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Lesterhuis v. Colvin

United States District Court, W.D. New York

August 11, 2014

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

As Amended October 21, 2014.

Page 597

For Marc Lesterhuis, Plaintiff: William J. McDonald, Jr., LEAD ATTORNEY, Bond and McDonald, Geneva, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Andreea Laura Lechleitner, LEAD ATTORNEY Social Security Administration, Office of General Counsel, New York, NY; Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY; Mary C. Kane, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

Page 598


ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Marc Lesterhuis (" 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" ), denying Plaintiff's application for disability insurance benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) Michael W. Devlin was not supported by substantial evidence in the record and was based on erroneous legal standards. Plaintiff further claims that the Appeals Council

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failed to consider new and material evidence.

Presently before the Court are the parties' Opposing motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. 5, 6). For the reasons set forth below, this Court finds that the decision of the Commissioner is supported by substantial evidence in the record and is in accordance with the applicable legal standards. Thus, the Commissioner's motion for judgment on the pleadings (Dkt. 6), is granted, and Plaintiff's motion (Dkt. 5) is denied. Plaintiff's complaint is dismissed with prejudice.


A. Overview

On February 19, 2009, Plaintiff protectively filed an application for disability insurance benefits. (Administrative Transcript (hereinafter " Tr." ) 75, 128-34). In his application, Plaintiff alleged a disability onset date of July 12, 2008. (Tr. 128). Plaintiff alleged the following disabilities: lower back injury and nerve damage, lumbar degenerative disc disease, and high blood pressure. (Tr. 159). On May 15, 2009, the Commissioner denied Plaintiff's application. (Tr. 79). Plaintiff timely filed a request for a hearing before an Administrative Law Judge. (Tr. 82).

On August 24, 2010, Plaintiff, represented by counsel, testified at a hearing before ALJ Devlin. (Tr. 52-73). Vocational Expert (" VE" ) Dr. Peter Mantee, also appeared and testified. (Tr. 54). On September 23, 2010, the ALJ issued a finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 33-46).

On September 12, 2011, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 3-5). On November 9, 2012, at Plaintiff's request, the Appeals Council gave Plaintiff an extension of time to file a civil action appealing the Commissioner's determination of no disability. (Tr. 1-2). On November 15, 2012, Plaintiff filed this civil action appealing the final decision of the Commissioner. (Dkt. 1).

B. The Non-Medical Evidence

At the time of the hearing, Plaintiff was a 42 year old male educated through the eleventh grade. (Tr. 45). Plaintiff had worked as a truck driver since 1986, and had stopped working on July 12, 2008, due to his alleged back impairments. (Tr. 160).

1. Plaintiffs Testimony

Plaintiff testified that he had injured his back when he fell at work on June 9, 2008. (Tr. 56). He stopped working on July 12, 2008, due to the injury. (Tr. 57). Plaintiff stated that he resumed working for three weeks in September 2008, but was forced to stop working because of his back pain. (Tr. 57, 59). Plaintiff reported that he had back surgery in July 2009, but that his condition only worsened. (Tr. 60).

Plaintiff testified that he could stand for one half hour, walk for one half mile, sit for 45 minutes to one hour, and lift five to ten pounds. (Tr. 62-64).

Plaintiff testified to experiencing numbness in his left leg that would cause him to favor his right side. (Tr. 63). He stated that he took Percocet and ibuprofen to manage the pain. (Tr. 64).

Plaintiff also reported that he was depressed, had trouble concentrating, and was seeing a therapist. (Tr. 65-66). He could no longer hunt or ride motorcycles; things he used to enjoy doing. (Tr. 60).

