Mesec v. Colvin

Filing 14

ORDER that deft's motion for judgment on the pleadings is GRANTED; that the Acting 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 8/31/2017. (see)

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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK DEBORAH MESEC, Plaintiff, v. Civil Action No. 8:16-CV-1354 (DEP) NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 Defendant. APPEARANCES: OF COUNSEL: FOR PLAINTIFF: EAGLIN LAW OFFICE P.O. Box 6033 Syracuse, NY 13217 PAUL B. EAGLIN, ESQ. OSTERHOUT DISABILITY LAW 521 Cedar Way, Suite 200 Oakmont, PA 15139 KARL E. OSTERHOUT, ESQ. FOR DEFENDANT: HON. GRANT JAQUITH Acting United States Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 MARIA P. SANTANGELO, ESQ. Special Assistant U.S. Attorney Carolyn W. Colvin, the former Acting Commissioner of Security, who was the originally-named defendant, was recently replaced by Nancy A. Berryhill, who currently serves in that position. Because Carolyn W. Colvin was sued only in her official capacity, Nancy A. Berryhill has been automatically substituted for Carolyn W. Colvin as the named defendant. See Fed. R. Civ. 25(d). 1 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), are crossmotions for judgment on the pleadings. 2 Oral argument was heard in connection with those motions on August 29, 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 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 2 ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is GRANTED. 2) 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. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff=s complaint in its entirety. Dated: August 31, 2017 Syracuse, NY 3 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x DEBORAH MESEC, Plaintiff, vs. 8:16-CV-1354 NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant. ------------------------------------------------------x DECISION - August 29, 2017 James Hanley Federal Building, Syracuse, New York HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding A P P E A R A N C E S (by telephone) For Plaintiff: OSTERHOUT DISABILITY LAW Attorneys at Law 521 Cedar Way Oakmont, PA 15139 BY: KARL E. OSTERHOUT, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: MARIA FRAGASSI SANTANGELO, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 2 Decision - 16-cv-1354 - 8/29/2017 THE COURT: 1 I have before me a request for judicial 2 review of an adverse determination by the Acting Commissioner 3 of Social Security pursuant to 42, United States Code, 4 Section 405(g). The background is as follows. 5 The plaintiff was born in August of 1954. She is 6 currently 63 years old, was 60 at the time of the hearing in 7 this matter, and 56 at the time of her alleged disability 8 onset. She lives with her husband in Plattsburgh and four 9 10 grandchildren ranging in ages at the time of the hearing from 11 11 to 18. 12 has a ninth grade education. 13 drives approximately two times per week. 14 dominant. 15 She spends from November to April in Florida. She has a driver's license and She is right hand She last worked in June of 2011 as a school bus 16 driver in a position she had held for 23 years. 17 2011 she retired. 18 She In June of It was a planned retirement. When she applied for disability benefits, she 19 alleged, at page 129, that she suffered from diabetes, which 20 was actually diagnosed seven years before the 2014 hearing, 21 and that includes low sugar spikes, obesity, high blood 22 pressure/hypertension and high cholesterol. 23 her diabetes with endocrinologist Dr. C. Alexander-Decker. 24 She has also in the past received some treatment 25 She treats for for cervical and lumbar back pain, including from Christopher 3 Decision - 16-cv-1354 - 8/29/2017 1 Benoit, a chiropractor. 2 Compensation treatment from April 2005 until April 2010, when 3 she was released after her condition had improved, and it was 4 indicated that she was working with no disability. 5 page 632. 6 for low back complaints between June 2006 and July 2006, 7 approximately four times. 8 She received some sort of Workers' That's at It also indicated that she did undergo treatment In terms of her back pain, however, she told 9 Dr. Wassef that she had not discussed her lower back pain 10 with her primary care provider, Dr. Tracy Orkin, D.O., and 11 she denied back pain to Dr. Orkin in October 2017. 12 page 611 and also at 615. 13 That's at She has suffered in the past from RLS and she has 14 been prescribed Klonopin. 15 engages in daily activities, including cooking, cleaning, 16 laundry, shopping, she takes care of her personal hygiene, 17 watches television, listens to the radio, socializes with 18 friends, goes camping, goes to church, walks. 19 and 628 it indicates that she walks sometimes a half mile. 20 When she's in Florida she engages in community activities, 21 goes to potluck suppers and goes to flea markets and she 22 finds that she loses weight. 23 She reports to Dr. Wassef that she At page 619 In 2011 after retiring she took her grandson to 24 Arkansas for a fishing tournament. That's at page 378. 25 it is indicated that she has or at least has planned to And 4 Decision - 16-cv-1354 - 8/29/2017 1 continue as a substitute bus driver after her retirement. 2 Procedurally, plaintiff applied for disability 3 insurance benefits under Title II of the Act on June 19, 4 2013, alleging a disability onset date of June 20, 2011, 5 coinciding with her retirement date. 6 on October 23, 2014 by Administrative Law Judge Michelle 7 Marcus. 