United States District Court, W.D. New York
QUENTIN D. MCNEILL, Plaintiff,
NANCY A. BERRYHILL, Commissioner of Social Security, Defendant.
APPEARANCES: LAW OFFICES OF KENNETH A. HILLER Attorneys for
Plaintiff TIMOTHY HILLER,
P. KENNEDY ACTING UNITED STATES ATTORNEY Attorney for
Defendant, MARIA PIA FRAGASSI SANTANGELO, Assistant United
LOCKSHIN United States Social Security Administration
REPORT AND RECOMMENDATION
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE
action was referred to the undersigned by Honorable Richard
J. Arcara on December 10, 2015. (Doc. No. 11). On January 12,
2018, the matter was reassigned to Honorable Michael A.
Telesca. (Doc. No. 14). The matter is presently before the
court on motions for judgment on the pleadings, filed on
December 9, 2015, by Plaintiff (Doc. No. 10), and on February
8, 2016, by Defendant (Doc. No. 12).
Quentin McNeill (“Plaintiff” or
“McNeill”), seeks review of Defendant's
decision denying him Disability Insurance Benefits
(“DIB”) (“disability benefits”)
under, Title II and Title XVI of the Social Security Act
(“the Act”). In denying Plaintiff's
application for disability benefits, Defendant determined
that Plaintiff had a severe impairment of right arm gunshot
wound (R. 19), but did not have an impairment or combination
of impairments within the Act's definition of impairment.
(R. 20).2Defendant further determined that Plaintiff had the
residual functional capacity to perform the full range of
light work. (R. 20). As such, Plaintiff was found not
disabled, as defined in the Act, at any time from the alleged
onset date through the date of the Administrative Law
Judge's decision on December 18, 2013. (R. 17-25).
filed his application for disability benefits on February 1,
2012 (R. 224), alleging disability based on a head injury,
spinal injury and right arm injury. (R. 168). Plaintiff's
application was initially denied by Defendant, and pursuant
to Plaintiff's request filed on July 30, 2012 (R. 82-83),
a hearing was held before Administrative Law Timothy J. Trost
(“Trost” or “the ALJ”), on August 21,
2013, in Buffalo, New York. (R. 34-54). Plaintiff,
represented by Kenneth Lore, Esq. (“Lore”),
appeared and testified at the hearing. The ALJ's decision
denying the claim was rendered on December 18, 2013. (R.
requested review by the Appeals Council, and the ALJ's
decision became Defendant's final decision when the
Appeals Council denied Plaintiff's request for review on
April 8, 2015. (R. 1-4).
action followed on June 5, 2015, with Plaintiff alleging that
the ALJ erred by failing to find him disabled. (Doc. No. 1).
December 9, 2015, Plaintiff filed a motion for judgment on
the pleadings (“Plaintiff's motion”),
accompanied by a memorandum of law (Doc. No. 10)
(“Plaintiff's Memorandum”). On February 8,
2016, Defendant filed Defendant's motion for judgment on
the pleadings (“Defendant's motion”),
accompanied by a memorandum of law (Doc. No. 12)
(“Defendant's Memorandum”). On February 29,
2016, Plaintiff filed Plaintiff's Reply Memorandum of Law
(Doc. No. 13) (“Plaintiff's Reply”). Oral
argument was deemed unnecessary. Based on the following,
Plaintiff's motion for remand should be DENIED.
was born on March 20, 1985, completed high school, lives with
his three young children, and worked most recently as a
telephone collection agent until February 28, 2009 (R. 168),
when Plaintiff stopped working as a result of Plaintiff's
impairments. (R. 168). Plaintiff alleges that he is not able
to work because he suffers from head and spinal injuries as
well as from a right arm gunshot wound injury. (R. 168).
to the period of disability under review in this case, on
September 4, 2011, Plaintiff was admitted to the emergency
room at Erie County Medical Center (“ECMC”), in
Buffalo, New York for a gunshot wound to Plaintiff's
right arm. (R. 294). Thomas R. Duquin, M.D. (“Dr.
