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Dominique v. Commissioner of Social Security

United States District Court, N.D. New York

February 25, 2014



DENNIS J. CANNING, PETER W. JEWETT, Special Asst. U.S. Attorneys, for Defendant.


ANDREW T. BAXTER, Magistrate Judge.

This matter was referred to me for report and recommendation by the Honorable David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636 (b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.


On December 7, 2009 plaintiff protectively filed[1] his application for supplemental security income ("SSI"), claiming disability beginning March 30, 2005. Plaintiff's application was denied initially on March 24, 2010, and he requested a hearing before an ALJ (Administrative Transcript ("Tr.") 10). The video hearing, at which plaintiff testified, was conducted on August 10, 2011. (Tr. 23-54).

In a decision dated October 28, 2011, the ALJ found that plaintiff was not disabled. (Tr. 10-18). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on September 27, 2012. (Tr. 1-4).


Plaintiff suffered comminuted fractures to his left distal tibia and fibula following a fall from a roof during work on March 30, 2005. ( See, e.g., Tr. 376, 383). Plaintiff underwent two surgeries to repair the fracture. ( See, e.g., Tr. 517, 452). Since the accident, plaintiff has had pain in his left ankle and a decreased range of motion. Plaintiff has also developed back and neck pain and suffers from moderate disc disease. ( See, e.g., Tr. 391). Plaintiff's counsel has included a detailed summary of the facts in his brief. (Pl. Br. at 1-11). Defendant's counsel has incorporated the plaintiff's summary and the ALJ's statement of facts into his brief. (Def. Br. at 2). This court will also incorporate the facts as stated by the ALJ and both counsel, with any exceptions as noted in the discussion below.


The ALJ found that plaintiff has not engaged in substantial gainful activity since the application date. (Tr. 12). The ALJ further found that plaintiff suffered from two severe impairments-a fractured left ankle, resulting from a fall off a roof in 2005, and cervical and lumbar disc disease. (Tr. 12, 15). The ALJ also addressed plaintiff's right wrist pain, but found that it did not constitute a severe impairment because the x-rays were normal, and no functional limitations were established with respect to that impairment. (Tr. 12). Next, the ALJ considered whether plaintiff's impairments met the severity of the listed impairments. (Tr. 13). Explicitly considering listings 1.02 and 1.04, the ALJ concluded that plaintiff's impairments did not meet the requirements of either section. ( Id. ).

The ALJ next found that plaintiff had the residual functional capacity to perform a full range of sedentary work except for activities involving climbing ladders/ropes/scaffolds, vibrations, and pushing or pulling with the left lower extremity. (Tr. 13). The ALJ explained that in making this finding, he considered plaintiff's symptoms and opinion evidence in accordance with the applicable regulations. In evaluating the credibility of plaintiff's claimed symptoms he explained the two step process that he must follow: first, determining whether there is an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the claimant's pain or other symptoms; and second, evaluating the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit the claimant's functioning. (Tr. 13).

The ALJ discussed the Workers' Compensation exam performed by Dr. Joseph Ortiz in 2007, observing that Dr. Ortiz opined that plaintiff's work "would have to be of a clerical nature in the sitting position" and he would need "to avoid prolonged standing and walking." (Tr. 13-14). The ALJ also discussed the opinion of one of plaintiff's treating physicians, Dr. Roger Sullivan, who treated plaintiff for back, neck, and ankle pain. (Tr. 14). The ALJ noted that Dr. Thomas Kristiansen found that plaintiff suffered from post-traumatic arthritis, which would eventually require an ankle fusion. (Tr. 14). The ALJ also had the benefit of a consultative examination by Dr. Nader Wassef, and an evaluation by Dr. Ayaz Khan. (Tr. 14-15). Finally, the ALJ addressed the opinion of Dr. Elizabeth Logalbo, who completed a very restrictive Medical Source Statement. The ALJ gave "less weight" to this opinion, finding it "inconsistent with her treatment and... exaggerated." (Tr. 15). The ALJ further explained that Dr. Logalbo[2] only began treating plaintiff in December 2010, and that although her Medical Source Statement contained significant limitations, they were not supported by the remaining medical evidence-either by her own records or those from Drs. Sullivan, Kristiansen, and Wassef. (Tr. 16).

The ALJ also addressed plaintiff's complaints of major cramping in his left foot, bone spurs, and arthritis, back and neck stiffness, right wrist cramping, and left wrist weakness. (Tr. 15). The ALJ noted that plaintiff takes Vicodin every day, Motrin/Tylenol 6-8 times a week, and that the Vicodin helps but never takes away the pain. (Tr. 15). The ALJ found plaintiff's statements regarding the intensity, frequency, and limiting nature of his impairments to be not totally credible, considering the factors outlined in Social Security Ruling 96-7p. (Tr. 16). The ALJ further explained that Dr. Sullivan opined that plaintiff's ankle pain was controlled with Vicodin, and his back pain was stable; Dr. Kristiansen opined that plaintiff needed an ankle fusion and removal of the hardware, but plaintiff put off the surgery. (Tr. 16). Additionally, although plaintiff alleged restricted activities of daily living, the ALJ found that plaintiff's use of medication and course of medical treatment are inconsistent with greater limits and that his impairments appear to be adequately controlled with conservative treatment and Vicodin. (Tr. 17). Plaintiff has not increased the frequency of his treatment, has had no emergency care, and refused epidural steroid injections, instead requesting to simply continue with narcotic medications. ( Id. ).

Next the ALJ found that plaintiff is unable to perform his past relevant work as a construction laborer, but that considering his RFC, age, education, and work experience in conjunction with the Medical-Vocational Guidelines, plaintiff was able to perform a full range of sedentary work. In making this determination, the ALJ noted that postural limitations or restrictions related to activities such as climbing ladders, ropes, or scaffolds, vibrations, pushing and pulling would not usually erode the occupational base for a full range of unskilled sedentary work significantly, because those activities are not usually required in sedentary work. (Tr. 17-18).


A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se] disabled.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (clarifying that the burden shift to the Commissioner at step five is ...

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