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Keppeler v. Colvin

United States District Court, N.D. New York

March 31, 2015

KELLY ANNE KEPPELER, Plaintiff,
v.
CAROLYN W. COLVIN, Defendant.

HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Syracuse, New York, Attorneys for Plaintiff.

JEREMY A. LINDEN, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of Regional General Counsel, Region II, Attorneys for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff commenced this action on September 25, 2013, pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a decision by the Commissioner of Social Security denying Plaintiff's application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). See Dkt. No. 1.

On August 16, 2010, Plaintiff filed an application for DIB and SSI, alleging a disability onset date of August 16, 2010. See Dkt. No. 8, Administrative Transcript ("T.") at 126. This application was denied on October 21, 2010. T. at 134. Plaintiff then requested a hearing and appeared with her counsel before Administrative Law Judge ("ALJ") MaryJoan McNamara on December 1, 2011. Id. at 21. On December 29, 2011, ALJ McNamara issued a decision denying Plaintiff's application. See id. at 21-35. Plaintiff subsequently requested review by the Appeals Council and was denied such review on July 30, 2013, making the ALJ's decision the final decision of the Commissioner. See T. at 1-6.

Presently before the Court are the parties' cross motions for judgment on the pleadings. Dkt. Nos. 10, 14.

II. BACKGROUND

Plaintiff was born in 1963, and was 48 years old at the time of the hearing. T. at 79. Before August 16, 2010, Plaintiff reported work as a care giver. Id. at 81. Plaintiff testified that as part of her job she cleaned and bathed her client, and "just [kept her client] company and [made] her content." Id.

On April 6, 2010, Plaintiff presented to John F. Finkenstadt, M.D. See id. at 307-09. Dr. Finkenstadt found that Plaintiff had chronic low back pain and lumbosacral strain/dysfunction. Id. at 309. He stated that he is hopeful that "with regular physical activity and smoking cessation and weight loss[, ]" Plaintiff's low back pain will be kept in check. Id. Additionally, Dr. Finkenstadt noted that Plaintiff had "no acute distress[, ]" that "[s]he has pain with straight leg raising[, ]" and that she has "[n]o significant low back spasm." Id. at 308. Finally, Dr. Finkenstadt noted that Plaintiff "is tender in the iliolumbar, posterior sacral, and lower sacral regions on the right side only." Id. at 309.

On October 1, 2010, Plaintiff presented to Jeanne A. Shapiro, Ph.D. for a consultative psychiatric examination. See id. at 366-70. Dr. Shapiro noted that Plaintiff "reports that she is able to dress, bathe, and groom herself. She reports that she can cook and prepare food, do some general cleaning when she feels able, laundry once a week, shopping 2-3 times a month, manage money, drive, and take public transportation." Id. at 368-69. Further, Dr. Shapiro opined that Plaintiff "appears to be capable of understanding and following simple instructions and directions." Id. at 369. Dr. Shapiro also found that Plaintiff "appears to be capable of learning new tasks[, ]... making appropriate decisions[, ]... relat[ing] to and interact[ing] with others moderately well[, ]... and dealing with some stress." Id.

On the same day, Plaintiff presented to Kalyani Ganesh, M.D. for a consultative internal medicine examination. See id. at 371-74. Dr. Ganesh opined that Plaintiff "appeared in no acute distress. Gait normal. Can walk on heels and toes without difficulty. Cannot squat in full. Stance normal. Used no assistive devices. Needed no help changing for exam or getting on and off exam table. Able to rise from chair without difficulty." Id. at 372. According to Dr. Ganesh's medical source statement, "[n]o gross physical limitation was noted to sitting, standing, walking, and the use of upper extremities." Id. at 373.

On October 13, 2010, T. Inman-Dundon, a psychiatrist, completed a psychiatric review technique ("PRT") and a mental residual functional capacity ("MRFC") assessment for Plaintiff. See id. at 375-92. In the "B" criteria of the PRT, Dr. Inman-Dundon found mild limitations in activities of daily living, mild limitations in maintaining social functioning, moderate limitations maintaining concentration, persistence, or pace, and no episodes of deterioration of an extended duration. Id. at 385. Additionally, Dr. Inman-Dundon reported Plaintiff's MRFC as follows:

Based on the totality of the [Medical Evidence Record], [claimant] is able to understand, carry out, and remember simple instructions and some complex instructions, can make simple work-related decisions. She is able to maintain attention and concentration. She can maintain a regular schedule with moderate difficulty. She can respond appropriately to supervision, coworkers, and work situations with mild to moderate limitations. She can deal appropriately with changes in a routine work setting.

