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Forbes v. Colvin

United States District Court, W.D. New York

July 20, 2015

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


MICHAEL A. TELESCA, District Judge.


Richard Emmanuel Forbes, ("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 application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). 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. ##10, 12.


Plaintiff filed applications for DIB and SSI on June 11, 2010, alleging he was unable to work beginning October 25, 2007 due to back pain and hernia. T. 124-32, 150. His applications were initially denied, and a hearing was requested before an Administrative Law Judge ("ALJ"). T. 66-81, 82-83. Plaintiff appeared with his attorney before ALJ William E. Straub in Buffalo, New York, on December 8, 2011. T. 24-55.

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 the alleged onset date; (2) he had the severe impairments of degenerative changes of the lumbar spine with low back pain, headaches, and right ankle pain post calcaneal fracture; (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 perform light work; (4) Plaintiff could not perform any past relevant work; and (5) Plaintiff was not disabled as he was capable of making an adjustment to other work in the national economy. T. 11-19.

The ALJ's unfavorable determination was issued on January 10, 2012, and became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on January 10, 2013. T. 1-3. This action followed. Dkt.#1.

The Commissioner now moves for judgment on the pleadings asserting that the ALJ's decision was supported by substantial evidence and should be affirmed. Comm'r Mem. (Dkt.#10-1) 10-12. Plaintiff has filed a cross-motion alleging that the ALJ failed to develop the record regarding Plaintiff's back pain, improperly weighed the opinion of a consultative examiner, and mischaracterized the evidence. Pl. Mem. (Dkt. #12-1) 8-20.


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

In February, 2008, Plaintiff saw his treating physician at Lifetime Health ("Lifetime") for a right inguinal hernia that he had for "some time." T. 214. He stated that he was afraid to have surgery. Id.

He returned to Lifetime in June, 2010 for complaints of back pain. T. 211. He reported that it began two years prior and was of moderate severity and was worsening. Id. He described it as stabbing and persistent. Id. Location was upper and lower back, without radiating pain. Id. Symptoms were relieved by lying down and topical ointment. Examination revealed tenderness in the lumbar spine and no pain with motion. T. 212. Plaintiff was assessed with backache, NOS, chronic, and was prescribed physical therapy and Motrin. Id.

Two months later, Plaintiff returned for a physical examination, which was unremarkable. The doctor noted a history of back pain due to manual labor, and that Plaintiff was going to physical therapy twice per week. T. 205.

In September, 2010, Plaintiff visited Lifetime for dizziness/lightheadedness, aggravated by bike riding and diminished on its own by sitting down. T. 250. He reported associated symptoms of headache, neck stiffness, slurred speech, weakness, and right arm numbness. T. 250. Brain imaging was ordered and reviewed the following ...

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