Golden v. Commissioner of Social Security

Filing 27

ORDER denying 14 Plaintiff's Motion for Judgment on the Pleadings; granting 20 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations re 21 Report and Recommendations in its entirety. Signed by Hon. Michael A. Telesca on 2/10/17. (clerk to close case.) (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER HOWARD GOLDEN,
15-CV-385
DECISION AND
ORDER

Plaintiff,

-vsCOMMISSIONER OF SOCIAL
SECURITY,
Defendant.

I.

Introduction
Plaintiff Christopher Howard Golden (“plaintiff”) brings this

action

pursuant

to

42

U.S.C.

§

405(g),

claiming

that

the

Commissioner of Social Security (“Commissioner” or “defendant”),
improperly denied his applications for supplemental security income
(“SSI”) payments and disability insurance benefits (“DIB”) under
the Social Security Act (“SSA”).

Currently before the Court are

the parties’ competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.
On November 8, 2016, Magistrate Judge Hugh B. Scott issued a
Report and Recommendation (“R&R”) (Docket No. 21), with which the
parties’ familiarity is assumed, recommending that defendant’s
motion be granted and plaintiff’s motion be denied.

As discussed

further below, the Court agrees with Judge Scott’s findings and
adopts the Report and Recommendation in its entirety.
II.

Discussion
When specific objections are made to a magistrate judge’s

report and recommendation, the district judge makes a “de novo

determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
§ 636(b)(1)(C).

When only general objections are made to a

magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. E.g., Brown v.
Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff’d,
175 F.3d 1007 (2d Cir. 1999).

After conducing the appropriate

review, the district court may “accept, reject, or modify, in whole
or in part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1)(C).
Plaintiff’s applications for SSI and DIB, initially denied,
were filed on January 18, 2013 and alleged disability beginning on
December 24, 2011 based on his back deformity, low back pain,
neurogenic bladder, permanent colostomy, imperforate anus, asthma,
allergies,

seizure

sciatica,

and

disorder,

herniated

osteopenia,

discs.

learning

disability,

Administrative

Transcript

(hereinafter “T.”) 12, 104-117, 174. Following a hearing before an
administrative law judge (“ALJ”), during which testimony was taken
from plaintiff and a vocational expert (“VE”), the ALJ issued an
unfavorable finding that plaintiff was not disabled under the SSA.

In his decision, the ALJ found that plaintiff had the residual
functional

capacity

(“RFC”)

to

perform

light

following limitation: sit for six hours and

work

with

the

stand or walk for a

total of six hours; avoid climbing ropes, ladders, and scaffolds;
only occasionally climb ramps and stairs; occasionally stoop; and
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avoid exposure to respiratory irritants; and avoid working from
unprotected heights and with hazardous machinery.

On March 13,

2015, the Appeals Council denied plaintiff’s request for review of
the ALJ’s decision.

The present action ensued.

In his response to the R&R, plaintiff raises two specific
objections.

Plaintiff first contends that Judge Scott improperly

relies on the erroneous finding of the ALJ that there is no
evidence in the record of any limitation due to his colostomy,
apart from a mild limitation for bending.

Plaintiff points out

that the objective medical evidence in the record includes two
reports by

Dr.

colostomy.

Gary

Eggleston

Plaintiff

argues,

that

reference

therefore,

leakage

that

this

of

his

evidence

requires a hypothetical question posed to the VE that includes a
limitation for plaintiff’s need to change his colostomy bag at
work.
Plaintiff’s

second

objection

asserts

that

Judge

Scott

improperly relied on the ALJ’s characterization that his back pain
was controlled by medication and injections, and that this finding
ignores the record evidence of his many injections and his multiple
diagnoses of spondylosis, intervertebral disc displacement, and
radiculitis by the Warren Pain Clinic.

As a related matter,

plaintiff also contends that treatment notes from the Warren Pain
Clinic added to the record after the ALJ rendered his decision
supports an RFC determination of no more than sedentary work.
Upon

its

consideration

de

novo

review

of

plaintiff’s

of

the

R&R

objections,
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and
the

after

careful

Court

accepts

Judge Scott’s proposed findings and recommendation.

With respect

to plaintiff’s objection concerning the leaking of his colostomy,
Dr.

Eggleston’s

February

2012

report

states

that

he

was

experiencing “ongoing issues with his colostomy leaking - problem
at previous jobs he has had.” T. 265.
not

include

activities.

this

issue

as

a

However, Dr. Eggleston does

limitation

on

plaintiff’s

work

In his May 2012 treatment note, Dr. Eggleston stated

that plaintiff “still has issues with some leaking around his
colostomy

which

has

been

frustrating

for”

plaintiff

T.

346.

Neither report indicates the frequency with which the leaking had
occurred nor
physical

the

duration of

these

occurrences.

