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)

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. § 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.

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Wright v. Colvin - 15-CV-1175

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(In chambers, via telephone:)

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THE COURT:

I have before me a request for judicial

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review of an adverse determination pursuant to 42, United

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States Code, Section 405(g).

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The background of this matter is as follows; the

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plaintiff was born in January of 1962 and is now 54 years

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old.

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married and lives with his wife.

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has a high school degree and two years of college education.

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He last worked in or about August of 2014 when, as

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counsel indicated, he attempted for three weeks to work with

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Mountain Lake Services assisting disabled individuals.

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also, worked in the steel and construction industry from 1998

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until April 24 of 2014 in various capacities.

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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

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primary physician is Dr. Zbigniew Wolczynski.

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treated with Dr. Joseph Arguelles, a neurosurgeon who saw him

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in April of 2014 and October of 2014.

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He has, also,

He has undergone MRI testing on July 31, 2007,

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February 20, 2014, and May 12, 2015, revealing multilateral

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degenerative disk disease, lateral and central stenosis and

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slight progression from the first to the second and the

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second to the third.

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He also underwent EMG testing by Dr. Honorio Dispo
on May 27, 2014, which revealed normal findings and no

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Wright v. Colvin - 15-CV-1175

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evidence of radiculopathy or peripheral polyneuropathies.

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He has been prescribed various medication for pain:

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Tramadol, Oxycontin, hydrocodone.

He has, also, been treated

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for anxiety -- general anxiety disorder with panic attacks

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and major depressive disorder and a history of marijuana

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abuse.

He's been prescribed Xanax, among other things.

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The procedural history is as follows:

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applied for Title II disability benefits on August 12th,

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2014, alleging an onset date of December 11, 2013.

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Plaintiff

A hearing was conducted by Administrative Law Judge

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Carl E. Stephan January 8th, 2015.

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decision on April 23, 2015, and that became a final

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determination of the agency on September 18, 2015, when the

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Social Security Administration Appeals Council denied

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plaintiff's request for review.

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ALJ Stephan issued a

In his decision, ALJ Stephan applied the

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now-familiar five-step sequential test for determining

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disability.

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At step one, he determined plaintiff had not

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engaged in substantial gainful activity since December 11,

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2013, although he did note the inconsistencies and vagueness

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concerning plaintiff's work in 2014.

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At step two, he determined that the plaintiff

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suffers from severe impairments, including lumbar spondylosis

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with radiculopathy, asthma, anxiety and depression.

He noted

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Wright v. Colvin - 15-CV-1175

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a history of cardiological problems which appear to have been

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controlled and not interfere with his ability to perform

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work-related functions.

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GERD with Barrett's esophagus, kidney stones and heart

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disorder as sufficiently severe to meet the requirements of

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step two.

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He, also, rejected hypertension,

At step three, he concluded that plaintiff's

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conditions did not individually or collectively meet or equal

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any of the listed presumptively disabling impairments in the

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regulations considering the 1.00 listings, musculoskeletal;

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the 3.00, respiratory; he also considered 12.04, 12.06 and

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12.08 but concluded that plaintiff could not meet either the

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B or the C criteria associated with those.

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He then surveyed the medical evidence and concluded

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that plaintiff retains the capacity to perform light work

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with exceptions as follows:

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and ramps, balance, stoop, kneel, crouch, crawl and operate

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foot controls but should not climb ladders or scaffolds and

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no exposure to concentrated respiratory irritants.

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He can occasionally climb stairs

He is able to understand, remember and carry out

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simple functions, perform simple work and make judgments on

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simple work-related decisions.

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occasionally, understand, remember and carry out more complex

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instructions, perform more complex tasks and make judgments

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on more complex work-related decisions.

Under supervision, he can

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Wright v. Colvin - 15-CV-1175

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He is capable of interacting with coworkers,

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supervisors and the public on a frequent but not constant

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basis and is capable of tolerating frequent changes in the

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work setting.

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Applying that RFC determination, the administrative

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law judge concluded that plaintiff is unable to perform his

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past relevant work because of its exertional requirements.

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He determined that, if plaintiff was able to perform a full

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range of light work under the grids and, particularly, grid

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Rule 202.14, a finding of no disability would be directed.

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He concluded, however, that there was a sufficient

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erosion of the job base on which the grids were predicated,

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that vocational expert testimony was required and, based on

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that testimony, concluded that plaintiff could perform the

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requirements as a parking lot, cashier, hospital TV rental

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clerk, a laboratory sample carrier and cleaner/housekeeping

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and, therefore, concluded that that plaintiff was not

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disabled.

