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Crosby v. Berryhill

United States District Court, W.D. New York

July 18, 2017

JEFFREY CROSBY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, 1 Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE

         I. Introduction

         Plaintiff Jeffrey Crosby (“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.

         II. Procedural History

         On December 4, 2012, plaintiff filed an application for DIB, alleging disability as of August 31, 2012. Administrative Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of Social Security on January 23, 2017. The Clerk of the Court is instructed to amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d) to reflect the substitution of Acting Commissioner Berryhill as the defendant in this matter.

         Transcript (“T.”) 109-10. Following the denial of his application, a hearing was held at plaintiff's request on August 20, 2014, before administrative law judge ("ALJ") Connor O'Brien, at which testimony was given by plaintiff and a vocational expert. T. 37-74. The ALJ issued a decision dated November 26, 2014, in which she determined that plaintiff was not disabled as defined in the Act. T. 17-33. The ALJ's decision became the final determination of the Commission on March 15, 2016, when the Appeals Council denied plaintiff's request for review. T. 1-5. Plaintiff subsequently filed the instant action.

         III. The ALJ's Decision

         Initially, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2017. T. 22. At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ determined that plaintiff had not engaged in substantial gainful activity since August 31, 2012, the alleged onset date. Id. At step two, the ALJ found that plaintiff suffered from the severe impairments of degenerative disc disease of the lumbar spine, Schatzki's ring, depressive disorder, and anxiety disorder. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any listed impairment. T. 23-25.

         Before proceeding to step four, the ALJ determined that, considering all of plaintiff's impairments, plaintiff retained the RFC to “perform light work as defined in 20 CFR 404.1567(b)” with the following limitations: sitting for a total of four hours in an eight-hour workday; standing for a total of four hours in an eight-hour workday; never climbing ropes, ladders, or scaffolds; never balancing on narrow, slippery, or moving surfaces; never bending to the floor; occasionally crouching, climbing stairs, kneeling, and crawling; performing only unskilled work; requiring a sit/stand option that allows for a position change every 45 minutes for up to five minutes without leaving the workstation; not maintaining an hourly, machine-driven, assembly line production rate; and requiring up to three short, unscheduled, less than five-minute breaks in addition to the regularly scheduled breaks. T. 25. At step four, the ALJ found that plaintiff was unable to perform any past relevant work. T. 31. At step five, the ALJ concluded that, considering plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that plaintiff can perform. T. 32. Accordingly, the ALJ found plaintiff not disabled.

         IV. Discussion

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         A. The ALJ Properly Accounted for Plaintiff's Right Shoulder Tendinopathy

         Plaintiff contends that the Commissioner's decision was not supported by substantial evidence because the ALJ failed to account for his impairment of right shoulder tendinopathy in her RFC determination. In support of this contention, plaintiff argues that (1) the ALJ should have included limitations based on this impairment in her RFC determination and (2) additional evidence submitted to the Appeals Council compelled the conclusion that the impairment was severe. These arguments are unavailing.

         The medical evidence of record shows that plaintiff first complained of right shoulder pain in March 2014, a little over a year and a half after his alleged disability onset date. T. 347. On March 20, 2014, plaintiff was seen by Dr. Jennifer Kessler and reported a two week history of right shoulder pain. T. 443. Dr. Kessler assessed plaintiff with shoulder tendonitis and instructed him to avoid lifting weights “for at least a few weeks” and to use ice and tylenol for pain relief. Id. Dr. Kessler informed plaintiff that his tendonitis would resolve on its own with “time and rest.” Id. Plaintiff reported to an urgent care clinic on April 9, 2014, and noted that his pain had “minimally improved” since being seen three weeks earlier. Id. Plaintiff had a full range of motion in his right shoulder, but had significant pain with active and passive abduction past 90 degrees. T. 348. He was referred to physical therapy, and instructed to take tylenol for pain. T. 347-48. Plaintiff underwent physical therapy (see T. 330-37), which improved his pain to 3-4 out of 10 with no deep shoulder pain. T. 332. Plaintiff was seen on June 20, 2014, and on physical examination had no postural or anatomic abnormalities, was non-tender to palpitation, and had intact and symmetric strength in his upper extremities. T. 362. Plaintiff showed “some pain” with right shoulder abduction greater than 90 degrees and with external rotation of the arm. T. 362-63. He was referred to an orthopedist for possible steroid injections and instructed to continue conservative measures in the interim (rest, no heavy lifting/exacerbating movements, tylenol ...


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