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Smith v. Colvin

United States District Court, W.D. New York

June 30, 2015

WILLIAM S. SMITH, JR., Plaintiff,
and CAROLYN W. COLVIN, Commissioner of Social Security, [1] Defendant.


MICHAEL A. TELESCA, District Judge.


William S. Smith, Jr., ("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 applications for Supplemental Security Income ("SSI") and 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. ##9, 10.


Plaintiff protectively filed applications for SSI and DIB on April 14, 2009, alleging disability beginning December 14, 2006 due to spinal impairments affecting the cervical, thoracic, and lumbar regions; obesity; uncontrolled diabetes mellitus; complications from diabetes; and impairments of diabetic etiology including neuropathy. T. 71-84, 104-49. His applications were denied on June 11, 2009, and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). T. 85-86.

Plaintiff appeared with counsel before ALJ Robert Harvey in Buffalo, New York on December 7, 2010. T. 36-70. In applying the familiar five-step sequential analysis, as contained in the administrative regulations promulgated by the Social Security Administration ("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 since December 14, 2006;

(2) he had the severe impairments of discogenic cervical, thoracic, and lumbar spine impairments, diabetes mellitus, and obesity;

(3) his impairments did not meet or equal the Listings set forth at 20 C.F.R. 404, Subpt. P, Appx. 1, and that he retained the residual functional capacity ("RFC") to lift and carry 10 pounds, sit for 6 hours and stand or walk for 2 hours in an 8-hour work day, with only occasional bending climbing, stooping, squatting, kneeling, balancing, crawling, pushing and pulling with the upper extremities, could not work around unprotected heights or heavy, moving, or dangerous machinery, and could not climb ropes, ladders, or scaffolds; (4) Plaintiff could not perform his past relevant work; and (5) there was other work that existed in significant numbers in the national economy that Plaintiff could perform. T. 27-31.

The ALJ's decision that Plaintiff was not disabled under the Act was issued on January 10, 2011, and became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on September 4, 2012. T. 1-6. This action followed. Dkt.#1.

The Commissioner now moves for judgment on the pleadings asserting that substantial evidence supports the ALJ's decision that Plaintiff was not disabled during the period at issue. Comm'r Mem. (Dkt.#9-1) 20-24.

Plaintiff has filed a cross-motion alleging that:

(1) Plaintiff's spinal impairments met or medically equaled Listing 1.04A; (2) the ALJ failed to review the opinion of Plaintiff's treating physician; and (3) the ALJ was required to obtain vocational expert testimony at step five of the sequential evaluation. Pl. Mem. (Dkt. #11) 18-25.


I. Scope of Review

A federal court should set aside an ALJ decision to deny disability benefits only where it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted).

II.Relevant Medical Evidence

A. Treating Sources

Plaintiff attended the Veteran's Healthcare Administration ("VHA") for primary health care related to diabetes, back pain, and other various ailments from 2007 through 2010. T. 207-326, 354-61. Plaintiff was counseled on his diet and management of his diabetes at nearly every visit, and his diabetes was continuously noted to be poorly controlled. T. 243-44, 254, 261, 291, 300, 416, 430-31, 465. Lab work during this time period revealed abnormal findings, including elevated triglycerides, glucose, microalbumin/creatinine ratio, and A1C. T. 217-28, 240-41, 393-407.

On May 29, 2007, he reported that his blood sugar was between 290 and 300, he ate a lot of junk food, and weighed 221 pounds. Plaintiff's physical and mental examinations were unremarkable, and Dr. Shirpa Simlote diagnosed Plaintiff with uncontrolled diabetes mellitus. Although Plaintiff was advised to monitor his diet and lose weight, he refused diabetes education and weight management program referral. T. 321, 325. Dr. Simolte adjusted Plaintiff's insulin dosage and prescribed lisinopril for hypertension. T. 321.

The following month, Plaintiff was prescribed metformin, and was advised to monitor his diet and exercise as tolerated. T. 322. Dr. Simlote noted that Plaintiff reported low back strain with no injury, and prescribed warm compresses and Tylenol. T. 323.

Plaintiff's diabetes medications were reviewed and adjusted periodically. T. ...

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