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2. Vocational Expert's Testimony

At the hearing, the ALJ presented VE Mantee with a hypothetical question. (Tr. 67-72). The VE was asked to consider someone of Plaintiff's age, education, and experience who could:

occasionally lift and/or carry 10 pounds, never frequently lift and/or carry, less than occasionally lift overhead, stand or walk at least two hours in an eight-hour workday, sit about six hours in an eight-hour workday, occasionally push and/or pull up to 10 pounds, never frequently push and/or pull, be allowed to alternate between sitting and standing every 30 minutes, less than occasionally climb ramps and/or stairs, stoop, kneel, crouch, and crawl, occasionally balance, never climb ladders, ropes, or scaffolds, never repetitively bend, stoop, or reach . . . all directions, including overhead . . . mentally be able to understand, remember, and carry out simple instructions and tasks, interact appropriately with co-workers and supervisors on a consistent basis, work in proximity to but not in conjunction with co-workers, less than occasional contact with the general public, less than occasional contact with the general public, and able to sustain sufficient concentration and focus to maintain regular and continued employment.

(Tr. 68-69).

The VE testified that a hypothetical individual with these abilities and restrictions would be able to perform occupations that existed in significant numbers in the national economy, including call-out operator and surveillance system monitor. (Tr. 70).

Plaintiff's attorney asked the VE if there would be any jobs for the hypothetical individual to perform if that individual were to be absent four days out of the month. (Tr. 71). The VE stated that there would be no available jobs with that additional limitation. ( Id ).

C. Summary of the Medical Evidence

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

1. Medical Evidence Presented to the ALJ

On July 22, 2008, Plaintiff went to the emergency room of F.F. Thompson Hospital for treatment related to a fall at work the prior month. (Tr. 229-31, 233-40). Kristine Tenebruso, M.D., examined Plaintiff and found reduced range of motion of his back, but no muscle spasm, vertebral point tenderness, or soft tissue tenderness. (Tr. 229-30). An x-ray revealed an osteophyte at the L5 disc space and " minimal to mild" degenerative disc disease, but no fracture. (Tr. 230-31). Dr. Tenebruso diagnosed lumbar strain, prescribed Plaintiff with Darvocet and ibuprofen, and advised Plaintiff to limit lifting and strenuous activity. (Tr. 230).

On July 29, 2008, Plaintiff's primary care physician, Dr. Timothy Ryan, ordered a magnetic resonance imaging (" MRI" ) of Plaintiff's lumbar spine. (Tr. 242). The MRI revealed a small to moderate disc extrusion at the L5-S1 disc space that compressed on the dural sac and the S1 nerve root; mild central stenosis at the L4-L5 disc space secondary to degenerative disc disease; and a small central disc extrusion/bony spur complex. (Tr. 242-43).

On September 16, 2008, Plaintiff saw Glenn Rechtine, M.D., for his back pain. (T. 255-56). Dr. Rechtine found no weakness or instability of the lumbar spine, and he found that plaintiff's motor strength was full with reflexes and sensation unremarkable. (Tr. 256). Dr. Rechtine diagnosed Plaintiff with spinal stenosis in the

Page 601

lumbar region and opined that Plaintiff could do light work full time. (Tr. 257). The doctor further opined that Plaintiff could lift up to ten pounds frequently; stand and walk occasionally; bend, squat, and do overhead activities occasionally; and use arm and leg controls occasionally. ( Id.). On December 9, 2008, Dr. Rechtine reasserted this opinion. (Tr. 276).

Plaintiff received seventeen physical therapy treatments between September and December 2008. (Tr. 287-98).

On October 2, 2008, Richard M. Byrne, M.D., an independent medical examiner, examined Plaintiff in connection with his Workers' Compensation case. (Tr. 358-62). Plaintiff reported that he was able to drive and do basic activities of daily living. (Tr. 359). Plaintiff further informed Dr. Byrne that he did not perform housecleaning, but would go shopping if he was assisted. ( Id.). Dr. Byrne found positive straight leg raising, diminished sensation, and reduced range of motion of the spine, but also found full motor strength and normal reflexes. (Tr. 360). Dr. Byrne reviewed Plaintiff's medical records and determined that Plaintiff could not return to his regular work but that he could perform sedentaiy work with limited standing ...

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