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Packard v. Berryhill

United States District Court, W.D. New York

August 1, 2018

DONNA M. PACKARD Plaintiff,
v.
NANCY A. BERRYHILL, [1] Commissioner of Social Security, Defendant.

          LAW OFFICES OF KENNETH R. HILLER ATTORNEYS FOR PLAINTIFF IDA M. COMERFORD, OF COUNSEL

          JAMES P. KENNEDY, JR. UNITED STATES ATTORNEY ATTORNEY FOR DEFENDANT MARIA FRANGASSI SANTANGELO ASSISTANT UNITED STATES ATTORNEY, OF COUNSEL

          STEPHEN P. CONTE REGIONAL CHIEF COUNSEL UNITED STATES SOCIAL SECURITY ADMINISTRATION

          DECISION AND ORDER

          LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

         JURISDICTION

         On June 19, 2018, the parties consented, pursuant to 28 U.S.C. § 636(c) anda Standing Order (Dkt. No. 22), to proceed before the undersigned. (Dkt. No. 22-1). The court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on motions for judgment on the pleadings, filed on December 23, 2016, by Plaintiff (Dkt. No. 13), and on March 7, 2017, by Defendant (Dkt. No. 16).

         BACKGROUND

         Plaintiff Donna Packard, (“Plaintiff” or “Packard”), seeks review of Defendant's decision denying her Disability Insurance benefits and Supplemental Security Income (“SSI”) (“disability benefits”), under Title II and Title XVI of the Social Security Act (“the Act”). In denying Plaintiff's applications for disability benefits, Defendant determined that Plaintiff had Crohn's disease, asthma, and depression, sensorineural hearing loss, alcohol addiction and a disc abnormality that were not severe impairments, and that Plaintiff does not have an impairment or combination of impairments within the Act's definition of impairment. (R. 21-23).[2] Defendant further determined that Plaintiff had the residual functional capacity (“RFC”), to perform a full range of work at all levels of exertion, with limitations to no work in areas with unprotected heights, around heavy moving or dangerous machinery, exposure to excessive pulmonary irritants, and occasional limitations to maintaining concentration and attention for extended periods of time, responding appropriately to changes in the work setting and dealing with stress. (R. 24). As such, Plaintiff was found not disabled, as defined in the Act, at any time from Plaintiff's alleged onset date of January 1, 2012, through the date of the Administrative Law Judge's decision on May 14, 2015.

         PROCEDURAL HISTORY

         Plaintiff filed an application for disability benefits on January 9, 2013 (R. 386-92), that was initially denied by Defendant on March 15, 2013. On February 5, 2015, Plaintiff, represented by Elizabeth Huang, Esq. (“Huang”), appeared and testified at a hearing before Administrative Law Judge Robert T. Harvey (“Judge Harvey” or “the ALJ”), along with vocational expert (“VE”) David Cypher (“Cypher” or “VE”) in Buffalo, New York. (R. 43-79). The ALJ's decision denying Plaintiff's claim was rendered on May 14, 2015. (R. 19-31). 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 May 12, 2016. (R. 1-5). This action followed on July 11, 2016, with Plaintiff alleging that the ALJ erred by failing to find her disabled. (Dkt. No. 1).

         On December 23, 2016, Plaintiff filed a motion for judgment on the pleadings (“Plaintiff's motion”), accompanied by a memorandum of law (Dkt. No. 13) (“Plaintiff's Memorandum”). Defendant filed, on March 7, 2017, Defendant's motion for judgment on the pleadings (“Defendant's motion”), accompanied by a memorandum of law (Dkt. No. 16) (“Defendant's Memorandum”). Plaintiff filed a reply to Defendant's motion on the pleadings on April 27, 2017 (“Plaintiff's Reply Memorandum”) (Dkt. No. 21). Oral argument was deemed unnecessary. Based on the following, Plaintiff's motion for judgment on the pleadings is DENIED; Defendant's motion for judgment on the pleadings is GRANTED.