Id. at 391.

On October 20, 2010, P. Izakson ("Izakson"), a single decision maker, [1] completed a physical residual functional capacity ("PRFC") assessment. See id. at 393-98. He found that Plaintiff can occasionally climb, kneel, crouch, and crawl, and can frequently balance and stoop. Id. at 395. Additionally, he found that Plaintiff should avoid concentrated exposure to fumes, odors, dusts, gases, and poorly ventilated areas. Id. at 396.

The record contains three separate mental capacity assessment worksheets regarding Plaintiff completed by Linda Schreiber, a Nurse Practitioner ("NP Schreiber"). See id. at 406-08, 467-69, 475-77. Plaintiff has an extensive treatment record with NP Schreiber which dates back to at least April 4, 2007. Id. at 357-59.

In a mental capacity assessment completed January 12, 2011, NP Schreiber found the following: in understanding and memory ("Category One"), Plaintiff had a slight limitation in understanding and remembering very short and simple instructions, and moderate limitations in her ability to remember locations and work-like procedures, and to understand and remember detailed instructions. Id. at 406. In sustained concentration and persistence ("Category Two"), NP Schreiber found that Plaintiff had a slight limitation in working in coordination with or in proximity to others without being distracted by them and in performing at a consistent pace with a standard number and length of rest periods, a moderate limitation in carrying out very short and simple instructions, and a marked limitation in her ability to maintain attention and concentration for extended periods and in her ability to complete a normal workday or workweek without interruptions from psychologically based symptoms. Id. at 406-07. In social interaction ("Category Three"), NP Schreiber found a marked limitation in Plaintiff's ability to accept instructions and respond appropriately to criticism from supervisors. Id. at 407. Finally, in adaptation ("Category Four"), NP Schreiber found that Plaintiff had marked limitations in responding appropriately to changes in the work setting and in her ability to travel in unfamiliar places or use public transportation. Id. at 408.

In a mental capacity assessment completed November 8, 2011, NP Schreiber found the following: in Category One, Plaintiff had slight limitations in remembering locations and work-like procedures and understanding and remembering very short and simple instructions, and moderate limitations in understanding and remembering detailed instructions. Id. at 467. In Category Two, Plaintiff had slight limitations in performing at a consistent pace with a standard number and length of rest periods, moderate limitations in working in coordination with or in proximity to others without being distracted by them, moderate limitations in carrying out very short and simple instructions or detailed instructions, maintaining attention and concentration for extended periods, performing activities within a schedule, maintaining regular attendance, being punctual within customary tolerances, and moderate limitations in completing a normal workday or workweek without interruptions from psychologically based symptoms. Id. at 467-68. In Category Three, NP Schreiber reported no limitations. Id. at 468. In Category Four, Plaintiff had slight limitations in her ability to respond appropriately to changes in the work setting, and her ability to travel in unfamiliar places or use public transportation. Id. at 469.

In a medical source statement completed on October 9, 2012, NP Schreiber identified 21 out of 40 possible "signs and symptoms" present in Plaintiff. See id. at 475-76. Further, NP Schreiber reported that Plaintiff was unable to meet competitive standards in four categories, including completing a normal workday and workweek without interruptions from psychologically based symptoms, performing at a consistent pace without an unreasonable number and length of rest periods, dealing with normal work stress, and using public transportation. Id. at 476-77. Further, NP Schreiber reported that Plaintiff would be off task for more than twenty percent of an eight hour workday due to her impairments and work-related limitations. Id. at 477.

On May 4, 2011, Plaintiff presented to Robert S. Nolan, M.D., Ph.D., for a new patient consultation and examination. See id. at 472-73. Plaintiff's chief complaint was "[c]onstant low back pain for years." Id. at 472. Dr. Nolan reported that Plaintiff was "in no apparent distress, and that she was pleasant and well nourished." Id. Additionally, Dr. Nolan opined that Plaintiff's scheduled appointment with a pain management clinic was a reasonable course of action, and that "[i]f she ultimately fails conservative care [he] would recommend a [transforaminal lumbar interbody fusion] at L3/4." Id. at 473.

III. DISCUSSION

A. Legal Standards

1. Five-step analysis

For purposes of SSI, a person is disabled when he is 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 continuous period of not less than 12 months." 42 U.S.C. § 1382(c)(3)(A). There is a five-step analysis for evaluating disability claims:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citations omitted). The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step. Id.

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court must examine the Administrative Record to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and it ...


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