United States District Court, W.D. New York
JEFFREY S. FAGNER, Plaintiff,
NANCY A. BERRYHILL, Acting Commissioner of Social Security,  Defendant.
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
Jeffrey S. Fagner (“plaintiff”) brings this
action pursuant to Title II of the Social Security Act (the
“Act”), seeking review of the final decision of
the Commissioner of Social Security (“defendant”
or “the Commissioner”) denying his application
for social security disability insurance benefits
(“DIB”). Presently before the Court are the
parties' competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons set forth below, plaintiff's
motion is denied and defendant's motion is granted.
December 12, 2011, plaintiff filed an application for DIB,
alleging disability as of September 23, 2010. Administrative
Transcript (“T.”) 135-41. Following the denial of
his application, a hearing was held at plaintiff's
request on April 20, 2012, before administrative law judge
("ALJ") William M. Manico, at which testimony was
given by plaintiff and a vocational expert
(“VE”). T. 34-62. The ALJ issued a decision dated
December 26, 2012, in which he determined that plaintiff was
not disabled as defined in the Act. T. 9-28.
applying the required 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, 2008 WL 3413899, at *2 (W.D.N.Y.
2008) (detailing the five steps)), the ALJ made the following
findings, among others: (1) plaintiff met the insured status
requirements of the Act through December 31, 2016; (2)
plaintiff had not engaged in substantial gainful activity
since September 23, 2010; (3) plaintiff's degenerative
disc disease of the cervical spine and lumbar spine and mild
tendinopathy of the left shoulder/adhesive capsulitis status
post-surgery were severe impairments; (4) plaintiff's
impairments did not meet or medically equal one of the listed
impairments set forth in 20 C.F.R. § 404, Subpart P,
Appendix 1; (5) plaintiff had the residual functional
capacity (“RFC”) to “perform sedentary work
as defined in 20 CFR 404.1567(a)” with the following
limitations: occasional balancing, climbing, stooping,
crouching, kneeling, and crawling; alternate sitting and
standing every 20 to 25 minutes; never reach overhead with
the left upper extremity; use a cane to ambulate; avoid
moderate exposure to extremes of cold, heat, wetness, or
humidity; avoid all exposure to hazards; perform unskilled
work involving simple instructions; regular work breaks
approximately every 2 hours; (6) plaintiff was unable to
perform any past relevant work; and (7) considering
plaintiff's age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the
national economy that plaintiff could perform.
ALJ's decision became the final determination of the
Commission on August 6, 2014, when the Appeals Council denied
plaintiff's request for review. T. 1-6. Plaintiff
subsequently filed the instant action.
General Legal Principles
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). This
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. 42 U.S.C.
§ 405(g). “Substantial evidence means more than a
mere scintilla. It means such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion.” Moran v. Astrue, 569 F.3d 108,
112 (2d Cir. 2009) (quotation omitted).
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). Section
405(g) limits the scope of the Court's review to two
inquiries: whether the Commissioner's findings were
supported by substantial evidence in the record as a whole
and whether the Commissioner's conclusions were based
upon the correct legal standard. See Green-Younger v.
Barnhart, 335 F.3d 99, 105-106 (2d Cir.2003).
Summary of relevant medical evidence.
primary care physician is Dr. Kristina Cummings. On February
6, 2009, plaintiff saw Dr. Cummings at the recommendation of
his therapist. T. 310. Plaintiff reported feeling very
depressed and noted that he had been drinking heavily, but
had stopped since January 1st. Id. On physical
examination, plaintiff showed a flat affect, but was
otherwise unremarkable. Id. Dr. Cummings assessed
plaintiff with depression and prescribed Cymbalta.
followed up with Dr. Cummings regarding his depression on
March 18, May 7, July 2, and July 30. T. 306-209. On November
12, 2009, Plaintiff was seen by Dr. Cummings and reported
having “crashed mentally” five days prior. T.
301. He stated that his job was in jeopardy from having
missed so many days and reported “momentary”
thoughts of self-harm. Id. Dr. Cummings assessed
plaintiff with major depression with an acute episode.
Id. She made him an appointment the following day
with a social worker and encouraged him to stay with a
friend. Id. Dr. Cummings wrote plaintiff a note to
be out of work from November 6th to the
23rd so that he could work on his mental health.
returned to Dr. Cummings on November 23, 2009, and reported
that he was feeling better with his depression, but that his
work was very stressful and exacerbating his mental health
concerns. T. 300. Apart from flat affect, plaintiff's
physical examination was unremarkable. Id.
attended inpatient rehabilitation for alcohol, cocaine, and
marijuana dependence from December 16, 2009, to January 6,
2010. T. 202-40. On discharge, plaintiff was assessed with
alcohol dependence, cannabis dependence, cocaine dependence,
nicotine dependence, major depression with anxiety,
personality disorder NOS, and GERD. T. 202. Plaintiff had a
GAF score of 34. Id. Plaintiff's prognosis was
fair. T. 207.
saw Dr. Cummings on January 21, 2010, to follow up after his
inpatient rehabilitation. T. 298. Plaintiff reported that he
had begun having pain in his left hip, radiating down his
left buttocks and into his leg. Id. Plaintiff stated
that sitting and driving hurt and that standing and laying
down helped. Id.
reported having been diagnosed with an enlarged disc in his
back in 2002. Id. Dr. Cummings assessed plaintiff
with left sciatica with possible disc disease. Id.
She instructed him to take ibuprofen for 7-10 days, and then
on an as-needed basis, and to stretch and place warm
compresses on the area. Id.
February 25, 2010, plaintiff returned to Dr. Cummings,
complaining of left wrist pain. T. 296. Plaintiff reported
that he had been working out at home, doing sit-ups,
pull-ups, and lifting weights. Id. Plaintiff told
Dr. Cummings that his lower back was still bothering him and
that ibuprofen did not help the pain. Id. Dr.
Cummings assessed plaintiff with left wrist pain and
sciatica. T. 297.
March 5, 2010, a magnetic resonance imaging study
(“MRI”) of plaintiff's lumbar spine revealed
mild disc bulging at ¶ 4-5 and L5-S1, but no significant
herniation. T. 318-19.
followed up with Dr. Cummings on March 25, 2010. T. 294. He
continued to report nerve pain. Id. On physical
examination, he had tenderness in the lower spine and showed
discomfort with flexion, abduction of the hip, and straight
leg lift, though he was able to complete all of them.
Id. Dr. Cummings prescribed Lortab, diclofenac, and
15, 2010, plaintiff began treating with pain management
specialist Dr. Ashraf Sabahat. T. 364-65. On physical
examination, plaintiff exhibited significant tenderness with
deep palpitation over his right sacroiliac joint and no
tenderness with deep palpitation over the left sacroiliac
joint. T. 364. Straight left raise tests were negative and
plaintiff did not demonstrate any weakness in any other
muscle groups in his lower extremities. Id. Dr.
Sabahat noted that the severity of the symptoms reported by
plaintiff did not ...