         FACTS[3]

         Plaintiff was born on July 10, 1960, and alleges that she is unable to work as a result of depression, Crohn's disease, sensorineural (inner ear) hearing loss and asthma. (R. 199). Facts pertinent to the issues raised in Plaintiff's Memorandum include Plaintiff's visit on March 5, 2013, to Maria Nickolova, M.D. (“Dr. Nickolova”), who completed an initial psychiatric evaluation of Plaintiff noting Plaintiff reported anxiety without panic attacks, decreased concentration and energy, poor memory, sleep and appetite, with infrequent attacks of symptoms. (R. 416). Dr. Nickolova evaluated Plaintiff with a cooperative mood, with affect appropriate to depression, coherent thought processes, fair attention span and concentration, intact memory, judgment and insight, diagnosed Plaintiff with major depressive disorder recurrent moderate (R. 418), and continued to provide psychotherapy treatment to Plaintiff and evaluate Plaintiff with similar results on April 10, 2013 (R. 419-21), May 10, 2013 (R. 423-25), July 9, 2013 (R. 430-32), October 28, 2013 (R. 434-36), December 4, 2013 (R. 438-40), January 28, 2014 (R. 442-44), February 25, 2014 (R. 446-48), March 25, 2014 (R. 450-52), May 29, 2014 (R. 454-56), June 26, 2014 (R. 458-60), September 2, 2014 (R. 462-64), and December 2, 2014 (R. 466-68).

         On June 13, 2013, to M.W. Wood, M.D. (“Dr. Wood”), who upon completing a physical examination, diagnosed Plaintiff with non-specific colitis, likely Crohn's disease. (R. 514).

         On July 10, 2013, Donna Miller, D.O. (“Dr. Miller”), completed a consultative internal medical examination on Plaintiff noting Plaintiff's reported activities of daily living included daily laundry, weekly cleaning, and hobbies that include watching television, listening to the radio and reading. (R. 380). Upon administering a pulmonary function spirometry test (R. 383-87), Dr. Miller noted that Plaintiff should avoid exposure to dust, irritants, and tobacco which may exacerbate Plaintiff's asthma. (R. 382). That same day, Kevin Duffy, Ph.D., (“Dr. Duffy”), completed a consultative psychiatric evaluation of Plaintiff and opined that Plaintiff had a mild impairment to attention and concentration, grossly intact memory skills, average cognitive functioning, fair insight and judgment (R. 376), the ability to follow and understand simple directions and instructions, perform simple tasks independently, maintain a regular schedule, make appropriate decisions, relate adequately with others, deal appropriately with stress and a mild difficulty learning new tasks. (R. 377).

         On February 27, 2014, Dr. Wood evaluated Plaintiff at the request of Plaintiff's primary physician Jennifer Corliss, M.D. (“Dr. Corliss”), and noted that Plaintiff was feeling well except for an episode of gastric symptoms after eating processed food and that Plaintiff was stable on her medication. (R. 520-21). On January 13, 2015, Dr. Wood noted that Plaintiff reported frequent episodes of loose stool and opined that Plaintiff's intermittent symptoms were likely the result of inflammatory bowel disease (“IBS”) and dietary issues, that Plaintiff's lower left quadrant pain was a likely result of Plaintiff's menstrual cycle, and that Plaintiff had no definite small bowel disease. (R. 522-24).

         On January 21, 2015, Dr. Nickolova completed a psychiatric residual functional questionnaire on Plaintiff and opined that Plaintiff was unable to complete a normal workweek without interruptions from psychologically-based symptoms, respond appropriately to changes in a routine work setting, deal with normal work stress (R. 473), and stress of semi-skilled and skilled work as a result of stress (R. 474), or engage in full-time competitive employment. (R. 476).

         On January 28, 2015, Dr. Wood completed a Crohn's and colitis residual functional capacity questionnaire and evaluated Plaintiff with symptoms of diarrhea, abdominal pain and cramping, intermittent exacerbations sometimes precipitated by stress, noted that Plaintiff's symptoms interfere with her attention and concentration, that Plaintiff would require a job with ready access to a restroom, require frequent unscheduled restroom breaks during an eight-hour workday with the ability to lie down at unpredictable intervals and that Plaintiff's bowel disease was not severe but a potential contributing factor to Plaintiff's psychological issues. (R. 524-30).

         1. Disability Determination Under the ...


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