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Rogalski v. Colvin

United States District Court, W.D. New York

May 11, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


FRANK P. GERACI, Jr., Chief District Judge.

I. Introduction

Plaintiff Edmund Rogalski ("Plaintiff"), through his attorney Donald R. Bleier, Esq., brings this action pursuant to Title II of the Social Security Act ("SSA"), seeking review of the portion of the final decision of the Commissioner of Social Security ("Commissioner") that denied his application for Disability Insurance Benefits ("DIB"). ECF No. 1. Plaintiff does not contest the portion of the Commissioner's decision that he became disabled on November 12, 2008 and is entitled to Supplemental Security Income ("SSI") under Title XVI of the SSA. Tr. I.[1] Plaintiff only challenges the Administrative Law Judge's ("ALJ") finding that he was not entitled to DIB. ECF No. 10-1, at 1. The Court has jurisdiction over this matter under 42 U.S.C. §§ 405(g) and 1383(c)(3).

Each party has duly submitted a motion for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF Nos.10, 11. Defendant has additionally filed a memorandum of law in response to Plaintiff's Motion for Judgment on the Pleadings. ECF No. 13. For the reasons set forth below, I find the Commissioner's decision is supported by substantial evidence in the record and without legal error. Therefore, I grant the Commissioner's Motion for Judgment on the Pleadings and dismiss Plaintiff's claim.

II. Background

The parties agree that the issue in this case is whether substantial evidence supports the Commissioner's decision that Plaintiff did not become disabled prior to November 12, 2008. ECF No. 10-1, at 3; 11-1, at 3. Accordingly, I will focus particularly on the record evidence between December 20, 2005, Plaintiff's alleged date of disability onset for his DIB claim, and November 12, 2008. Tr. 141.

a. Procedural History

Plaintiff's claims for SSI and DIB have been heard by two separate ALJs, with an intervening SSA Appeals Council decision. Tr. 11, 83, 97. The second Appeals Council decision, dated June 20, 2013, affirmed the determination of the second ALJ that Plaintiff was entitled to receive SSI benefits, but not DIB. Tr. 1. This makes the determination of the second ALJ on March 14, 2012 the final decision of the Acting Commissioner of Social Security. Mr. Rogalski's case is thus ripe for my review.

Plaintiff initially filed for DIB under Title II of the SSA on April 15, 2008. Tr. 93. He alleged that disabling conditions made him unable to work as of October 15, 2001. Tr. 230-232. Plaintiff claimed, generally, that issues related to his back, knees, depression, and anxiety rendered him unable to work. Id. Plaintiff later amended his DIB onset date to December 20, 2005. Tr. 141. An initial Disability Determination and Transmittal denied Plaintiff's claim on October, 14, 2008. Tr. 81-82. In response, Plaintiff requested a hearing, at which he appeared via videoconference before ALJ Mark Solomon on June 23, 2010. Tr. 87. Plaintiff further sought SSI under Title XVI of the SSA in an additional claim filed on March 23, 2010. Tr. 140. ALJ Solomon consolidated the SSI and DIB claims. Tr. 40.

On July 13, 2010, ALJ Solomon issued a partially favorable decision in Plaintiff's case. Tr. 83. The ALJ found Plaintiff became disabled on March 23, 2010, entitling him to SSI benefits under Title XVI of the SSA. Tr. 87. ALJ Solomon determined Plaintiff suffered from two severe impairments: bilateral knee and mild left hip degeneration, as well as mild cervical degenerative disk disease. Tr. 89. Beginning March 23, 2010, the ALJ determined that no jobs existed in significant numbers in the national economy that Plaintiff could perform. Tr. 93. The ALJ also found Plaintiff was not disabled at any time prior to December 31, 2006, his date last insured ("DLI"). Tr. 87. Accordingly, Plaintiff was not entitled to DIB. Id.

