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Greek v. Colvin

United States District Court, W.D. New York

August 14, 2014

KEVIN GREEK, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant

Page 379

For Kevin Greek, Plaintiff: Mark M. McDonald, LEAD ATTORNEY, Bond and McDonald, Geneva, NY.

For Michael J. Astrue, Defendant: Kathryn L. Smith, LEAD ATTORNEY, U.S. Attorney's Office, Rochester, NY.

Page 380


ELIZABETH A. WOLFORD, United States District Judge.


Plaintiff Kevin Greek (" 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 Social Security Disability (" SSD" ) and Supplemental Security Income (" SSI" ) benefits. (Dkt. 1). Plaintiff alleges that the decision of Administrative Law Judge (" ALJ" ) Joseph Grow was not supported by substantial evidence in the record and was based on erroneous legal standards.

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. 4, 5). 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. Accordingly, the Commissioner's motion for judgment on the pleadings (Dkt. 4) is granted, and Plaintiff's motion (Dkt. 5) is denied. Plaintiff's complaint is dismissed with prejudice.


A. Overview

On August 4, 2009, Plaintiff protectively filed a Title II application for SSD, and on

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August 11, 2009, filed an application for SSI, alleging a disability beginning June 19, 2009. (Tr. 198-209). Plaintiff claimed the disability of diabetes mellitus, type I, with secondary effects of memory loss and altered mental state. (Tr. 30-31). On October 24, 2009, the Commissioner denied Plaintiff's application. (Tr. 131). Plaintiff timely filed a request for a hearing before an ALJ on December 9, 2009. (Tr. 135).

On September 27, 2010, Plaintiff, represented by counsel, testified at a video hearing before ALJ Joseph Grow. (Tr. 99-125). Vocational Expert (" VE" ) Victor G. Alberigi also testified. (Tr. 182-83). On October 8, 2010, the ALJ issued a finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 13-23).

Plaintiff timely filed a request for review of the ALJ's decision by the Appeals Council on November 12, 2010. (Tr. 5-7). On July 17, 2012, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Tr. 1-4). On August 23, 2012, Plaintiff filed this civil action appealing the final decision of the Commissioner. (Dkt. 1).

B. Non-Medical Evidence

Plaintiff was born on August 1, 1957, and was 53 years old at the time of the administrative hearing. (Tr. 102, 198). Plaintiff has a high school education and speaks English. (Tr. 103). He was previously employed as a sales associate and car parts manager. (Tr. 117-18).

1. Plaintiff's Testimony

Plaintiff testified that he had applied for salesman, lawn maintenance, and building maintenance positions but that, after speaking with his attorney, he felt he could not perform a full time job. (Tr. 104-05). He indicated that his greatest concern was his blood sugar lows and highs that could take one and a half to two hours to stabilize. (Tr. 105). Plaintiff stated that as of the date of the hearing, he had two incidents of blood sugar lows in the fourteen day period since his last insulin pump adjustment. (Tr. 106). According to Plaintiff, when he is experiencing one of these lows, " I get stupid; act like I'm drunk, belligerent." ( Id.).

Plaintiff testified that the insulin pump had somewhat improved his condition as far as stabilizing his blood sugar, but that he still experienced significant difficulty with memory loss. (Tr. 107).

According to Plaintiff, on a typical day, he would work in the yard, ride along with his step-daughter at her beef farm, or watch television. (Tr. 109). Plaintiff claimed that increased physical activity, such as sports or using the push lawn mower, could bring on a low. (Tr. 111).

2. Testimony of Deborah Greek, Plaintiff's Wife

Deborah Greek, Plaintiff's wife, testified that Plaintiff's diabetes was uncontrolled. (Tr. 113). Mrs. Greek indicated that Plaintiff had been to the emergency room two or three times for his diabetes. (Tr. 114). Mrs. Greek stated that his family has had to learn how to feed him and treat him in order to stabilize his glucose levels. ( Id.). According to Mrs. Greek, physical activity could negatively impact Plaintiff's sugar levels. (Tr. 116). Mrs. Greek stated that Plaintiff was " like a belligerent drunk" when he experienced a sugar low, and that he was " more apt to be sitting and sleeping" when he was experiencing a sugar high. (Tr. 114).

3. Affidavit Testimony of David Fox, Plaintiff's Brother-in-Law

David Fox, Plaintiff's brother-in-law, testified by affidavit dated January 25, 2010, that Plaintiff had trouble remembering

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things, and that Plaintiff could not work. (Tr. 362-64). Mr. Fox stated that he had witnessed Plaintiff " bottom out" at his house on at least three occasions in September 2008, and once in 2009. (Tr. 362). Additionally, Mr. Fox noted that Plaintiff would look " done in" after mowing his lawn. (Tr. 363).

4. Affidavit Testimony of Mary King, Plaintiff's Step-Daughter

Mary King, Plaintiff's step-daughter, testified by affidavit dated February 8, 2010, that Plaintiff was unable to work because he could not remember things. (Tr. 369). Ms. King stated that when Plaintiff had a low sugar level, he would slur his words and forget what he was doing. ( Id.). Ms. King stated that Plaintiff was not who he used to be. ( Id.).

5. Testimony of the Vocational Expert

The ALJ presented VE Victor Alberigi with a hypothetical question. (Tr. 117-20). The VE was asked to consider someone of Plaintiff's age, education, and experience who could perform work at the medium exertional level and who could perform simple, routine, repetitive tasks. (Tr. 118). The VE responded that the hypothetical individual could not perform Plaintiff's past work as a lawn mower salesman or parts manager, but he could perform the representative jobs of janitor, light cleaner and/or cleaner, charge account clerk, or dishwasher. (Tr. 119-20).

The ALJ posed a second hypothetical to the VE placing an additional limitation of the individual being off-task for at least two hours per day due to the effects of impairments outside of normal breaks. (Tr. 120). The VE responded that such an individual would be unable to perform work existing in the national economy. ( Id.).

Plaintiff's attorney also asked the VE to consider a hypothetical individual who would miss four or more days of work per month, or who would be off-task up to two hours per day at unpredictable times for at least eleven times within a two week period. ( Id.). The VE responded that, in either scenario, such an individual would be unable to perform work existing in the national economy. ( Id.).

C. Summary of the Medical Evidence

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

Plaintiff was first diagnosed with diabetes mellitus in September of 1998. (Tr. 30-31). Plaintiff was hospitalized on January 12, 2001, for improper use of insulin. (Tr. 77-78). On February 6, 2007, Plaintiff began treatment with Dr. Shahana Arshad. (Tr. 301). Dr. Arshad noted on April 29, 2008, that Plaintiff experienced inconsistent blood sugar levels, but did not have retinopathy or neuropathy. (Tr. 295). On April 29, 2009, Plaintiff followed up with Dr. Arshad, ...

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