Opinion
Civil Action 5:22-CV-0177 (DEP)
02-24-2023
STEVEN C. B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
FOR PLAINTIFF OFFICE OF PETER W. ANTONOWICZ FOR DEFENDANT SOCIAL SECURITY ADMIN OFFICE OF GENERAL COUNSEL PETER W. ANTONOWICZ, ESQ. HUGH DUN RAPPAPORT, ESQ.
FOR PLAINTIFF OFFICE OF PETER W. ANTONOWICZ
FOR DEFENDANT SOCIAL SECURITY ADMIN OFFICE OF GENERAL COUNSEL
PETER W. ANTONOWICZ, ESQ.
HUGH DUN RAPPAPORT, ESQ.
ORDER
DAVID E. PEEBLES, U.S. MAGISTRATE JUDGE
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 (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.Oral argument was heard in connection with those motions on February 7, 2023, 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 Commissioners 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.
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.
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 GRANTED.
2) The Commissioners 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.
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK
STEVEN C. B. Plaintiff, v.
KILOLO KIJAKAZI, ACTING COMMISSIONER of the SOCIAL SECURITY ADMINISTRATION, Defendant.
5:22cv00177
Transcript of a Decision from a Teleconference Hearing held on February 7, 2023, at the Alexander Pirnie Federal Building, 10 Broad Street, Utica, New York, the HONORABLE DAVID E. PEEBLES, Magistrate Judge, Presiding.
(The following is an excerpt of a teleconference hearing held on 2/07/23.)
THE COURT: All right. Thank you. Let me begin by expressing the Court's thanks to the attorneys for excellent and spirited presentations. The Plaintiff has commenced this proceeding pursuant to 42 United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Acting Commissioner of Social Security. The background is as follows:
The Plaintiff was born in June of 1971. He is currently 51 years of age. He was 45 years old at the alleged onset date of disability, which he contends is August 1, 2016. Plaintiff stands 5-foot-7-inches in height. He weighs 185 pounds, approximately. He lives in Liverpool with a fiancee and her daughter. Plaintiff attended regular classes through the tenth grade and did achieve a GED. He is right-hand dominant.
Plaintiff stopped working in August of 2016. He worked as a convenience store clerk for one month, but his principal job was as a crane inspector and mechanic. He also has worked in the past as a janitor and testified that he has done some heavy handyman work.
Physically, plaintiff suffers from cervical and lumbar back injuries and issues, an injury to his left thumb and right hand, elbow issues which have been described as arthritic epicondylitis. He has undergone or suffered several accidents. In July of 2010, he was involved in a crane accident that caused injury to his cervical spine. It resulted in surgery at the C4-5 level in July of 2011. In July of 2019, Plaintiff injured his left thumb in a table saw accident. And in December of 2019, he experienced a snowblower accident resulting in amputation of his right middle and right ring fingers, partially, and a third broken finger, his right index finger.
Mentally, Plaintiff appears to suffer from depression and anxiety which has been treated by his primary physician only with no specialized psychiatric or psychological treatment or hospitalization, and those conditions appear to be well controlled through the use of medications.
Plaintiff treats with Dr. Laura Martin. He has also treated at Upstate Orthopedics with Dr. Jon Loftus and Physician's Assistant Allison Lewis and CNY Spine & Pain Medicine, as well as SOS, which is an orthopedic treatment provider.
In terms of activities of daily living, Plaintiff can meet his personal needs. He can cook, shop, dress, shower, watch television, listen to the radio, read. He is or was at one point an active weightlifter. He obviously, prior to his accidents, was able to use a table saw and snowblower and can do other light chores.
Procedurally, Plaintiff applied for Title 2 and Title 16 benefits on November 16, 2017. That date obviously predates the two, 2019 events. He claimed at that time to be disabled due to neck injury, injury to both ankles, a lower back issue and elbow injury. A hearing was conducted on April 15, 2021, by Administrative Law Judge Charles Woode. The administrative law judge issued an adverse determination on May 4, 2021. That became a final determination of the Social Security Administration on February 1, 2022, and the Social Security Appeals Council denied Plaintiff's application for a review. This action was commenced on February 25, 2022, and is timely.