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As you know, my task is limited.

The scope of

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review for the Court is deferential.

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correct legal principals were applied and substantial

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evidence supports the determination.

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I must determine if

I reviewed very carefully the records of

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Dr. Arguelles and Dr. Wolczynski in view of plaintiff's

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arguments that they were not properly treated -- considered

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Wright v. Colvin - 15-CV-1175

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as treating sources.

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require that that the opinions of a treating source

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concerning functional limitations must be deemed controlling

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and, if they are rejected, the ALJ has to explain the

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rejection and the weight given to those determinations.

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Clearly, the law and the regulations

I could not find any basis to conclude that either

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of those two physicians' opinions were rejected when it

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comes to functional limitations.

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Dr. Arguelles' opinions were given weight by the

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In fact, Dr. Wolczynski and

administrative law judge.
Dr. Wassef, I understand the arguments about his

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lack of expertise, perhaps, as an orthopedist or a

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neurosurgeon.

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can supply substantial evidence.

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are consistent with the medical evidence and his objective

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evaluation.

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be in no acute distress, gait normal.

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unable to stand and walk on heels and that he cannot squat.

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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

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that there was lordosis in the lumbar spine area and diffuse

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tenderness in the lumbar spine area but there was full

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flexion, extension, lateral flexion bilaterally and full

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rotary movement bilaterally in the lumbar spine area.

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Straight leg raise was negative bilaterally.

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determined that the claimant has moderate limitations in

And he

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Wright v. Colvin - 15-CV-1175

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regard to standing, walking, climbing and descending stairs,

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bending, squatting, lifting and operating foot controls.

3

No one quarrels with the fact that the plaintiff

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experiences pain.

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expected to produce pain but pain alone does not equal

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disability.

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He suffers from a condition that could be

I note that Dr. Wolczynski and Dr. Arguelles did

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not opine specifically regarding functional limitations.

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Dr. Arguelles did say on April 23, 2014, at Page 253, that he

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believed that the plaintiff's pain was relieved best by

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moderate level of activity and that all of his symptoms were

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worsened by very strenuous activity or maintenance of

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sedentary activity level.

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regard to his opinion on October 1, 2014, is that the

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plaintiff has a difficult time engaging in any kind of

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strenuous activity -- this is at Page 313 -- and that he is

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no longer able to do his work in labor and construction

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because of his back pain.

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Dr. Arguelles, all he said with

He said, I don't think that it is likely that a

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surgical procedure would be able to return him to a condition

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that would allow for heavy labor.

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potentially best in his interest to consider seeking

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long-term disability.

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not sure what that context is, but if he's meaning Social

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Security Disability benefits, of course, that's a matter

I believe it would be

Of course, long-term disability, we're

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Wright v. Colvin - 15-CV-1175

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that's reserved to the Commissioner.

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Dr. Melcher's opinions were given partial weight

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but the administrative law judge explained why he did not

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give full credit to that opinion and rejected the statement

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that the plaintiff, because of his psychiatric problems,

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may -- they may significantly interfere with his ability to

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function on a daily basis.

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stated that he relied, in part, on Dr. Ferrin's review of the

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records.

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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

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words, the burden to establish a greater RFC.

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credibility, I think, is key here.

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judge explained in detail at Pages 29 through 34 of the

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administrative transcript his reason for not fully crediting

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plaintiff's pain complaints.

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The issue of

The administrative law

He did acknowledge that he suffers from a condition

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that could reasonably be expected to produce the symptoms as

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testified, but he relied heavily on daily activities, the

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reports of plaintiff's daily activities in his reports to the

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agency and to the two consultative examiners.

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his relatively conservative treatment.

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receipt of unemployment and the certification of ability to

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work; and the fact that he was laid off and it doesn't appear

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that he was laid off due to his back condition.

He considered

He considered the

So, the

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Wright v. Colvin - 15-CV-1175

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credibility determination was properly explained and is

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supported by substantial evidence.

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At step five, the hypothetical that was provided to

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the Social Securitial expert was well-supported and,

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therefore, the determination of no disability is supported by

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substantial evidence.

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8
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So, I will grant judgment on the pleadings to the
defendant dismissing plaintiff's complaint.
Thank you both for excellent presentations.

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MS. ZURBRUGG:

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MR. SCHNEIDER:

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(Proceedings adjourned.)

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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