Case Information
*1 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK PATTIE A. MAYETTE,
Plaintiff, v. Civil Action No. 7:16-CV-1297 (DEP) COMMISSIONER OF SOCIAL SECURITY,
Defendant. APPEARANCES: OF COUNSEL:
FOR PLAINTIFF:
CONBOY, McKAY, BACHMAN & LAWRENCE HASSELER, ESQ.
KENDALL, LLP
407 Sherman Street
Watertown, NY 13601
FOR DEFENDANT:
HON. RICHARD S. HARTUNIAN JUNE L. BYUN, 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
*2 Acting Commissioner of Social Security, pursuant to 42 U.S.C. § ' 405(g)
and 1383(c)(3), are cross-motions for judgment on the pleadings. 1 Oral
argument was heard in connection with those motions on June 1, 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
ORDERED, as follows:
1) Defendant = s motion for judgment on the pleadings is GRANTED.
2) The Acting Commissioner = s determination that the plaintiff was *3 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: June 2, 2017
Syracuse, NY 3
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK --------------------------------------------x
PATTIE A. MAYETTE,
Plaintiff,
vs. 7:16-CV-1297
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
--------------------------------------------x
Transcript of a Decision held during a Telephone Conference on June 1, 2017, at the James
Hanley Federal Building, 100 South Clinton Street,
Syracuse, New York, the HONORABLE DAVID E. PEEBLES,
United States Magistrate Judge, Presiding.
A P P E A R A N C E S (By Telephone) For Plaintiff: CONBOY, McKAY LAW FIRM
Attorneys at Law
307 State Street
Carthage, New York 13619 BY: LAWRENCE D. HASSELER, ESQ.
For Defendant: SOCIAL SECURITY ADMINISTRATION
Office of Regional Counsel
Region II
26 Federal Plaza - Room 3904 New York, New York 10278
BY: JUNE L. BYUN, ESQ.
Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 (In Chambers, Counsel present by telephone.) THE COURT: All right, thank you, I'll have to let that be the last word. I have before me a request for
judicial review of an adverse determination by the Acting
Commissioner pursuant to 42 United States Code Section 405(g)
and 1383(c)(3).
The background is as follows: Plaintiff was born in February of 1961, is currently 56 years old, she was 50
years old at the time of the alleged onset of her disability
as amended. She stands 5 foot 2 inches, weighs 172 pounds.
She lives with her daughter in a third floor apartment. She
has a high school degree and underwent a BOCES office
technology course. She possesses a driver's license but has
not driven in quite some time. Plaintiff last worked in
February of 2012. Her past work experiences include as a
cashier in a store, as a Dairy Queen counter person, and a
receiving clerk in a hardware store. Her work history is
included at page 207 of the administrative transcript.
Medically, plaintiff suffered a blackout in December of 2011, since then has complained of headaches,
blackouts, and dizziness. She has treated at Fletcher Allen
in Burlington, Vermont, with Dr. Robert Shapiro and Nurse
Practitioner Sandra McGrath beginning in November of 2012.
There have been several objective tests over time with no
abnormal findings. She has been prescribed Topamax and Depakote. I'll note that the records from Massena Memorial
Hospital that are found at 3F show significant testing with
very little, if any, findings. Normal EEG at 283,
unremarkable CT scan of the head at 285, a CT unremarkable,
CT of the head again at 362, a brain MRI at 407 which
revealed only mild left spheroid sinusitis with no other
abnormality, a CT scan at 414 and again at 429, unremarkable.
The plaintiff has been prescribed Topamax and Depakote for
her headaches.
She also suffers from rheumatoid arthritis. It has been described as mild and early at 693, 599, and 590. It
appears to have improved after being treated with
methotrexate, and also Prednisone. She is treated for that
condition by Dr. Jianghong Yu; suffers from asthma and COPD,
has been treated by Dr. Vineet Bansal. It was noted in that
doctor's records that she smoked two packs per day until
February 2013 against medical advice. She has a nebulizer
and is also treated with Albuterol.
She also suffers from degenerative disk disease, cervical and lumbar, diabetes, shoulder pain, hand and wrist
pain, and ankle sprain, and she was a frequenter, at least
for a time, at the Massena Memorial Hospital emergency room
where she sought treatment for those conditions.
Procedurally, she applied for Title II and Title XVI benefits on May 21, 2013, alleging an onset date of
February 14, 2012, that was later amended to November 2,
2012. A hearing was conducted by Administrative Law Judge
Robert Gale on December 18, 2014. Judge Gale issued a
decision on March 30, 2015. That decision, which was adverse
to the plaintiff, became a final determination of the agency
when the Social Security Administration Appeals Council
denied plaintiff's request for review on August 29, 2016.
In his decision, Administrative Law Judge Gale applied the well-known five-step sequential test for
determining disability, at step one finding that plaintiff
did not engage in substantial gainful activity after her
amended onset date; at step two, concluded that plaintiff
suffers from severe conditions including rheumatoid
arthritis, history of syncopal attacks, migraine headaches,
degenerative disk disease of the cervical and lumbar spine,
and Chronic Obstructive Pulmonary Disease, or COPD. At step
three, ALJ Gale found that plaintiff's conditions do not meet
or medically equal any of the listed presumptively disabling
conditions set forth in the Commissioner's regulations.
After surveying the medical evidence and other available evidence in the record, ALJ Gale concluded that
plaintiff retains the residual functional capacity or RFC to
perform light work, because she is able to lift, carry, push,
and/or pull 20 pounds occasionally and 10 pounds frequently.
