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Gray v. Colvin

United States District Court, W.D. New York

August 19, 2014



DAVID G. LARIMER, District Judge.


Plaintiff Tursha Gray ("Gray"), brings this action under 42 U.S.C. ยง 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that he is not disabled under the Social Security Act, and therefore, is not entitled to Social Security disability benefits.

Plaintiff originally applied for Social Security disability insurance benefits on December 8, 2008 (Tr. 122-123).[1] He alleged that he had been disabled since September 25, 2008, due primarily to neck, shoulder and back pain. Plaintiff's application was initially denied. Plaintiff then requested a hearing before an administrative law judge ("ALJ").

The hearing was held before ALJ Michael Devlin on April 14, 2010. (Tr. 44-71). ALJ Devlin determined that plaintiff was not disabled under the Act (Tr. 22-37), and that decision became the final decision of the Commission on July 16, 1012 when the Appeals Council denied plaintiff's request for review. (Tr. 1-6). This appeal followed.

The Commissioner has moved (Dkt. #5) and plaintiff has cross moved (Dkt. #7) for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons that follow, the Commissioner's decision is affirmed.


Familiarity with the pertinent facts, summarized below, is presumed.

Plaintiff was born August 15, 1963 and is presently 50 years old. He has an eleventh-grade education and past relevant work as a chemist, cook, motor vehicle detailer, machine operator, warehouse shipping and receiving worker, and temporary employee. On September 1, 2005, plaintiff was injured at work when a forklift drove into his desk and crushed him between the desk and a barrel of chemicals, injuring plaintiff's back, left arm, left shoulder and left leg and foot. (Tr. 223-224). Plaintiff thereafter consistently complained of back and leg pain, and was diagnosed with a partial left rotator cuff tear and lumbosacral strain, and treated with pain medications. (Tr. 223-226). In connection with his application for Workers' Compensation, two treating physician's assistants concluded that he was, for Workers' Compensation purposes, 50% disabled at that time, and was to lift no more than 25 pounds, limit bending and twisting, and work only part-time (5 hour days), light duty. (Tr. 253).

Plaintiff returned to work on a part-time basis. On September 24, 2008 (the day before his alleged disability onset date), plaintiff sustained a whiplash injury in a motor vehicle accident. (Tr. 287). At subsequent medical visits, plaintiff complained of ongoing back and neck pain, and was treated with pain medications. On November 7, 2008, plaintiff's treating nurse practitioner, Diane Olejar ("Olejar"), opined that plaintiff had achieved "maximum medical improvement, " stating that plaintiff had moderate impairment in his left shoulder and lower back, which resulted in the following exertional restrictions: limited reaching above the shoulder, lifting no more than 25 pounds, and pushing and pulling no more than 50 pounds. (Tr. 288). Olejar's treatment of plaintiff was supervised, and her treatment notes signed, by occupational medicine specialist Dr. Karl Auerbach. Id.

At the hearing, the ALJ heard testimony from a vocational expert ("VE"), Peter Manzi. The ALJ asked the VE whether an individual of plaintiff's age and background, with a high school education and the ability to lift and carry 10 pounds frequently and 20 pounds occasionally, stand or walk at least two hours and sit for at least six hours out of an 8-hour workday, push/pull no more than10 pounds with the upper extremities and only occasionally climb ramps and stairs, balance, stoop, kneel, crouch, crawl, reach, handle and finger with the dominant left arm and hand, and less than occasionally climb ladders, ropes and scaffolds, could perform work existing in significant numbers in the national economy. (Tr. 67). The VE replied that such an individual could perform the sedentary, unskilled positions of call-out operator, with 16, 011 jobs in the national economy and 55 in the Finger Lakes region, and surveillance system monitor, with 16, 763 jobs in the national economy and 63 in the Finger Lakes region. (Tr. 67-68)[2].

When asked whether jobs would exist for such an individual if additional limitations were added, including no more than occasional and no repetitive looking up, down or sideways, and/or the ability to alternate between sitting and standing every half-hour, the VE testified that only the surveillance system monitor position could still be performed with any or all of those additional limitations. (Tr. 68).


I. Standard for Determining ...

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