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Phelps v. Colvin

United States District Court, W.D. New York

May 19, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Darquin L. Phelps, Plaintiff: Howard D. Olinsky, LEAD ATTORNEY, Olinsky & Shurtliff, LLP, Syracuse, NY; Jillian C. Karas, Olinsky Law Group, Syracuse, NY.

For Carolyn W. Colvin, Defendant: Grace M. Carducci, Kathryn L. Smith, LEAD ATTORNEYS, U.S. Attorney's Office, Rochester, NY; Katrina Marie Lederer, LEAD ATTORNEY, Social Security Administration, Office of General Counsel, New York, NY.

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ELIZABETH A. WOLFORD, United Sates District Judge.


Represented by counsel, Plaintiff Darquin L. Phelps (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § 405(g), seeking review of the final decision of Carolyn W. Colvin, Acting Commissioner of Social Security (" the Commissioner" )[1], denying Plaintiff's application for Supplemental Security Income (" SSI" ) benefits. (Dkt. 1). Presently before the Court are the parties' competing motions for judgment on the

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pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 7 & 9). Because this Court finds that the decision of the Commissioner is supported by substantial evidence and is in accordance with applicable law, the Commissioner's motion for judgment on the pleadings is granted, and Plaintiffs motion is denied.


A. Overview

On June 17, 2009, an application for SSI was protectively filed on behalf of Plaintiff, who was then a child under the age of 18. (Administrative Transcript (hereinafter " Tr." ) at 152-54). In his application, Plaintiff alleged disability due to hearing loss in his left ear, with a disability onset date of August 1, 2003. (Tr. 152, 189). On December 1, 2009, the Commissioner denied Plaintiffs application. (Tr. 80). Plaintiff timely filed a request for a hearing before an Administrative Law Judge (" ALJ" ). On May 10, 2011, Plaintiff, represented by counsel, and his mother, Cassandra Lenore Matthews (" Ms. Matthews" ), appeared and testified at a video hearing before ALJ Jennifer Whang. (Tr. 53-79). Vocational Expert (" VE" ) Arthur M. Brown also appeared and testified. ( Id.).

On May 23, 2011, ALJ Whang issued a decision finding that Plaintiff was not disabled. (Tr. 85-99). On October 3, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 7-9). Plaintiff commenced this civil action appealing the final decision of the Commissioner on January 15, 2013. (Dkt. 1).

B. The Non-Medical Evidence

1. Testimony of Plaintiff

At the May 10, 2011 hearing, Plaintiff testified that he was 18 years old and he was in eleventh grade regular education classes, but he did receive after-school help. (Tr. 72). Plaintiff stated that he had trouble hearing with his left ear, but his hearing was good in his right ear. ( Id.). Plaintiff testified that he enjoyed listening to music and had friends in the neighborhood. (Tr. 74). However, Plaintiff said he did not have friends in school because they had graduated. (Tr. 73). He had a driver's license and planned to go to trade school after graduation. (Tr. 74). According to Plaintiff, he had worked as a landscaper and cleaner the summer before the hearing, and also held a volunteer position supervising children at the local recreation center. (Tr. 72-73). Plaintiff testified that he left those positions when the school year started again. (Tr. 73).

2. Testimony of Ms. Matthews

Plaintiffs mother, Ms. Matthews, testified that Plaintiff lived with her and two of his siblings. (Tr. 60-61). According to Ms. Matthews, Plaintiff's multiple ear infections as a child caused hearing difficulties that caused Plaintiff to use a FM system for hearing amplification beginning when he was an elementary student and continuing until he was in ninth grade. (Tr. 62-64). Ms. Matthews said the school stopped providing the systems after Plaintiff destroyed three or four of them. (Tr. 67).

Ms. Matthews testified that Plaintiff has " a lot of behavioral issues" and was " constantly suspended." (Tr. 64). Ms. Matthews also testified that Plaintiff experienced anxiety and fits of " destructiveness" at home and at school. ( Id.). Ms. Matthews stated that Plaintiff has received counseling for anger management. (Tr. 65).

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She acknowledged that Plaintiff performed volunteer work over the summer that went well, but said that Plaintiff sometimes had trouble finishing tasks that he had started. ( Id.). She also testified that Attention Deficit Hyperactivity Disorder (" ADHD" ) ran in Plaintiff's family, and that Plaintiff had previously attended counseling and anger management classes, but stopped attending because Plaintiff's father was not consistently taking him to appointments. (Tr. 66-68).

3. Testimony of the Vocational Expert

VE Brown testified that a hypothetical individual with Plaintiff's age, education, and experience who has no exertional limitations should avoid concentrated exposure to noise and would be limited to jobs that do not require fine hearing capacity. (Tr. 77). The VE further noted that a person with these limitations would be able to perform jobs that exist in the national economy, including industrial cleaner, production laborer, and sorter. (Tr. 77-78). According to VE Brown, these positions require light to medium levels of exertion. (Tr. 78).

C. Summary of the Medical Evidence

The Court assumes the parties' familiarity with the medical record, which is summarized below.

On October 6, 1997, licensed audiologist Patricia Wissman tested Plaintiff's hearing capabilities. (Tr. 242). Testing indicated " moderately severe hearing loss in the high frequencies" in Plaintiffs left ear. ( Id.). Ms. Wissman recommended " preferential classroom seating in close proximity to the teacher/speaker and in clear view of all available visual cues." ( Id.).

Licensed audiologist Robin Parsons evaluated Plaintiff on March 24, 2004. Testing indicated poor word recognition in the left ear at " slightly elevated speaking levels." (Tr. 244). Ms. Parsons found " [w]ith hearing loss of this degree and nature [Plaintiff] can be expected to have difficulty hearing in some listening situations, especially in the presence of competing background noise." ( Id.). Additionally, she found Plaintiff will " have difficulty localizing the sound source." ( Id.).

One June 14, 2006, treatment note from Westside Health Services indicated that Plaintiff may have Attention Deficit Disorder (" ADD" ), and set a plan to refer Plaintiff to a psychologist to discuss a Ritalin prescription. (Tr. 256).

A May 17, 2007, treatment note from Westside Health Services showed that Plaintiff was assessed as a healthy 14-year old. (Tr. 258). Evaluations showed normal hearing in the right ear ...

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