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May v. Colvin

United States District Court, W.D. New York

July 10, 2014

HARRY MAY, II, Plaintiff,


MICHAEL A. TELESCA, District Judge.


Plaintiff, Harry May, II ("Plaintiff" or "May"), brings this action under Title II of the Social Security Act ("the Act"), claiming that the Commissioner of Social Security ("Commissioner" or "Defendant") improperly denied his application for Disability Insurance Benefits ("DIB").

Currently before the Court are the parties' competing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I grant the Commissioner's motion, deny the Plaintiff's motion, and dismiss the Complaint.


On September 16, 2011, Plaintiff filed an application for DIB, alleging disability as of May 11, 2011, which was denied. Administrative Transcript [T.] 110-114, 208-214, 252. At Plaintiff's request, a hearing was held on May 10, 2012, via videoconference, and continued on August 8, 2012, before administrative law judge ("ALJ") Edward I. Pitts, at which Plaintiff, who was represented by counsel, testified, as well his wife, and a vocational expert ("VE"). T. 27-67, 68-102. On September 18, 2012, the ALJ issued a decision finding that Plaintiff was not disabled during the relevant period. T. 10-19.

On November 14, 2012, the Appeals Councils denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T. 1-4. This action followed.


Relevant Medical Evidence Prior to May 11, 2011

In April 2010, Plaintiff underwent anterior cervical discectomy and fusion of C6-7 with bone grafts and a spinal plate. T. 333, 335-336. Following the surgery, x-rays of Plaintiff's cervical spine showed normal alignment. T. 339. In May 2010, Plaintiff reported hoarseness following surgery, and was diagnosed with hoarseness secondary to paralysis of the left recurrent laryngeal nerve. T. 349-351. In November 2010 and January 2011, Plaintiff reported arm pain and numbness, and he was diagnosed with cervical radiculopathy. T. 355-356, 357-358.

Relevant Evidence from May 11, 2011 to September 18, 2012

On May 11, 2011, Plaintiff underwent cervical spine surgery by Craig T. Montgomery, M.D. due to cervical instability and pseudoarthrosis at the C5-6 and C6-7 levels. T. 359-361, 442, 446-447. At a post-operative follow-up in July 2011, Dr. Montgomery reported that Plaintiff was "doing very well" and had full strength in all muscle groups, normal sensation in his upper and lower extremities and no gait disturbances. T. 369. He recommended that Plaintiff begin physical therapy ("PT") with neck exercises. T. 369. In September 2011, Dr. Montgomery noted that Plaintiff reported that he was making slow improvement with PT, but also noted that "we are concerned that the fusion has not taken 100% or that there could be a problem with the constructs." T. 368.

On September 27, 2011, Plaintiff underwent a CT scan of his abdomen and pelvis, which showed a fatty structure apposed to the left colon sigmoid junction with healed or resolving epiploic appendagitis. T. 397. Two days later, Subramaniam Sadhasivam, M.D. diagnosed abdominal pain and rectal bleeding, and reported that Plaintiff's CT scan of the abdomen showing sigmoid diverticulitis. T. 385. On November 17, 2011, Plaintiff underwent an upper GI series and small bowel follow-through, which rendered normal findings. T. 642. Later that same month, Plaintiff underwent a colonoscopy, which showed no visible signs of colitis, no polyps or neoplasms, no signs of diverticular disease, and colonic biopsy showed unremarkable colonic mucosa with benign lymphoid aggregate. T. 522-525.

On January 23, 2012, Dr. John Rominger performed a panendoscopy with biopsies in response to Plaintiff's complaints of nausea, vomiting, and weight loss. T. 490-491. Test results showed no signs of mass, ulceration or varices of the esophagus and stomach. Pathology reports showed that the duodenal mucosa showed moderate chronic duodenitis, but were otherwise normal. Tests were "significantly positive" for heliobacter microorganisms. T. 520.