He went on to provide that the claimant is able to stand and/or walk for 30 minutes at a time and for six hours total
in an eight-hour workday, claimant is able to sit for 30
minutes at a time, and for six hours in an eight-hour
workday. Although the claimant is unable to climb ladders,
ropes, and scaffolds, she is able to rarely crawl and
occasionally kneel, stoop, and crouch. The claimant is able
to occasionally reach. Additionally, the claimant is able to
tolerate no more than moderate exposure to bright flashing
lights and respiratory irritants such as fumes, odors, dust,
and gases, but she must avoid workplace hazards such as
unprotected heights and moving mechanical parts.
At step four, the ALJ concluded that plaintiff is unable to perform any of her past relevant work positions,
and turning to step five, after noting that if the medical
vocational guidelines were applied, a finding of no
disability would be directed, concluded that a vocational
expert's testimony was required in order to address the
nonexertional limitations found.
After considering the vocational expert's testimony, ALJ Gale concluded that plaintiff is able to
perform the functions of a shipping and receiving weigher and
as a counter clerk, and is therefore not disabled.
As you know, my task is limited. I must determine whether correct legal principles were applied and substantial
evidence supports the determination. The -- my decision must give substantial deference to the Commissioner's
determination.
The first issue is treating physician. Obviously treating physicians' opinions are normally controlling, and
if they are not controlling -- they are not controlling if
they are not consistent with other substantial evidence. If
the opinions are rejected as not controlling, the
administrative law judge is directed by regulation to
consider factors and assign a weight to be given to the
opinion, considering the length of the treatment relationship
and the frequency of examination, the nature and extent of
the treatment relationship, the degree to which the medical
source has supported his or her opinion, the degree of
consistency between the opinion and the record as a whole,
whether the opinion is given by a specialist, and other
evidence which may be brought to the attention of the ALJ.
The -- my experience has been that rarely, if ever, does an administrative law judge faithfully go through those
factors one by one. The Second Circuit has said that the ALJ
need not slavishly recite each of the factors and analyze
them so long as the determination allows for meaningful
judicial review.
In this case, what were rejected were opinions from Dr. Shapiro and Nurse Practitioner McGrath. They were
rejected as being inconsistent with treatment notes. I've reviewed those treatment notes and agree with the
administrative law judge. They're also internally
inconsistent. I know that Mr. Hasseler argued otherwise, but
it's very clear that these opinions, which are rendered four
months apart, differ in that one states that there is no
limitation related to a medical -- mental impairment, that's
at 656, and yet at 659, in May of 2014, the doctor and nurse
practitioner find that the plaintiff is very limited in
mental function in several areas, and they are inconsistent
internally. They're also check-the-box forms which case law
suggests are not as meaningful as opinions that are stated
and supported. There's little explanation for the opinions
given. As I already referenced, there are normal CT, MRI,
and EEG findings. They are also inconsistent with
Dr. Lorensen and Dr. Marasigan's opinions which can
constitute substantial evidence. I note that page 621 and
665 in the treatment notes, Dr. Shapiro opines that plaintiff
is disabled and obviously that's a matter that's reserved to
the Commissioner.
As to the weight, again, there's no need to slavishly recite factors, there's no explanation given for
the mental limitations, no explanation given for the
limitation on the ability to use hands, and to sit. The
error -- I'm not convinced that Dr. Lorensen's misstatement
is meaningful. She performed an evaluation, she interviewed the plaintiff, performed an examination, and gave opinions.
In terms of RFC, plaintiff bears the burden under Poupore of establishing the limitations associated with her
medical conditions. In this case the RFC draws support from
Dr. Lorensen's opinions and Dr. Marasigan's. In arriving at
the RFC, again the ALJ also discussed the unremarkable test
results, the treatment notes, the fact that Dr. Yu shows that
her arthritis is mild and well controlled, and also the
conservative treatment that plaintiff has undergone and her
positive response to the medications, including Depakote and
Topamax.
In terms of credibility, the plaintiff -- the ALJ applied the two-step, the proper two-step analysis at 17
through 19 of the administrative transcript. Pain complaints
are belied by Dr. Yu's reports. In terms of dizziness,
Dr. Lorensen did not report anything of concern in that area.
The treatment notes of Dr. Shapiro and Nurse Practitioner
McGrath often provide indication of normal motor exams. The
subjective -- the plaintiff's claims really are primarily
based on subjective complaints, not supported by objective
evidence.
The ALJ did consider plaintiff's work history, and -- but felt it was overcome by the various other factors
including conservative treatment that she underwent.
At step five, I've indicated the RFC is supported, the hypothetical that was given to the vocational expert
approximated the -- closely approximated the RFC and the
vocational expert's testimony provided substantial evidence
of plaintiff's ability to perform available work in the
national and local economy, so I will grant judgment on the
pleadings to the defendant, dismiss plaintiff's complaint.
Thank you both for excellent presentations, I hope you have a good day.
MR. HASSELER: Thank you, your Honor.
MS. BYUN: Thank you, your Honor.
(Proceedings Adjourned, 10:10 a.m.) *13 CERTIFICATE OF OFFICIAL REPORTER I, JODI L. HIBBARD, RPR, CRR, CSR, 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.
Dated this 1st day of June, 2017.
/S/ JODI L. HIBBARD
JODI L. HIBBARD, RPR, CRR, CSR
Official U.S. Court Reporter
[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