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Fagner v. Berryhill

United States District Court, W.D. New York

May 30, 2017

NANCY A. BERRYHILL, Acting Commissioner of Social Security, [1] Defendant.



         Plaintiff 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.


         On 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.

         In 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.

         The 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.


         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). 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).

         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). 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).

         A. Summary of relevant medical evidence.

         Plaintiff's 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. Id.

         Plaintiff 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. T. 302.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         Plaintiff 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.

         On 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.

         On 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.

         Plaintiff 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 gabapentin. Id.

         On June 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 ...

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