Plaintiff, through his attorney Mr. Bleier, sought review by the SSA Appeals Council of ALJ Solomon's decision. Tr. 331-333. The Appeals Council, having reviewed the ALJ's July 13, 2010 decision, affirmed the ALJ's finding that Plaintiff was disabled on March 23, 2010 and is entitled to SSI. Tr. 98. The Appeals Council vacated the portion of the ALJ's decision relating to Plaintiff's DIB claims under Title II and remanded it to the ALJ for further development of the record.[2] Tr. 98-99.

ALJ Michael W. Devlin presided over Plaintiff's case on remand. Tr. 15. Plaintiff, again represented by Mr. Bleier, appeared in person and testified at a hearing before ALJ Devlin on January 26, 2012 in Rochester, NY. Id. Vocational Expert ("VE") Julie A. Andrews also appeared and testified at the hearing before ALJ Devlin, pursuant to the Appeal's Council's instructions. Id.

On March 14, 2012, ALJ Devlin issued the second partially favorable decision relating to Plaintiff's claim. Tr. 11. The ALJ concluded that Plaintiff "was not disabled prior to November 12, 2008, but became disabled on that date and has continued to be disabled through the date of this decision." Tr. 16. This meant Plaintiff was not disabled at any time through his DLI, December 31, 2006. Id. The decision preserved the status quo: Plaintiff would continue to receive SSI benefits, but not DIB. Tr. 15.

Plaintiff again appealed the ALJ's decision on May 15, 2012. Tr. 6. He specifically contended that ALJ Devlin, like the first ALJ, improperly provided details of his consideration of mental health issues and resulting limitations. Id. Plaintiff further alleged that the ALJ failed to properly address the alleged severe effects of Plaintiff's wrist impairments on Plaintiff's residual functioning capacity as well as whether Plaintiff's various knee ailments meet Listing 1.02 of Impairments under 20 C.F.R. Pt 404, Subpt. P. App. 1. Tr. 7-9. Finally, Plaintiff challenged ALJ Devlin's consideration of Plaintiff's residual functioning capacity and ALJ Devlin's "evaluation of credibility." Tr. 9-10.

The Appeals Council denied Plaintiff's request for review on June 20, 2013, finding "no reason to review the Administrative Law Judge's decision" for DIB. Tr. 1. The Appeals Council's denial makes ALJ Devlin's decision the final decision of the Acting Commissioner of Social Security in Plaintiff's case. Id. The Appeals Council noted that Plaintiff's SSI determination remained "fully favorable" and that his SSI payments would continue. Id.

On August 12, 2013, Plaintiff timely commenced the present action for review under 42 U.S.C. § 405(g). ECF No.1. Plaintiff claims the Commissioner's decision that he is not entitled to DIB is erroneous and supported by neither substantial evidence in the record nor the applicable law. Id.

b. Factual Background

Plaintiff Edmund Rogalski was born on November 12, 1958. Tr. 81. He completed schooling up to grade twelve and is a non-combat veteran of the Army and Army Reserves. Tr. 43, 374. Plaintiff began working as a tool and die maker when he left the Regular Army in 1978. Tr. 74. He worked in this trade until October 2001, when he claims his medical ailments made him unable to continue. Tr. 43. Plaintiff reported he lost his job as a machinist because knee pain made him incapable of standing for sustained periods of time. Tr. 592. Six months after he stopped working, Plaintiff described his knee pain level as a "ten" out of ten, with ten being the worst. Tr. 590. He worked for an unknown period around 2002 through a Monroe County Department of Social Services program in exchange for housing subsidies. Tr. 590-591.

Plaintiff was insured though December 31, 2006. Tr. 15. Accordingly, he must establish disability on or before this DLI in order to be entitled to receive DIB. 20 C.F.R. § 404.131(a). Although there are indications in the record that no particular event precipitated Plaintiff's knee issues ( See Tr. 475, 588, 589), there are other references in the record to a "twisting type injury" that might have involved a Frisbee game causing his knee pain. Tr. 565, 582, 588.