Duquin”), completed open reduction and fixation surgery
on fractures to Plaintiff's right arm ulna and radius,
and noted upon discharge that Plaintiff should not bear any
weight on Plaintiff's right arm for at least four to six
weeks. (R. 292).
September 16, 2011, Dr. Duquin completed a follow-up
examination on Plaintiff and noted that Plaintiff reported
continued right arm pain, and stiffness of his wrist and
hand. (R. 357). Upon examination, Plaintiff exhibited 3/5 for
grip strength, finger extension and abduction, good elbow
range of motion (“ROM”) with flexion, and stiffness
in Plaintiff's elbow during extension of 30 degrees, with
10 to 15 degrees of supination (rotation of forearm) and
pronation in each direction with discomfort and pain. Dr.
Duquin attached a long arm cast to Plaintiff's right arm,
and instructed Plaintiff to keep his arm elevated. (R. 357).
During a follow-up examination with Dr. Duquin on October 6,
2011, Plaintiff reported improved pain with discomfort, and
no weakness or motor deficits. Upon examination, Dr. Duquin
evaluated Plaintiff with good ROM of Plaintiff's elbow,
wrist and hand, limited supination of 15 degrees and
pronation measured at 45 degrees, intact radial and ulnar
nerve function, decreased strength in relation to forearm
pain, intact sensation to touch, with decreased sensation,
and tingling and paresthesias (numbness) in Plaintiff's
radial nerve distribution. (R. 359).
October 31, 2011, Plaintiff returned to Dr. Duquin for a
follow-up examination and reported decreased swelling and
improved ROM. Dr. Duquin reviewed an X-ray completed the same
day that revealed a well-aligned surgical repair to
Plaintiff's radius and ulna with healing, persistent
defect of both fractures, with no evidence of loose hardware,
and evaluated Plaintiff with ROM measured at 30 degrees upon
extension and 130 degrees upon flexion, supination measured
at 50 degrees, with pronation measured at 70- degrees, good
ROM of Plaintiff's wrist and hand and intact sensation to
touch. (R. 361). Dr. Duquin instructed Plaintiff to avoid
lifting more than 1 pound with his right arm, and instructed
Plaintiff to continue his prescribed ROM exercises, and avoid
using his arm. Id.
November 11, 2011, Dr. Duquin noted that Plaintiff reported
increased pain upon rolling his arm and that Plaintiff
reported a “clicking” sound when Plaintiff rolled
onto his arm while sleeping with increased pain. An X-ray
taken the same day showed no displacement to Plaintiff's
fracture repair. (R. 363).
December 2, 2011, Dr. Duquin noted that Plaintiff reported
that he was completing his ROM exercises, and that Plaintiff
denied numbness, tingling, and neurologic deficits. Upon
examination, Dr. Duquin evaluated Plaintiff with elbow
extension measured at 10 degrees, flexion measured at 135
degrees, and pronation at 70 degrees with intact sensation.
(R. 364). Dr. Duquin noted that although Plaintiff's
radius was healing well, Plaintiff's ulna showed signs of
non-union of the ulnar shaft with persistent defect with no
evidence of significant interposing bone, and recommended
that Plaintiff undergo bone grafting surgery within two to
three months time. Id.
March 7, 2012, Plaintiff underwent iliac bone graft surgery
of Plaintiff's ulna to correct the non-union from
Plaintiff's September 4, 2011 surgery. (R. 367). An X-ray
of Plaintiff's right forearm on March 16, 2012, showed
multiple fragments of bullets projected over Plaintiff's
distal radius, ulna and soft tissue. (R. 354). During a
follow-up examination on March 16, 2012, Dr. Duquin noted
that Plaintiff reported continued pain, and that
Plaintiff's X-rays showed a well-aligned plate and bone
graft. (R. 367).
April 11, 2012, an X-ray of Plaintiff's right arm showed
progress of bony union of Plaintiff's fracture and