In May 2012, treating physician Greg J. Schultz, M.D. completed a questionnaire form. T. 632-634. Dr. Schultz assessed that Plaintiff had residual effects of failed cervical spine surgery and that he "requires complete freedom to rest frequently without restriction." T. 632. Dr. Schultz opined that Plaintiff could sit for less than six hours in an eight hour day and needed to alternate positions between sitting and standing. T. 633. He also opined that Plaintiff could not stand and/or walk for two hours in an eight-hour day and that he should not lift any weight. Dr. Schultz assessed "mild" limitations in Plaintiff's concentration and "moderate" limitations in his ability to sustain work pace. T. 633. Dr. Schultz noted that he did not expect Plaintiff's medications to cause or worsen his fatigue. T. 634. In an addendum to the questionnaire form, Dr. Schultz opined that Plaintiff needed to rest more than 20% of the time and that he was likely to be absent from work more than two days per month. Dr. Schultz assessed that Plaintiff could do "virtually" no reaching overhead with either arm, and that he could do all other reaching less than 10% of the day. T. 638.

On July 20, 2012, Rod Noel, LCSW ("Noel") completed a Mental Questionnaire form covering the period June 9, 2012 to July 20, 2012. T. 637. Noel diagnosed depression, and opined that Plaintiff had "marked" to "extreme" limitations of his abilities to perform work-related mental activities in the areas of concentration and persistence, interaction with others, and adaptation/stress. T. 635-636. According to Noel, Plaintiff's current medications caused fatigue, loss of memory and concentration issues. T. 637.

Consultative Opinions

On December 23, 2011, Plaintiff underwent a consultative physical examination with Sandra Boehlert, M.D., who diagnosed cervical spine fusion complicated by persistent right radicular pain, vocal cord scarring causing voice impairment, high cholesterol and blood pressure, and a history of cardiac arrhythmia. T. 402. Dr. Boehlert opined that Plaintiff had moderate to marked limitation with repetitive talking, moderate limitation with use of his right arm for overhead reaching or heavy pushing, pulling, or repetitive exertion, mild limitation to heavy ambulation and heavy exertion in the standing position, and moderate limitation to repetitive rotation of the cervical spine. T. 403.

Also on December 23, 2011, Plaintiff underwent a psychological examination with Seth Rigberg, Ph.D., who diagnosed adjustment disorder with mixed anxiety and depressed mood. T. 406. He opined that Plaintiff was able to follow and understand simple directions and instructions and perform simple tasks independently. He was able to maintain attention and concentration and maintain a regular schedule. He assessed that Plaintiff could relate adequately with others and was able to appropriately become accustomed to changes in routine. Dr. Rigberg noted that Plaintiff's reported limitations "are apparently more due to his medical condition and not due to psychiatric difficulties." T. 406.

On January 9, 2012, State Agency psychological consultant A. Hochberg reviewed the evidence in the file and completed a psychiatric review technique form. T. 408-421. Dr. Hochberg opined that Plaintiff had "mild" restrictions of activities of daily living and maintaining social functioning and "moderate" restrictions in maintaining concentration, persistence or pace. He reported that there was "insufficient evidence" with respect to the area of repeated episodes of decompensation each of extended duration. T. 418. Dr. Hochberg also completed a Mental Residual Functional Capacity Assessment Form (MRFC) on January 9, 2012 and assessed that Plaintiff was either "not significantly limited" or "moderately limited" in the areas of understanding and memory, sustained concentration and persistence, social interaction, and adaptation. He reported that Plaintiff "alleg[es] depression and anxiety secondary to medical impairments." T. 424. He opined that Plaintiff could perform simple jobs. T. 424.

Relevant Hearing Testimony

Plaintiff, who was age 47 at the time of the hearing, testified that he graduated from high school and had prior work as a furniture sales person, a liaison at a clutch and bearings manufacturer, a branch manager of a temporary services agency, a security officer, a telephone sales person, an employment coordinator for the Steuben County Department of Social Services, and a human resources manager for a nursing facility. T. 32, 33-39. He testified that he is unable to work due to vocal cord problems, abdominal pain, difficulty sitting, ...

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