In May 2002, Plaintiff claimed to be "out looking for work" during a period when he was alleging disability. Tr. 586. He performed volunteer work involving therapy dogs at a nursing home in summer 2002. Tr. 568. Plaintiff also claims that, between 2001 and 2008, he "tried working at a couple machine shops" for "about a month at a time, " but he experienced pain that prevented him from continuing work. Tr. 46. In February 2003, Plaintiff claimed he was unable to secure work in his field because he "fails the physicals for his job interviews." Tr. 565. He reported later in 2003 that he had obtained "a full time job doing maintenance." Tr. 561. On September 15, 2004, Richard Mottern, M.D., noted that Plaintiff told him "he has been extremely active with his job as a contractor up and down ladders all day long." Tr. 557. Plaintiff later elaborated that he had been "employed at this firm for about one year" during that same 2004 time period. Tr. 544. There is no record evidence that Plaintiff received an income from work at any time after 2001, despite these claims. Tr. 246.

Plaintiff has testified to having psychiatric ailments, including depression, anxiety, and panic attacks. Tr. 70. He claims these began to bother him in 1997. Id. He describes his panic attacks as causing his hands to shake and making him unable to interact with others. Tr. 71. He testified that, despite regular checkups with Dr. Banzhaf at the Veterans Affairs Hospital in Canandaigua and receiving medication for these episodes, his panic attacks persist. Tr. 72-73. Plaintiff further acknowledges having alcohol problems over the years, at times drinking to supplement his pain medications. Id.

Plaintiff entered an inpatient Veterans Affairs-sponsored alcohol rehabilitation program on his own accord on September 27, 2004. Tr. 556. He claimed that at the time he sought treatment because "I lost my job and started drinking." Id. Plaintiff told counsellors he lost an unspecified job approximately a week and a half prior. Id. There appears to be a reference to this job in a September 29, 2004 Behavioral Health Treatment Plan note, which states: "patient indicate [sic] he has been employed however he has [sic] earning a living without paying any New York State and/or federal taxes." Tr. 551.

Plaintiff testified via videoconference before ALJ Solomon on June 23, 2010. Tr. 39. He answered questions from both the ALJ and his own attorney, Mr. Bleier. Tr. 40, 49. Prior to December of 2006, Plaintiff claims he required ambulatory assistance "with a cane and sometimes a walker." Tr. 44. During a typical day, Plaintiff testified he would "[w]alk around the trailer sometimes, just to get some exercise, " referring to the trailer in which he and a friend were then residing. Tr. 48. Plaintiff testified it was "difficult" for him to take care of his own personal needs on a daily basis, but that he "made it through." Tr. 47. He claimed that activities that required periods of standing, particularly cooking and showering, were "a bit of a challenge." Id. He remembers being treated for ongoing panic attacks around the time of his December 2006 DLL Tr. 53. Plaintiff estimated that the problems with his hip and lower back date back to at least 2004, describing his hip discomfort as "shooting pains" during that time period. Tr. 54. Pain in Plaintiff's left hip grew "progressively worse" from the end of 2006 until the time of his testimony in June 2010, he told the ALJ. Tr. 51.

Plaintiff testified that he, several times, tried to help train student apprentices in the trade of tool and die making. Tr. 69-70. He did not recall precisely when he assisted in training apprentices, estimating it was 2002 and 2004. Tr. 70. He claims he mostly assisted the students with mathematics, because he "couldn't do anything physically" as a result of his ailments. Tr. 69.

Plaintiff admitted to prior history of problematic drinking, but said he drank alcohol "once or twice in a couple weeks" around the time of the June 2010 hearing and had "experimented with [cocaine] once many, many years ago." Tr. 45. Though Plaintiff testified to having nearly daily panic attacks at the time of the videoconference hearing before the ALJ in June 2010, he testified that these attacks were not occurring as frequently around the time of his December 31, 2006 DLL Tr. 53.

