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Milks v. Colvin

United States District Court, N.D. New York

January 5, 2015

HOWARD MILKS, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

PETER A. GORTON, ESQ., LACHMAN & GORTON, Endicott, NY, Counsel for Plaintiff.

VERNON NORWOOD, ESQ., U.S. SOCIAL SECURITY ADMIN., OFFICE OF REG'L GEN. COUNSEL - REGION II, New York, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Howard Milks ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) are the parties' briefs, as well as Plaintiff's reply brief. (Dkt. Nos. 15, 21, 22.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted in part and denied in part[1] and Defendant's motion for remand is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born on May 30, 1961. He left school in the eighth grade but later earned a general equivalency diploma. Plaintiff has a limited work history that includes nine months of employment as a machine milker on a dairy farm. Generally, Plaintiff's alleged disability consists of borderline intellectual functioning, diabetes, degenerative joint disease of the knees, degenerative disc disease of the lumbar spine, obesity, a cardiac condition, kidney impairment, left shoulder pain, hepatitis C, hand tremors, high blood pressure, sleep apnea, fibromyalgia, depression and marijuana abuse. Plaintiff's alleged disability onset date is April 9, 2003.

B. Procedural History

On October 25, 2004, Plaintiff applied for Supplemental Security Income (SSI). Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On July 20, 2006, Plaintiff appeared at a hearing before the ALJ, Elizabeth W. Koennecke. (T. 263-283.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on September 18, 2006. (T. 8-21.) After the Appeals Council denied Plaintiff's request for review, Plaintiff timely commenced an action before this Court. See Milks v. Barnhart, No. 3:06-CV-1410 (LEK/RFT). On consent of the parties, the action was remanded to the Commissioner and on December 3, 2007, the Appeals Council remanded the action to ALJ Koennecke for further administrative proceedings.

On November 19, 2008 and April 6, 2009, hearings were held before the ALJ. In addition, Plaintiff deposed treating physician Maria Galu, M.D. on November 18, 2008. (T. 703-814, 696-702.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on June 16, 2009. (T. 290-302.) Once again, the Appeals Council denied Plaintiff's request for review and Plaintiff timely commenced an action before this Court. See Milks v. Comm'r of Soc. Sec., No. 3:11-CV-0502 (GTS/DRH). Again, on consent of the parties, the action was remanded to the Commissioner and on October 5, 2012, the Appeals Council remanded the action to an ALJ for further administrative proceedings.

On June 19, 2013, a hearing was held before ALJ, Edward I. Pitts. (T. 1191-1232.) On October 17, 2013, the ALJ issued a written decision finding Plaintiff not disabled, which subsequently became the final decision of the Commissioner. (T. 815-843.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (T. 821-837.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application date. (T. 821.) Second, the ALJ found that Plaintiff's borderline intellectual functioning, diabetes (as of July 17, 2007), degenerative joint disease of the knees, degenerative disc disease of the lumbar spine, obesity, and a cardiac condition (as of August 5, 2008, but this impairment became "non-severe" in less than 12 months) are severe impairments, but that Plaintiff's kidney impairment, left shoulder pain, hepatitis C, hand tremors, high blood pressure, sleep apnea, fibromyalgia, and depression with marijuana abuse are not severe. (T. 821-826.) Third, the ALJ found that Plaintiff's severe impairments, alone or in combination, did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 826-828.) The ALJ considered Listings 1.02, 1.04, 4.00, 5.00, 11.00, 12.00, and 12.05. Fourth, the ALJ found that

from the alleged onset date of April 9, 2003 through July 16, 2007, [Plaintiff] had the residual functional capacity [RFC] to lift/carry 20 pounds occasionally and 10 pounds frequently, sit for 6 hours in an 8 hour workday, stand/walk for 6 hours in an 8 hour workday, occasionally engage in postural activities and had no significant limitations on his abilities to reach, handle, finger and feel with the upper extremities. As to his mental [RFC] throughout the entire period since the onset date of April 9, 2003, [Plaintiff] can perform the basic mental demands of unskilled work which include the abilities to understand, carry out and remember simple instructions; respond appropriately to supervision, coworkers and usual work situations and deal with changes in a routine work setting. As of July 17, 2007, [Plaintiff] can lift/carry 10 pounds occasionally, sit for 6 hours ...

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