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Wilcox v. Colvin

United States District Court, W.D. New York

October 16, 2014

CAROLYN W. COLVIN, Acting Commissioner of Social Security[1], Defendant.


HUGH B. SCOTT, Magistrate Judge.

Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 11 (plaintiff), 13 (defendant)).


This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and/or Supplemental Security Income benefits.


The plaintiff ("Michelle Wilcox" or "plaintiff") filed an application for disability insurance benefits on June 5, 2012. That application was denied initially and on reconsideration. The plaintiff appeared before an Administrative Law Judge ("ALJ"), who considered the case de novo and concluded, in a written decision dated May 6, 2013, that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on September 18, 2013, when the Appeals Council denied plaintiff's request for review.

Plaintiff commenced this action on October 2, 2013 (Docket No. 1). The parties moved for judgment on the pleadings (Docket Nos. 11, 13). Responses were due June 9, 2014, reply by July 9, 2014 (Docket No. 12), and the motions were deemed submitted on July 9, 2014, without oral argument.


Plaintiff was born April 16, 1966, and has a bachelor's degree (R. 22). She worked as a barista, sales clerk, and assistant retail manager (R. 17, 22). At the time of her hearing, plaintiff worked part-time as a restaurant hostess but complained that the anxiety of the job that she could no longer perform it (R. 17). In her function report with her application, plaintiff stated that she lived alone, could care for her personal needs but had trouble buttoning and zipping her clothes (R. 17, 147-48). She stated that she had trouble lifting due to numbness in her hands and fingers, cannot stand long due to back pain, is out of breath when walking, cannot sit long because of cramps in her legs and knees (R. 17, 152). Plaintiff complained that her hands got stiff and her fingers got numb (R. 17, 153). She claimed that she had no problem getting along with people in authority (R. 17, 154). She said that "stress plays a huge role in my schedule" (R. 17, 155).


Plaintiff complains of fibromyalgia, chronic obstructive pulmonary disease (COPD), Raynaud's phenomenon (arthritis, inflammation & discoloration of hands, vasospasm of parts of the hand in response to cold or emotional stress, causing reversible discomfort and color changes, Docket No. 13, Def. Memo. at 1 n.1), anxiety, and depression (R. 14). Since there is no Social Security listing for fibromyalgia, the ALJ used the framework of Listing 14.02, systemic lupus erythematosus, and found that plaintiff did not meet this requirement (R. 15). As for the COPD, the ALJ applied Listing 3.02, chronic pulmonary insufficiency, and found that she did not have FEV values equal to or less than 1.65 or chronic impairment of gas exchange, or significantly abnormal arterial blood gas values (R. 15). As for her anxiety and depression, the ALJ found that her mental impairments singly or in combination did not meet or medically equal Listing 12.04 and 12.06, finding that the "paragraph B" criteria were not met (R. 15). She had mild restrictions for activities of daily living, moderate difficulties in social functioning and concentration, persistence or pace, and that plaintiff had no episodes of decompensation, but without at least two "marked" limitations or one "marked" limitation and "repeated" episodes of decompensation (R. 15-16). The ALJ also found that this record did not establish the presence of "paragraph C" criteria (R. 16).

The ALJ found that plaintiff has a residual functional capacity to perform light work, but with limitations that she could perform simple tasks with occasional interaction with coworkers, supervisors, and the public; that she should avoid concentrated exposure to dust, fumes, gases, odors, and other respiratory irritants (R. 16). The ALJ concluded that plaintiff's statements concerning the intensity, persistence, and limiting effects of her symptoms were not entirely credible (R. 17). The ALJ found that there was no evidence of trigger points or other evidence of fibromyalgia (R. 21). As for plaintiff's claimed mental impairments, the ALJ found that, while plaintiff had a long history of anxiety and depression, she also ignored physicians' advice on numerous occasions, was inconsistent in taking her medication, and failing to seek follow up treatment (despite insurance coverage issues) (R. 21). The ALJ declined to give weight to the opinion of treating nurse practitioner Merlin and Dr. Bennett's December 11, 2012, report as being totally inconsistent with the rest of the medical record, because the record showed plaintiff seeing Merlin only four times and not seeing Dr. Bennett (R. 22).

The ALJ concluded that plaintiff could not return to her past relevant work as a barista, sales clerk, or assistant retail manager since they require more than occasional contact with others (R. 22).


The only issue to be determined by this Court is whether the ALJ's decision that the plaintiff was not under a disability is supported by substantial evidence. See 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. National Labor Relations Bd., 305 U.S. 197, 229 (1938)).


For purposes of both Social Security Insurance and disability insurance benefits, a person is disabled when unable "to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a ...

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