-related decisions. Under supervision, he can 5 Wright v. Colvin - 15-CV-1175 1 He is capable of interacting with coworkers, 2 supervisors and the public on a frequent but not constant 3 basis and is capable of tolerating frequent changes in the 4 work setting. 5 Applying that RFC determination, the administrative 6 law judge concluded that plaintiff is unable to perform his 7 past relevant work because of its exertional requirements. 8 He determined that, if plaintiff was able to perform a full 9 range of light work under the grids and, particularly, grid 10 Rule 202.14, a finding of no disability would be directed. 11 He concluded, however, that there was a sufficient 12 erosion of the job base on which the grids were predicated, 13 that vocational expert testimony was required and, based on 14 that testimony, concluded that plaintiff could perform the 15 requirements as a parking lot, cashier, hospital TV rental 16 clerk, a laboratory sample carrier and cleaner/housekeeping 17 and, therefore, concluded that that plaintiff was not 18 disabled. 19 As you know, my task is limited. The scope of 20 review for the Court is deferential. 21 correct legal principals were applied and substantial 22 evidence supports the determination. 23 I must determine if I reviewed very carefully the records of 24 Dr. Arguelles and Dr. Wolczynski in view of plaintiff's 25 arguments that they were not properly treated -- considered 6 Wright v. Colvin - 15-CV-1175 1 as treating sources. 2 require that that the opinions of a treating source 3 concerning functional limitations must be deemed controlling 4 and, if they are rejected, the ALJ has to explain the 5 rejection and the weight given to those determinations. 6 Clearly, the law and the regulations I could not find any basis to conclude that either 7 of those two physicians' opinions were rejected when it 8 comes to functional limitations. 9 Dr. Arguelles' opinions were given weight by the 10 11 In fact, Dr. Wolczynski and administrative law judge. Dr. Wassef, I understand the arguments about his 12 lack of expertise, perhaps, as an orthopedist or a 13 neurosurgeon. 14 can supply substantial evidence. 15 are consistent with the medical evidence and his objective 16 evaluation. 17 be in no acute distress, gait normal. 18 unable to stand and walk on heels and that he cannot squat. 19 But it is true that a consultative examination The opinions of Dr. Wassef He stated at Page 305, the claimant appeared to He did say he was He conducted a musculoskeletal exam. He determined 20 that there was lordosis in the lumbar spine area and diffuse 21 tenderness in the lumbar spine area but there was full 22 flexion, extension, lateral flexion bilaterally and full 23 rotary movement bilaterally in the lumbar spine area. 24 Straight leg raise was negative bilaterally. 25 determined that the claimant has moderate limitations in And he 7 Wright v. Colvin - 15-CV-1175 1 regard to standing, walking, climbing and descending stairs, 2 bending, squatting, lifting and operating foot controls. 3 No one quarrels with the fact that the plaintiff 4 experiences pain. 5 expected to produce pain but pain alone does not equal 6 disability. 7 He suffers from a condition that could be I note that Dr. Wolczynski and Dr. Arguelles did 8 not opine specifically regarding functional limitations. 9 Dr. Arguelles did say on April 23, 2014, at Page 253, that he 10 believed that the plaintiff's pain was relieved best by 11 moderate level of activity and that all of his symptoms were 12 worsened by very strenuous activity or maintenance of 13 sedentary activity level. 14 regard to his opinion on October 1, 2014, is that the 15 plaintiff has a difficult time engaging in any kind of 16 strenuous activity -- this is at Page 313 -- and that he is 17 no longer able to do his work in labor and construction 18 because of his back pain. 19 Dr. Arguelles, all he said with He said, I don't think that it is likely that a 20 surgical procedure would be able to return him to a condition 21 that would allow for heavy labor. 22 potentially best in his interest to consider seeking 23 long-term disability. 24 not sure what that context is, but if he's meaning Social 25 Security Disability benefits, of course, that's a matter I believe it would be Of course, long-term disability, we're 8 Wright v. Colvin - 15-CV-1175 1 that's reserved to the Commissioner. 2 Dr. Melcher's opinions were given partial weight 3 but the administrative law judge explained why he did not 4 give full credit to that opinion and rejected the statement 5 that the plaintiff, because of his psychiatric problems, 6 may -- they may significantly interfere with his ability to 7 function on a daily basis. 8 stated that he relied, in part, on Dr. Ferrin's review of the 9 records. 10 That's at 300. And he properly When it comes to the RFC, plaintiff's burden to 11 establish the RFC and that burden was not met; in other 12 words, the burden to establish a greater RFC. 13 credibility, I think, is key here. 14 judge explained in detail at Pages 29 through 34 of the 15 administrative transcript his reason for not fully crediting 16 plaintiff's pain complaints. 17 The issue of The administrative law He did acknowledge that he suffers from a condition 18 that could reasonably be expected to produce the symptoms as 19 testified, but he relied heavily on daily activities, the 20 reports of plaintiff's daily activities in his reports to the 21 agency and to the two consultative examiners. 22 his relatively conservative treatment. 23 receipt of unemployment and the certification of ability to 24 work; and the fact that he was laid off and it doesn't appear 25 that he was laid off due to his back condition. He considered He considered the So, the 9 Wright v. Colvin - 15-CV-1175 1 credibility determination was properly explained and is 2 supported by substantial evidence. 3 At step five, the hypothetical that was provided to 4 the Social Securitial expert was well-supported and, 5 therefore, the determination of no disability is supported by 6 substantial evidence. 7 8 9 So, I will grant judgment on the pleadings to the defendant dismissing plaintiff's complaint. Thank you both for excellent presentations. 10 MS. ZURBRUGG: 11 MR. SCHNEIDER: 12 (Proceedings adjourned.) 13 14 15 16 17 18 19 20 21 22 23 24 25 Thank you, your Honor. Goodbye. C E R T I F I C A T I O N I, DIANE S. MARTENS, Registered Professional Reporter, DO HEREBY CERTIFY that I attended the foregoing proceedings, took stenographic notes of the same, that the foregoing is a true and correct copy of same and the whole thereof. ____________________________ DIANE S. MARTENS, FCRR

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