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Ventura v. Colvin

United States District Court, W.D. New York

October 2, 2014

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

Justin M. Goldstein, Esq. Kenneth R. Hiller, Esq. Law Offices of Kenneth Hiller, PPLC Amherst, New York For the Plaintiff.

Lauren E. Myers, Esq. Social Security Administration Office of General Counsel New York, New York

Mary Pat Fleming, Esq. Assistant United States Attorney Federal Center Buffalo, New York For the Defendant.


CHARLES J. SIRAGUSA, District Judge.


This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner" or "Defendant"), which denied the application of Joseph D. Ventura, Jr. ("Plaintiff") for Social Security Disability Insurance benefits. Now before the Court is Plaintiff's motion (Docket No. [#8]) for judgment on the pleadings, and Defendant's cross-motion [#12] for judgment on the pleadings. Defendant's application is granted and Plaintiff's application is denied.


On November 12, 2010, Plaintiff applied for disability benefits, claiming to be disabled due to the following conditions:"back injury, " "learning problems, " and "thyroid." (166).[1] In his application for benefits, Plaintiff indicated that he stopped working on February 6, 2009, when he was laid off from his job, and that his medical conditions became disabling on March 15, 2010. (166) The Commissioner denied the application.

On February 10, 2012, Administrative Law Judge David J. Begley ("the ALJ") conducted a hearing, at which Plaintiff appeared and testified, accompanied by his attorney. Plaintiff's attorney argued that he should be found disabled because he could not perform any of his past work and could only perform "significantly less than the exertional requirements required for sedentary work." (19). With regard to the adequacy of the record before the ALJ, Plaintiff's attorney stated that "an IQ consultative examination" might be needed because Plaintiff "ha[d] a history of special education." (18). On that point, counsel asked the ALJ to order such an examination in the event that Plaintiff's "exertional limitations weren't enough to support his application for disability." (18).

On April 6, 2012, the ALJ issued a Decision (57-65), finding that Plaintiff was not disabled at any time between the alleged date of onset and the date of the decision.

On June 6, 2012, Plaintiff, through his attorney, appealed to the Appeals Council. (14) At that time, Plaintiff alleged that he was disabled due to obesity, degenerative disc disease, mechanical low back pain, diverticulosis, and a learning disability. (248). Plaintiff alleged that the ALJ erred by not finding that his back pain and learning disability were severe impairments. (249) Plaintiff further alleged that the ALJ failed to follow the "treating physician" rule and consequently erred in formulating Plaintiff's residual functional capacity ("RFC"). Additionally, Plaintiff claimed that the ALJ had improperly evaluated his credibility and committed errors while questioning the vocational expert ("VE"). (251-252). However, the Appeals Council declined to review the ALJ's determination. (1-4).

On November 12, 2013, Plaintiff commenced this action. As will be discussed further below, Plaintiff maintains that the ALJ's decision was erroneous in several respects. First, Plaintiff maintains that the ALJ erred at step two of the five-step sequential analysis by finding that Plaintiff's back pain and learning disability were not "severe" impairments. In connection with that argument, Plaintiff contends that the ALJ failed to develop the record, because he did not order a consultative IQ test and because he did not obtain an actual copy of a 2011 MRI test result concerning Plaintiff's back, which test was discussed in the record.

Next, Plaintiff contends that the ALJ erred in making his RFC determination. In that regard, Plaintiff maintains that the ALJ improperly rejected the opinions of treating physician Dr. Walter Beecher ("Beecher") and non-treating consultative physician Dr. Robi Rosenfeld, D.O. ("Rosenfeld") and gave undue weight to the opinion of treatingconsulting physician Dr. John Orsini, M.D. ("Orsini"). Plaintiff states, for example, that the ALJ could not properly rely on Orsini's reports, since they did not express Orsini's opinion in terms of functional abilities/limitations, and that the ALJ was not qualified to draw his own conclusions as to functional limitations from Orsini's notes and reports.

And finally, Plaintiff maintains that the ALJ erred when evaluating his credibility. For example, Plaintiff contends that the ALJ did not follow the procedure outlined in 20 C.F.R. § 404.1529 and also misstated aspects of the record.


Plaintiff graduated from high school, apparently with a vocational diploma. (23) In that regard, Plaintiff indicates that he studied "mechanical work, " but "really couldn't do it because [he] couldn't grasp how to put stuff together." (23). Plaintiff indicates that he was in special education classes from fifth grade until graduation. (23)

Subsequently, Plaintiff has held a number of jobs, including laborer, mail supervisor for a airline freight company, assistant restaurant manager, furniture technician at a retail furniture store and pizza maker. (19, 21-22, 167). More specifically, Plaintiff worked as an assistant manager of a Wendy's restaurant for approximately five years, during which time his duties included hiring and firing staff, making work schedules for employees, handling a "multi phone line" and supervising staff. (210). Similarly, Plaintiff's work as an airline "mail supervisor" required him to hire and fire staff and make out employee work schedules, in addition to sorting mail, recording shipment data and handling issues with U.S. Customs. (192, 210).

