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)

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. § 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
[phone]

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

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11 to 18.

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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

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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,

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watches television, listens to the radio, socializes with

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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,

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coinciding with her retirement date.

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on October 23, 2014 by Administrative Law Judge Michelle

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Marcus.

8

finding that plaintiff could not establish the existence of

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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.

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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.

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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

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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

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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