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Perry v. Colvin

United States District Court, W.D. New York

April 29, 2015

DARCY PERRY, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.


MICHAEL A. TELESCA, District Judge.


Plaintiff Darcy Perry, ("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 Disability Insurance Benefits ("DIB"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). 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. ##7, 9.


Plaintiff protectively filed a DIB application on October 23, 2008, alleging disability beginning January 1, 1997, on the basis of multiple sclerosis ("MS"), depression, [2] and irritable bowel syndrome ("IBS"). T. 101-02, 116. Her application was denied on April 2, 2009, and a hearing before Administrative Law Judge ("ALJ") Robert Harvey followed on October 6, 2010. There, the ALJ heard testimony from Plaintiff, who was represented by counsel, as well as from a vocational expert. T. 25-52.

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 did not engage in substantial gainful activity during the period from her alleged onset date through her date last insured of June 30, 2002; (2) she had the severe impairment of multiple sclerosis; (3) her impairment did not meet or equal the Listings set forth at 20 C.F.R. 404, Subpart P, Appendix 1, and that she retained the residual functional capacity ("RFC") to occasionally lift/carry 20 pounds and frequently lift/carry 10 pounds; stand/walk for six hours and sit for two hours in an eight-hour work day. The ALJ further found that Plaintiff could not work in areas of unprotected heights or around heavy, moving, or dangerous machinery; climb ropes, ladders, or scaffolds, or exposed to cold or heat; and had occasional limitations in climbing, squatting, kneeling, balancing, and crawling; (4) through the date last insured, Plaintiff was unable to perform any past relevant work; and (5) considering her age, education, work experience, and RFC, Plaintiff had acquired work skills from past relevant work that were transferrable to other occupations existing in significant numbers in the national economy. T. 19-23.

An unfavorable decision was issued on October 21, 2010. The ALJ's determination that Plaintiff was not disabled became the final decision of the Commissioner when the Appeals Council denied her request for review on March 20, 2012. T. 1-6. This action followed. Dkt. #1.

The Commissioner moves for judgment on the pleadings on the grounds that substantial evidence supports the Commissioner's final decision that Plaintiff was not entitled to DIB. Comm'r Mem. (Dkt. #8) 1-23. Plaintiff has filed a cross-motion alleging that the ALJ failed to develop the record an apply the appropriate legal standards regarding the onset of limitations; the credibility assessment was legally erroneous and not supported by substantial evidence; and the vocational expert testimony did not provide substantial evidence to support the denial of benefits. Pl. Mem. (Dkt. #9-1) 1-18.

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


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

A. Treatment Records Prior to the Relevant Period

Plaintiff was diagnosed with MS in 1981, confirmed by MRI in June of 1987. T. 210-11, 218-20. Between 1985 to 2007, Plaintiff was treated by neurologist Dr. Svend Gothgen approximately twice a year, excluding an 8-year gap starting in 1990. T. 182-220. Examinations leading up to the relevant period were largely unremarkable. In August of 1988, Plaintiff's symptoms were under control with "some problems off and on with her left side, " which "most likely does not represent any new demyelinating activity." T. 209.

B. Records Relating to the Relevant Period

1. Treating Neurologist

A July, 1998 examination was "unremarkable" and Dr. Gothgen noted that Plaintiff was basically asymptomatic apart from headaches and menses-related discomfort. Her neurological status was defined as stable. T. 206.

Subsequent visits to Dr. Gothgen between 1999 and 2002 revealed mild symptoms, such as: numbness in lower extremities, mild hemiparesis resulting in a slight limp, and restless legs, and Plaintiff was otherwise "holding her own." T. 201-205. In 2001, Plaintiff complained of ...

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