Plaintiff testified in-person before ALJ Devlin on January 26, 2012. Tr. 63. The ALJ noted that the Appeals Counsel ordered further development of the record in Plaintiff's case. Tr. 59. Plaintiff claimed his right knee "didn't heal" after a June 2002 arthroscopic surgery meant to repair the knee. Tr. 63. He testified that he was using a cane and sometimes a walker to ambulate in the time period between December 2005 and November 2008. Tr. 64-65, 513. He said stairs posed "the worst" problem for him and that he "can't go up or down" stairs. Tr. 64. Plaintiff described experiencing numbness in both legs after periods of staying in the same position. Tr. 66. He also testified that he felt the sensation of "bone on bone rubbing" in his lower back during the same time period. Tr. 65-66.

Plaintiff periodically received Synvisc injections to alleviate his knee pain. Tr. 67. He testified that the injections would help with the pain "for about two weeks" before the earlier pain would return. Tr. 67. Between December of 2005 and November of 2008, Plaintiff estimates he could have sat for about forty-five minutes or stood for "no more than a half hour" without experiencing discomfort or pain. Tr. 67. During the same time period, he estimated he could walk about one city block with the assistance of a cane before he would need to sit down and rest. Tr. 68. He estimates he could lift "maybe five pounds" in the December 2005 through November 2008 time period, telling ALJ Devlin "it was too painful" when he attempted to go back to work and had to lift objects. Tr. 69.

Julie A. Andrews, the VE, offered testimony at Plaintiff's January 26, 2012 hearing before ALJ Devlin. Tr. 75. The VE classified Plaintiff's past relevant work as a tool and die maker, Dictionary of Occupational Titles ("DOT") Code 601.260-010. Tr. 75. She noted this is a highly skilled, medium exertion position that would carry transferable skills, including the ability to compute, compile, and analyze data as well as the ability to work within precise limits. Tr. 75-76.

ALJ Devlin proffered a hypothetical to VE Andrews, asking her to assume an individual aged 47 to 49 with a high school education and past relevant work as a tool and die maker. Id. The hypothetical individual can occasionally lift and/or carry less than ten pounds, stand and/or walk at least two hours during an eight-hour work day, be allowed to use a cane to ambulate to and from his workstation, never push or pull with his lower extremities, and occasionally push or pull less than ten pounds with his upper extremities. Id. The hypothetical individual is rarely able to climb ramps and/or stairs, balance, stoop, kneel, crouch, or crawl. Id. He can never climb ladders, ropes, or scaffolds. Tr. 77. He is able to understand, remember, and carry out simple and detailed instructions and tasks, as well as consistently maintain concentration and focus for up to two hours at a time. Id. The VE responded that she could identify multiple jobs in the national and local economies for the hypothetical individual. Id.

The VE identified an order clerk position, DOT Code 209.567-014, with 255, 000 positions in the national economy and 425 positions in the regional economy, here encompassing the Finger Lakes Region of New York State as deemed by the New York State Department of Labor. Id. In addition, she identified label pinker, DOT Code 585.685-062, as a job that could be performed by someone with the limitations set forth by the ALJ. Id. VE testified there exist 1.3 million label pinker positions in the national economy and 455 regionally. Id. The ALJ then posed a second hypothetical individual to the VE, asking her to assume the same parameters as in the first except that the second hypothetical individual is only able to sit for less than six hours in an eight-hour workday and walk less than two hours in an eight-hour workday. Tr. 78. Given these facts, the VE was unable to identify full-time jobs on a competitive basis for the second hypothetical individual. Id. Plaintiff's attorney told the ALJ he had no outstanding evidence to present and that the record was complete at the conclusion of the January 26, 2012 hearing. Tr. 80.

c. Medical Evidence of Physical Ailments

On February 15, 2002, Mary L. Matthew, M.D. observed Plaintiff at the Veterans Affairs Medical Clinic ("VAMC") in Canandaigua, NY. Tr. 592. Plaintiff presented as a forty-three year old being treated for lower back pain, knee pain, chronic alcoholism, and depression. Id. He complained specifically of ongoing pain in his right knee. Id. X-rays showed his right knee was "clearly swollen." Tr. 593. Dr. Matthew ordered ...

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