In his decision, ALJ Woode applied the familiar five-step sequential test for determining disability. He first noted that Plaintiff's last date of insured status was December 31, 2019. He found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. At step two, the administrative law judge concluded that Plaintiff suffers from severe impairment that imposed more than minimal limitations on his ability to perform basic work functions, including hypertension, lumbar disc disease, obesity, degenerative joint disease, injury to the left thumb and partial amputations of two fingers of the right hand. He rejected several other impairments as not being severe, including carpal tunnel syndrome, epicondylitis, tarsal tunnel syndrome, as well as Plaintiff's depression and anxiety.
He did note, however, that while other impairments were rejected at step two, they were nonetheless considered when the administrative law judge determined plaintiff's residual functional capacity or RFC. At step three, the administrative law judge concluded the Plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the commissioner's regulations. Specifically, considering listings 1.15, 1.16, 1.18, 1.20, 11.14 and 4.04. He also considered Plaintiff's obesity and pain in formulating his residual functional capacity.
After surveying all of the available evidence, the administrative law judge concluded that Plaintiff is capable of performing light work with additional limitations, including significantly that he can lift or carry 10 pounds with the right upper extremity and can occasionally handle, finger or feel with the right hand. There are other limitations that are due to physical impairments, but those are the limitations that are germane to this case. Except for the ALJ concluded the Plaintiff is unable to perform his past relevant work as a cashier, inspector and construction equipment mechanic.
At step five, the ALJ found based on the testimony of the vocational expert that Plaintiff is capable of performing available work in the national economy, notwithstanding his impairments, and cited representative positions of bus monitor, children's attendant and usher, and therefore concluded that Plaintiff was not disabled at the relevant times.
As you know, the Court's function in this case is extremely limited and the standard to be applied is exceedingly deferential. I must determine whether correct legal principles were applied and the result is supported by substantial evidence which is defined as such relevant evidence as a reasonable person would find sufficient to support a conclusion.
The Second Circuit has noted on many occasions that this is a rigorous standard for a plaintiff to meet. In Brault v. Social Security Administration, 683 F.3d 443 from the Second Circuit 2012, the Second Circuit noted that the standard is even more stringent than the clearly erroneous standard and observed that under the substantial evidence standard, once an ALJ finds a fact, that fact can be rejected only if a reasonable fact finder would have to conclude otherwise. The standard was reiterated more recently in Schillo v. Kijakazi, 31 F.4th 64 from April 6, 2022, from the Second Circuit Court of Appeals.
In this case, the Plaintiff raises two arguments. First, contending that the ALJ was obligated to order a new consultative examination based upon the snowblower accident of December of 2019. Specifically, to address the effects on Plaintiff's ability to manipulate with the right-dominant hand, he also argues that the step two determination is incomplete and should have included a right index finger injury and left elbow condition as severe at step two.
The medical opinions in the record from the -all predate, it is true, the 2019 events. There is a medical opinion from state agency consultant Dr. M. Angelotti from February of 2018. And there is an opinion from Dr. Myra Shayevitz from January of 2018.
The regulations concerning the acquisition of a consultative examination are found, in part, in 20 C.F.R. Section 404.1519(a). And that also is for Title 16 purposes included in 20 C.F.R. Section 416.969(a). They provide, in relevant part, we may purchase a consultative examination to try to resolve an inconsistency in the evidence or when the evidence as a whole is insufficient to allow us to make a determination or decision on your claim.
They give examples, and one example is as follows from subsection (b)(4). There is an indication of a change in your condition which in this case is true. But it goes on to say that it is likely to affect your ability to work, but the current severity of your impairment is not established.
In this case, as I indicated, the RFC limits Plaintiff's ability to lift and carry with the right upper extremity to 10 pounds and to only occasional handling, fingering and feeling with the right hand. The vocational expert in this case testified to -- in response to several hypotheticals, the third of which is spot on with the residual functional capacity and led to the VE's testimony of the availability of the three jobs that the ALJ found the Plaintiff capable of performing. The Plaintiff through step four in the residual functional capacity portion is obligated to come forward with evidence to show limitations on the ability to perform basic work functions. In this case, the record was held open for that purpose. The record contains evidence which was specifically discussed by the administrative law judge concerning Plaintiff's right index finger treatment and healing. Page 727 references healing. Page 735 indicates good range of motion. And there is record evidence of progress with physical therapy. And, of course, there is also Plaintiff's activities of daily living, which are inconsistent with such a limitation as the Plaintiff now appears to claim.
