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Marullo v. Colvin

United States District Court, W.D. New York

October 28, 2014

MARY E. MARULLO, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.


MICHAEL A. TELESCA, District Judge.


Plaintiff Mary E. Marullo ("Plaintiff"), who is represented by counsel, brings this action pursuant to the Social Security Act ("the Act"), seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying her application for Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c). Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. ##9, 11.


Plaintiff protectively applied for SSI on March 21, 2008, alleging disability beginning January 17, 2008 due to neuropathy in both legs and nerve damage. T. 97-100, 108.[2] Her application was initially denied, and she requested a hearing before an Administrative Law Judge ("ALJ"). T. 51, 54-57, 62. Plaintiff appeared with counsel before ALJ Robert T. Harvey on June 17, 2010. T. 25-50. A written decision was issued on September 13, 2011, finding that Plaintiff was not disabled. T. 14-20.

In applying the familiar five-step sequential analysis, as contained in the administrative regulations promulgated by the Social Security Administration ("SSA"), [3] the ALJ found that Plaintiff had not engaged in substantial gainful activity since March 21, 2008. At step two, he found that her severe impairments were Charcot-Marie-Tooth disease, type 2; motor-sensory polyneuropathy of the lower extremity; obesity; and hereditary spastic paraparesis. At step three, he determined that Plaintiff's impairments did not meet or equal the Listings set forth at 20 C.F.R. § 404, Subpart P, Appendix 1. Next, the ALJ found that Plaintiff retained the residual functional capacity ("RFC") to lift, carry, push, and pull ten pounds; sit six hours and stand/walk two hours in an eight-hour workday; could not work at unprotected heights, exposed to cold, or around heavy, moving, or dangerous machinery. She could not crawl or climb ropes, ladders, or scaffolds, and had frequent limitations in bending, climbing, stooping, squatting, kneeling, and balancing, and occasional limitations in handling, fingering, and feeling. The ALJ further found that Plaintiff could sit or stand for thirty minutes before changing positions. The ALJ determined at step four that Plaintiff had no past relevant work, and at step five concluded that jobs existed in the national economy that Plaintiff could perform. As such, Plaintiff was found to be not disabled. T. 16-20.

The ALJ's determination became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on July 20, 2012. T. 1-4, 6-7. Plaintiff then filed this action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). Dkt.#1.

In the present motion, Plaintiff alleges that the ALJ's decision is erroneous because it is not supported by substantial evidence contained in the record, or is legally deficient and therefore she is entitled to judgment on the pleadings. Pl. Mem. (Dkt.#10) 7-14. The Commissioner cross-moves for judgment on the pleadings on the grounds that the ALJ's decision is correct, is supported by substantial evidence, and was made in accordance with applicable law. Comm'r Mem. (Dkt.#11-1) 17-25.

For the following reasons, Plaintiff's motion is denied, and the Commissioner's cross-motion is granted.


I. General Legal Principles

42 U.S.C. § 405(g) grants jurisdiction to district courts to hear claims based on the denial of Social Security benefits. Section 405(g) provides that the District Court "shall have the power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g) (2007). The section directs that when considering such a claim, the Court must accept the findings of fact made by the Commissioner, provided that such findings are supported by substantial evidence in the record. 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. NLRB , 305 U.S. 197, 229 (1938)); see also Metro. Stevedore Co. v. Rambo , 521 U.S. 121, 149 (1997).

When determining whether the Commissioner's findings are supported by substantial evidence, the Court's task is "to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn." Brown v. Apfel , 174 F.3d 59, 62 (2d Cir. 1999) (quoting Mongeur v. Heckler , 722 F.2d 1033, 1038 (2d Cir. 1983) (per curiam)). Section 405(g) limits the scope of the Court's review to two inquiries: determining whether the Commissioner's findings were supported by substantial evidence in the record as a whole, and whether the Commissioner's conclusions are based upon an erroneous legal standard. Green-Younger v. Barnhart , 335 F.3d 99, 105-06 (2d Cir. 2003); see also Mongeur , 722 F.2d at 1038 (finding a reviewing court does not try a benefits case de novo).

Under Rule 12(c), judgment on the pleadings may be granted where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc. , 842 F.2d 639, 642 (2d Cir. 1988). A party's motion will be dismissed if, after a review of the pleadings, the Court is convinced that the party does not set out factual allegations that are "enough to raise a right to relief beyond the speculative level." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007).

II. Medical Evidence

Beginning April 20, 2007, Plaintiff began treatment at DENT Neurologic Institute ("DENT") for back pain, pain in the lower extremities, and gait problems. T. 154. In June, 2007, an EMG/nerve conduction study revealed severe peripheral neuropathy with features of chronic axonal loss and probable demyelination in her right extremities and lower left extremities. T. 156-57.

Dr. Harnath Clerk, M.D., Plaintiff's primary care provider at the time, issued a treating source opinion that Plaintiff could sit, stand, and walk for a total of one hour per eight hour workday; that she could lift up to twenty pounds occasionally; needed a cane to ambulate; and that she should only occasionally climb, balance, stoop, kneel, crouch, or crawl. T. 214. Dr. Clerk further opined that Plaintiff should not be exposed to more than a moderate noise level; should only occasionally be exposed to unprotected heights, moving mechanical parts, operating a motor vehicle; humidity and wetness, dusts, odors, fumes, and pulmonary irritants, extreme cold or heat; and vibrations. T. 214-15.

On August 4, 2008, Plaintiff was consultatively examined by Kathleen Kelley, M.D., who diagnosed her with probable cerebral palsy with spastic dysplasia, hyper-reflexia of the lower extremities, and nonspecific ankle and knee pain with full range of motion T. 180. The doctor reported that Plaintiff showered, bathed, dressed herself, cooked, cleaned, did laundry, shopped, and watched television, but did not perform childcare activities. T. 177-78. The physical examination revealed spastic diplegic gait with inability to walk on heels, wide stance, positive Romberg test, and inability to walk tandem heel-to-toe. Babinski test was negative, muscle tone was normal, Plaintiff needed no help changing for exam or getting on and off the exam table, and was in no acute distress. T. 178. Plaintiff had no cyanosis, clubbing, or edema, ...

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