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Wiediger v. Commissioner of Social Security

United States District Court, Second Circuit

November 20, 2013

DEBORAH A. WIEDIGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

HOWARD OLINSKY, ESQ., JILLIAN C. KARAS, ESQ., EDWARD A. WICKLUND, ESQ., OLINSKY LAW GROUP, Syracuse, NY, for Plaintiff.

KATRINA M. LEDERER, ESQ., Special Assistant U.S. Attorneys, HON. RICHARD S. HARTUNIAN, United States Attorney, Syracuse, NY, for Defendant.

ORDER

DAVID E. PEEBLES, Magistrate Judge.

Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to 42 U.S.C. ยง 405(g), are cross-motions for judgment on the pleadings.[1] Oral argument was conducted in connection with those motions on November 8, 2013, during a telephone conference at which a court reporter was present. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the 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 her 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 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.

Transcript of Decision held on November 8, 2013, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

THE COURT: I have before me a plaintiff who was born in November of 1961, which makes her nearly 52 years old. She has a twelfth grade education. She last worked on, according to her, July 1, 1999. That's at page 114 of the Administrative Transcript. Although I note that she reportedly told Dr. Ganesh that she last worked in 1983. That's at page 287 of the transcript. In any event, she has a work history that is sporadic at best.

She suffered what have been referred to as strokes, or events we'll call them, on March 16, 2005 and then again on September 8, 2005 and was hospitalized on both occasions. Since that time she has been treated by Dr. Lowenstein, her long-time provider, medical provider, who she has been treating with since 1985, as well as Dr. Jameel Arastu with Slocum-Dickson Medical Group, a neurologist, who she has seen at least from June of 2008 through October of 2009.

The plaintiff reportedly suffers from hemiplegic migraine headaches. The frequency varies. And as we have been discussing, there are various excerpts of the record that are inconsistent as to the extent of those. The plaintiff allegedly reported to Dr. Arastu that they occur four times a year and last between a half hour and an hour. However, Dr. Lowenstein suggests that they happen twice per month, a much more frequent basis.

Dr. Lowenstein, the long-time treating general practitioner, provided two medical source statements. One on June 10, 2009 opining that plaintiff is very limited in most all categories when experiencing hemiplegic migraine headaches. On April 12, 2010 Dr. Lowenstein opined that plaintiff can lift and carry up to 10 pounds occasionally, sit for one hour, stand for 25 minutes and walk for 25 minutes at a time; sit for five hours, stand for two hours and walk for one hour in an eight hour day. Dr. Lowenstein also indicates that plaintiff's memory is significantly affected by her stroke. He attributes these limitations to overall weakness and lower back pain.

Significantly, although there does not appear much focus on the back pain, and at least one point on June 16, 2008 plaintiff denied having back pain, that is at 366, there are references on other occasions, including September 4, 2008 at page ...


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