The Plaintiff's lawyer did not identify any record gaps when asked and stated no objection to the evidence in the record. Under these circumstances, I find no error. Krach v. Commissioner of Social Security, 2014 Westlaw 5290368. Jason C. v. -- that's from the Northern District of New York, October 15, 2014. The Jason C. v. Berryhill at 2019 Westlaw 1409804 from the Northern District of New York, March 28, 2019. And Bruce Wayne C. v. Commissioner of Security, 2022 Westlaw 1304024, Northern District of New York, May 2, 2022. I find no abuse of discretion in the administrative law judge's failure to order a subsequent consultative examination before deciding the case.
The second point concerns the step two determination under the governing of regulations. An impairment or a combination of impairments is not severe if it does not significantly limit claimant's physical or mental ability to do basic work activities, 20 C.F.R. Section 404.1521(a). And the term "basic work activities" is defined to include the abilities and aptitudes necessary to do most j obs.
There is no question that the burden at step two is de minimus, but it clearly is the Plaintiff's burden to establish an impairment that precludes performance of basic work activities and it's well-accepted that the mere presence of a disease or impairment or establishing that a person has been diagnosed or treated for a disease or an impairment is not by itself sufficient to establish the condition as severe.
In terms of the right index finger, there is no evidence in the record that Plaintiff has adduced that would show a limitation from the right index finger on the ability to perform basic work activities. The ALJ did reference the index finger issue and discussed it at page 19 and 20. He did state at page 13 that in formulating the residual functional capacity, he considered all the Plaintiff's impairments. And at page 16, he stated that he accommodated the -- at page 16, the RFC accommodated the finger issue by limiting Plaintiff to occasionally handling, fingering or feeling with the right extremity and restricting lifting with the right upper extremity.
I don't find that the Plaintiff has carried its burden of establishing an impairment at step two based on his right index finger that would be severe. But in any event, if there was error, it's harmless, since the Plaintiff -- since the administrative law judge did go on to consider that injury and take it into account in the RFC.
The left elbow injury was also discussed. The ALJ discussed the modest findings and the fact that Plaintiff received injections, at page 13. Plaintiff did not establish any evidence that would show a limitation to the ability to perform the residual functional capacity -- well, consistent with residual functional capacity. And although it was not found to be a severe condition at step two, the administrative law judge, nonetheless, did consider the left elbow condition at subsequent stages. It was considered at step three. It was described as mild at page 21. And at one point, the Plaintiff denied treatment or declined treatment for his elbow at March 2020. That's at 749 in the records from SOS and stated that the left elbow condition was not that bothersome. So, again, I find that the Plaintiff has not established error at step two. And if there was error, it was harmless.
As the -- at step five, the vocational expert was presented with a hypothetical that tracked the residual functioning capacity and found that Plaintiff is capable of performing available work in the national economy. As the Commissioner points out, he was specifically asked, the vocational expert, whether there would be still jobs available if the individual could use his dominant hand for less than occasional handling, fingering or feeling. That's at page 80. And the vocational expert stated that the bus monitor position would still remain. So any error, once again, appears to be harmless. Plaintiff has not established prejudice.
So for these reasons, I find that the correct legal principles were applied and substantial evidence supports the resulting determination. I will therefore grant judgment on the pleadings to the Defendant and order dismissal of Plaintiff's complaint.
Thank you, both. I hope you have a good rest of the day.
MR. RAPPAPORT: Thank you, your Honor.
MR. ANTONOWICZ: Thank you, your Honor.
(Court adjourned, 11:45 a.m.)
CERTIFICATE OF OFFICIAL REPORTER
I, LISA M. MAZZEI, RPR, Official U.S. 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 teleconference 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.
Dated this 23rd day of February, 2023.
LISA M. MAZZEI, RPR Official U.S. Court Reporter