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Muehleisen v. Colvin

United States District Court, W.D. New York

November 17, 2014

MICHAEL MUEHLEISEN, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant

For Michael Muehleisen, Plaintiff: Kenneth R. Hiller, LEAD ATTORNEY, Law Offices of Kenneth Hiller, Amherst, NY.

For Carolyn W. Colvin, Defendant: Richard D. Kaufman, LEAD ATTORNEY, U.S. Attorney's Office, Buffalo, NY.

OPINION

MICHAEL A. TELESCA, United States District Judge.

DECISION and ORDER

INTRODUCTION

Plaintiff Michael Muehleisen (" 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 his application for Disability Insurance Benefits (" DIB") and 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. ##8, 9.

BACKGROUND

On January 21, 2010, Plaintiff filed applications for DIB and SSI alleging that he was disabled beginning January 1, 2000, due to left shoulder injury, nerve damage, and neck injury. T. 155-65, 187-88. Those applications were denied on May 18, 2010, and Plaintiff subsequently requested a hearing before an Administrative Law Judge (" ALJ"). T. 73-80, 83-85. Plaintiff's video hearing was conducted before ALJ Roxanne Fuller on August 22, 2011. T. 40-64. Independent Vocational Expert (" VE") Dian L. Haller also testified at the hearing. T. 59-63. The ALJ issued a written decision on September 7, 2011, finding that Plaintiff was not disabled. T. 19-39.

In applying the familiar five-step sequential analysis, as contained in the administrative regulations promulgated by the SSA, see 20 C.F.R. § § 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found: (1) Plaintiff had not engaged in substantial gainful activity since the alleged onset date; (2) he had the severe impairments of degenerative disc disease, multi-level spondylosis, and facet osteoarthrosis; (3) his impairments did not meet or equal the Listings set forth at 20 C.F.R. 404, Subpart P, Appendix 1, and that Plaintiff retained the residual functional capacity (" RFC") to perform light work with varying limitations in pushing and pulling, climbing, stooping, reaching, handling, gross manipulation, and fine manipulation; (4) Plaintiff could not perform his past relevant work as a material handler, roofer, and construction worker; and (5) Plaintiff was not disabled as he was capable of making an adjustment to other work existing in significant numbers in the national economy. T. 24-35.

The ALJ's determination became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on October 2, 2012. T. 1-6. Plaintiff then filed this timely action. Dkt.#1.

Plaintiff moves for judgment on the pleadings on the following grounds: (1) the ALJ erred when he found Plaintiff's mental impairments non-severe; (2) the RFC determination was erroneous; (3) the ALJ applied the improper legal standard in assessing Plaintiff's credibility; and (4) the testimony of the VE did not constitute substantial evidence. Pl. Mem. (Dkt.#9-1) 10-20. The Commissioner also moves for judgment on the pleadings on grounds that the ALJ's decision is correct and is supported by substantial evidence. Comm'r Mem. (Dkt.#8-1) 15-19.

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

DISCUSSION

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, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); see also Metro. Stevedore Co. v. Rambo, 521 U.S. 121, 149, 117 S.Ct. 1953, 138 L.Ed.2d 327 (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, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

II. Medical Evidence

A. Treatment for Physical Impairments

On August 27, 2009, Plaintiff was evaluated by treating physician Michael J. Ostempowski, M.D., who noted a history of back pain and trouble with the left shoulder dating back 8 to 10 years. T. 251. Dr. Ostempowski observed muscle atrophy in Plaintiff's upper left extremity, with " reasonably good strength" in the left shoulder and intact distal neurovascular status was intact. Id. A left shoulder x-ray showed significant cervical spinal disease but no significant bony pathology. Id.

Plaintiff underwent an EMG/nerve conduction study in September 2009, which revealed a moderate-to-marked degree of old denervation in nearly every muscle of the left upper extremity. T. 241. The reviewing neurologist, Valerie Vullo, M.D., reported that there appeared to be some acute/ongoing denervation in the left biceps, but not in any other muscles, which could possibly be caused by multilevel cervical radiculopathy or polyneuropathy. Id. An MRI two days later showed severe multilevel spondylosis and facet osteoarthrosis, reversal of normal lordosis C3-7, and pronounced disc disease at the C5-6 disc level where there was a large midline focal spondylitic protrusion indenting the thecal sac and mildly flattening the ventral cord and severe bilateral foraminal stenosis. T. 247.

At a follow-up examination on September 24, 2009, Dr. Ostempowski noted that Plaintiff had muscle atrophy, but good range of motion of his left shoulder. T. 249. He recommended that ...


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