During

the

examination, the doctor observed that “some stool ha[d]

leaked out onto the strap that holds [plaintiff’s colostomy] in
place.” T. 348.

In May 2013, plaintiff reported that since he had

stopped working, his colostomy was “not leaking nearly as much
stool around the stoma site as [it] used to.” T. 388.

At the

hearing, plaintiff testified that he was fired from a manual labor
position with his long-time employer, Fieldwork Foods, due to his
attendance issues, which were related to his colostomy bag leaking,
his asthma and allergies, and his back problems. T. 32-33.

This

full-time job required him to stand continuously and repetitively
lift and carry 40-pound packages of ice cream.

When asked whether

the leakage issue had been resolved, plaintiff responded: “I still
have the problem.

Stayed about the same.” T. 33.

When asked how

often the bag leaked, plaintiff responded: “I’d say about two times
a month.

That’s when I had the really bad problems.” T. 33.
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Contrary to plaintiff’s contention, the R&R reveals that
Judge Scott properly reviewed and considered all of the medical
evidence concerning plaintiff’s colostomy, including the reports
specifically referenced by plaintiff in his Objections, before
affirming the ALJ’s decision.

Judge Scott found that:

“[b]ased on the evidence available to him in the record,
it cannot be said that the ALJ did not account for
Plaintiff’s colostomy impairment. To the contrary, the
ALJ’s relegation of Plaintiff to “light work” with
additional
limitations
accounted
for
Plaintiff’s
colostomy and was consistent with the Medical Source
Statement of Dr. Balderman that Plaintiff had mild
limitations in repetitive bending and lifting.”
R&R, p. 10.

Judge Scott further noted that courts have held that

mild to moderate limitations in repetitive lifting and bending are
consistent with the ability to perform the full range of light
work. With respect to plaintiff’s subjective complaints concerning
the frequency and duration of bathroom breaks needed to empty his
colostomy bag, Judge Scott found that “because there were no
colostomy-based limitations indicated by the activities of daily
living form or the objective medical evidence, the ALJ properly
observed the evidence of record and considered the conflicting
evidence against Plaintiff’s subjective complaints.” T. 9.

This

Court finds that there is substantial evidence in the record to
support this finding, as well as the ALJ’s determination.
With

respect

to

plaintiff’s

objection

concerning

the

additional medical evidence related to his back condition and
treatment, the Court notes that his objection is essentially a
reiteration of the same contention made in plaintiff’s motion for
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judgment

on

the

pleadings,

wherein

he

argues

that

the

ALJ

mistakenly characterized his back pain as being controlled by
medication and epidural injections.

The Court also notes that the

Appeals Council found that the treatment notes from the Warren Pain
Clinic and Acupuncture Center, dated October 3, 2013, which were
supplied by plaintiff’s representative, did not provide a basis for
altering the ALJ’s decision.
reveal that plaintiff
period,

and

that

The notes from this office visit

had five injections over a three-year

the

status

of

his

condition

substantially unchanged since his last visit.

and

pain

was

He reported that,

post injection, he is pain free “for a little while” and that his
pain “is better” when he uses pain medication. T. 401. The physical
examination of plaintiff’s spine revealed: left rotation with
difficulty; pain in the right lower back, left lower back, and
right lower extremity; right rotation with discomfort; pain in the
righter lower back, left lower back, and right lower extremity; and
extension with pain in the right lower back, left lower back, and
right lower extremity. T. 401.

Plaintiff indicated that he wanted

to “discuss other options,” and a follow-up appointment in one
month was recommended.
The Court agrees with the Appeals Council that this record
does not contain any evidence to warrant remanding the case to the
ALJ. The Court has reviewed plaintiff’s contention and agrees with
Judge Scott’s finding that the evidence in the record supports a
restricted

range

of

light

work

and

that

the

ALJ

explicitly

accounted for plaintiff’s lumbar condition in his RFC assessment by
-6-

including

postural

limitations

and

walking, standing, and sitting.

restrictions

on

prolonged

The Court therefore adopts

Judge Scott’s analysis in its entirety.
III. Conclusion
For the reasons set forth in Judge Scott’s thorough and
well-reasoned Report and Recommendation, the undersigned adopts all
of his conclusions.

The Report and Recommendation (Docket No. 21)

is hereby adopted in its entirety.

The Commissioner’s motion for

a judgment on the pleadings (Docket No. 20) is granted, and
plaintiff’s motion for a judgment on the pleadings is denied
(Docket No. 14).

The Clerk of Court is requested to close this

case.
IT IS SO ORDERED.
S/Michael A. Telesca
__________________________
MICHAEL A. TELESCA
United States District Judge
Dated:

February 10, 2017
Rochester, New York

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