In or about 2009, Plaintiff stopped working only because he was laid off, not because of a disability. (21). Plaintiff continued looking for work after he was laid off, and received twenty-six weeks of unemployment benefits. (21, 24-25). Specifically, Plaintiff received unemployment benefits through the first quarter of 2011 (24), even though he claims that he became unable to work on March 15, 2010. (166). Plaintiff acknowledges that as a condition of receiving such benefits he certified that he was "ready, able and willing to work, " and that he was in fact seeking work. (25-26). Nevertheless, he maintains that after being laid off his back pain worsened on its own and now prevents him from working.


Plaintiff is married and has five children, one of whom is in college. (22). Plaintiff's wife is employed. (22). Plaintiff has a driver's license and drove himself to the hearing. (23). Plaintiff contends, though, that he "sometimes" has difficulty driving, because he needs to "readjust[ his] position in the driver's seat." (23).

Plaintiff also drives fire trucks as a volunteer fireman. (34). In that regard, Plaintiff has been a volunteer fireman for many years, and states that, "I drive their apparatus when they - when there's [a] house fire." (34). Plaintiff has indicated that he attends fire department meetings approximately three times per month, and goes out to actual fire calls between one and five times per month. (180). At the hearing, Plaintiff stated that he had recently been unable to attend a fire call, but that was because his wife was working and he was watching their children. (34-35).

At the hearing, Plaintiff indicated that his typical day involves waking up, getting his children up for school, going back to bed, then getting his youngest child ready for school and putting him on the school bus. (31-32). After that, Plaintiff indicates that he sits in a chair, listens to music and plays solitaire on the computer. (33). At the hearing, Plaintiff told the ALJ that he does not watch television (33). However, when he applied for benefits he indicated that he watched television "every day." (180). In fact, Plaintiff indicated that he watched television more than ever since his back injury. (180) ("Watch t.v. more since my back got injured."). Plaintiff also previously told a consulting doctor that he watches television as part of his daily activities. (309).

When Plaintiff applied for benefits, he indicated that his daily activities also included performing "minimal housework, " driving one child to school, driving his wife to work, picking up other children from school and picking up his wife from work. (176). Additionally, Plaintiff indicated that he supervised his children in the evenings and helped them with their homework. (177). However, at the hearing Plaintiff testified that he cannot do housework, with the exception of washing dishes "for maybe about five minutes" before he needs to sit down. (32). Plaintiff further stated at the hearing that he cannot assist his children with their homework. (35) ("Homework, no, I cannot help them with their homework."); see also, id. at 36 ("I just don't understand it.").

When Plaintiff applied for benefits he indicated that he cooks for his family on a "daily" basis (178), but he told a consultative doctor that he does not cook. (309). Plaintiff also states that he used to go shopping with his wife, but not anymore, because walking around the store hurts his back. (32). It is unclear, though, when Plaintiff allegedly ceased shopping, since when he applied for benefits he indicated that he went shopping once or twice a week, as needed. (179).

Plaintiff states that he is able to bathe and dress himself "at times, " though he has his wife stay in the bathroom when he is bathing because "there have been times" when he "ha[s] slipped in the tub." (32). Plaintiff further contends that he cannot lift more than "five or ten pounds." (30).

Plaintiff further states that he "reads books" and also reads magazines such as ESPN Magazine and Outdoor Life. (33). Strangely, though, Plaintiff claims that he is unable to read a newspaper. (36-37). In that regard, he states that he cannot understand the newspaper unless someone reads it to him, because he has "trouble concentrating." (36-37). As further evidence of his difficulty concentrating, Plaintiff states that his mind wanders when his wife talks to him. (37).[2]

Nevertheless, Plaintiff indicates that he is able to pay bills and manage a bank account. (180).

Although Plaintiff is able to attend meetings and fire calls with his fire department, he contends that he is completely unable to attend any of his children's school events, and that the last such school event that he attended was eight years ago. (35).[3] Moreover, when Plaintiff was asked to state when he had last taken any kind of trip, he responded, "Never." (36).


Plaintiff's primary physical complaint is pain in his lower back. Plaintiff also claims to have thyroid problems and diverticulitis, but his thyroid problem appears to be asymptomatic and well-controlled medication (308), and his diverticulitis seems to have been limited to a few acute episodes, the most serious of which required him to be hospitalized for two days. (258, 263, 267, 275-276).

With regard to his alleged cognitive impairment, in 1986, when Plaintiff was eighteen years of age, school testing revealed that his WISC-R verbal score was 80, his performance scale was 82 and his full-scale score was 79 (240). Previously, in 1979 and 1983, Plaintiff's WISC-R full-scale scores were 86 and 65-77, respectively. (243). The school psychologist who reviewed Plaintiff's 1986 testing opined that Plaintiff had put forth "minimal effort" on the achievement portion of the testing, but that Plaintiff nevertheless had "considerable skill deficits." (244). The psychologist observed, though, that Plaintiff's strengths included his "short-term, rote memory skills, " and that his "strengths in certain organizational abilities [had] also been noted by some of [his] previous teachers." (244). The psychologist noted that Plaintiff had more difficulty with remembering information on a long-term basis, but that there were strategies that he could employ to help him retain information and master new tasks. (244-245).

Since graduating from high school, Plaintiff has never seen a doctor or psychologist for any "emotional or learning problems." (169). Nor is there any indication that his learning disability interfered with his ability to perform any of his past jobs, several of which required detailed record-keeping.[4] At most, Plaintiff states that some of his ...

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