8 finding that plaintiff could not establish the existence of 9 any conditions significantly limiting her ability to perform A hearing was conducted ALJ Marcus issued a decision on February 6, 2015 10 basic functions and could not satisfy step two of the 11 sequential tests for determining disability. 12 Administration Appeals Council denied review on September 21, 13 2016. 14 Social Security As I indicated, ALJ Marcus issued a decision where 15 she intended to apply the five step sequential test for 16 determining disability, but ended the analysis at step two 17 concluding that plaintiff did not suffer from any condition 18 that significantly limited her ability to work or perform 19 basic functions. 20 decision by the consultative examiner, Dr. Wassef, that was 21 explained in the decision as based upon not only the medical 22 source opinion being nonspecific but also inconsistent with 23 musculoskeletal findings on the examination, which were 24 normal with completely normal range of motion in lumbar spine 25 and extremities, normal stance and gait, and ability to squat And that hinged upon the rejection of a 5 Decision - 16-cv-1354 - 8/29/2017 1 was full, and she also reported no difficulties in daily 2 activities. 3 That's at page 22 of the record. As you know, my task is limited. The scope of 4 review is extremely deferential. 5 correct legal principles were applied and whether substantial 6 evidence supports the Commissioner's determination. 7 Commissioner's determination became final on September 21, 8 2016 when the Social Security Administration Appeals Council 9 denied plaintiff's request for a review. 10 I must determine whether The First turning to the decision to reject 11 Dr. Wassef's consultative examination opinion, that was 12 explained, as I said, on page 22 of the record. 13 well-established, including under Pellam versus Astrue, 508 14 F. App'x 87, that the Commissioner, even though ordering a 15 consultative examination, is not required to accept the 16 findings of that examination. 17 It is In this case it is clear that the medical source 18 statement is not sufficiently specific when it uses terms 19 like moderately limited. 20 nothing in the objective findings of Dr. Wassef that would 21 support the limitations that he opined. 22 full flexion, extension, lateral flexion bilaterally, and 23 full rotary movement bilaterally, straight leg raise test was 24 negative bilaterally, full range of motion of shoulders, 25 elbows, forearms, and wrists bilaterally, and on, and on. But more importantly, there is Lumbar spine shows No Decision - 16-cv-1354 - 8/29/2017 1 neurological deficits, strength 5/5 in upper and lower 2 extremities. 3 6 the statement, the opinions of Dr. Wassef. So there really is nothing that would support So I find that the rejection is properly explained. 4 5 Which leaves the question whether the lack of any medical 6 source statement is fatal to the Commissioner's position. 7 And the Second Circuit's decision in Monroe versus 8 Commissioner of Social Security, and also the case relied on 9 in that decision, Tankisi versus Commissioner of Social 10 Security, 521 F. App'x 29, the lack of a medical source 11 statement is not necessarily fatal if there is sufficient 12 evidence in the record from which the Administrative Law 13 Judge without making his own or her own medical decisions can 14 rely. In this case, first of all, I respectfully 15 16 disagree. 17 the Administrative Law Judge recontact a consultative source. 18 I don't find any gap in the record. 19 consultative examiner's report was rejected, here there were 20 extensive treatment notes from the endocrinologist and 21 primary care provider. 22 endocrinologist was contacted but declined to complete a 23 medical source statement. 24 25 I don't think that the regulations require that Just because the And as the Commissioner noted, the So the question really is has plaintiff carried her burden of demonstrating the existence of a condition that 7 Decision - 16-cv-1354 - 8/29/2017 1 significantly limits her physical or mental ability to do 2 basic work activities as those are defined under 20 C.F.R. 3 Section 404.1522. 4 well-established under Monguer and other cases, that the mere 5 existence of a medical condition, a diagnosed medical 6 condition, does not equate to impairment. 7 Again, it is plaintiff's burden, and it is The evidence in this case shows that the plaintiff 8 worked with diabetes since 2006 or 2007. She is holding 9 herself out as able to work as a substitute. I agree with 10 the Commissioner that the treatment notes of the 11 endocrinologist do not show significant deterioration and, 12 frankly, don't show much difference between the pre-June 2011 13 and post-June 2011 dates. 14 And so I conclude that the Commissioner's 15 determination that plaintiff has not satisfied her burden at 16 step two is supported by substantial evidence. 17 judgment on the pleadings to defendant and dismiss 18 plaintiff's complaint. Thank you both for excellent presentations. 19 20 21 22 23 24 25 I will grant good day. * * * Have a C E R T I F I C A T I O N I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States. ________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter

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