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McNeill v. Berryhill

United States District Court, W.D. New York

January 18, 2018

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


          JAMES P. KENNEDY ACTING UNITED STATES ATTORNEY Attorney for Defendant, MARIA PIA FRAGASSI SANTANGELO, Assistant United States Attorney,

          AMANDA LOCKSHIN United States Social Security Administration




         This 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).


         Plaintiff 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).


         Plaintiff 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. 17-25).

         Plaintiff 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).

         This action followed on June 5, 2015, with Plaintiff alleging that the ALJ erred by failing to find him disabled. (Doc. No. 1).

         On 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.


         Plaintiff 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).

         Relative 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).

         On 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”)[3] 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).

         On 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.

         On 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).

         On 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.

         On 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).

         On April 11, 2012, an X-ray of Plaintiff's right arm showed progress of bony union of Plaintiff's fracture and ...

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