Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Cawley v. Berryhill

United States District Court, S.D. New York

August 2, 2018

JOHN CAWLEY, Plaintiff,
v.
NANCY BERRYHILL, ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, Defendant.

          MEMORANDUM AND ORDER

          KEVIN NATHANIEL FOX UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         John Cawley ("Cawley") commenced this action against the acting Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated February 26, 2016, finding him ineligible for disability insurance benefits, pursuant to Title II of the Social Security Act, 42 U.S.C. §§ 401-434. Before the Court are: (a) the plaintiffs motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure[1]; and (b) the defendant's motion for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

         ALJ'S DECISION

         Cawley alleged disability beginning December 17, 2013. An administrative hearing was held, on February 2, 2016, at which Cawley, represented by counsel, and a vocational expert testified. The issue before the ALJ was whether Cawley is disabled. The ALJ determined that Cawley: (1) meets the insured status requirements of the Social Security Act through December 31, 2018; (2) has not engaged in substantial gainful activity since December 17, 2013; (3) "has the following severe impairment: degenerative disc disease and herniation of the cervical spine with distant history of fusion a[t] the C5 to C6 level; bilateral shoulder tendinosis with impingement, particle tear, and status post left shoulder arthroscopy May 2014; degenerative disc disease and disc bulges of the lumbosacral spine and right knee derangement; right carpal tunnel syndrome and trigger finger status-post [A]ugust 2014 surgical release; and, left carpal tunnel syndrome status-post October 2014 surgical release"; (4) does not have an impairment or combination of impairments that meets or medially equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the residual functional capacity to perform light work and "can lift and carry 20 pounds occasionally and 10 pounds frequently," "can sit or stand and walk for six hours each in an eight-hour day," "[i]f seated," "requires the opportunity to stand for a minute or two at 30 minutes intervals," "can frequently handle bilaterally but only occasionally feel and finger with the left non-dominant hand," and "can occasionally reach overhead, climb stairs, and kneel"; (6) is unable to perform any past relevant work; (7) was 49 years old; and (8) has at least a high school education and is able to communicate in English. The ALJ found that transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Cawley is not disabled, regardless of the transferable job skills. The vocational expert testified that an individual with Cawley's residual functional limitations would be able to perform the requirements of representative occupations, such as bench assembler and rental clerk. The ALJ found that the vocational expert's testimony is consistent with the information contained in the Dictionary of Occupational Titles ("DOT"). Based on the vocational expert's testimony, the ALJ concluded that Cawley is capable of making a successful adjustment to other work that exists in significant numbers in the national economy. Considering Cawley's age, education, work experience and residual functional capacity, the ALJ found that jobs exist in significant numbers in the national economy that Cawley can perform. The ALJ determined that Cawley has not been disabled from December 17, 2013, through the date of the ALJ's decision.

         In determining whether Cawley has an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments, the ALJ found that Cawley's severe impairments

do not meet any of the [Listings 1.02, 1.03, 1.04(A), 1.04(B) or 1.04(C)] thresholds as there is insufficient evidence any of these conditions, considered singly or in combination, causes sensory or reflex loss, manifests as spinal arachnoiditis, or creates chronic nonradicular pain accompanied by an inability to ambulate effectively, or results in the inability to independently carry out activities of daily living.

         In assessing the medical evidence, the ALJ gave "some weight" to an opinion by Dr. Julio V. Westerband, made for the purpose of a worker's compensation assessment, "as it is generally consistent with the objective findings and the claimant's activities of daily living," but fails to "state specific restrictions in overhead activities or prolonged standing or sitting." The ALJ considered the "completed check-off reports in June 2014" by Cawley's treating orthopedic surgeon, Dr. Michael Cushner ("Dr. Cushner"), in which Dr. Cushner remarked that Cawley was "limited lifting and carrying up to a maximum of five pounds on an occasional basis, standing and walking less than two hours per day, sitting less than six hours per day, and unspecified limitations on pushing and pulling." In support of these limitations, Dr. Cushner indicated: "see attached" notes. The ALJ gave "limited weight" to Dr. Cushner's opinion,

as it is unsupported by specific clinical findings and such extreme limits are not apparent from the clinical findings in the attached notes which describe the claimant as having normal range of motion of the neck, shoulder, elbows, wrist, lower back, and bilateral knees accompanied by only some minimal deficits, tenderness, and subjective pain (4F/10). Moreover, the extreme limits are contradicted by the claimant's admitted activities of daily living, as well as, the repeated evidence of record showing that the claimant was in no acute physical distress and otherwise presented with normal range of motion throughout his various areas with full muscle strength and grossly normal gait (9F, 10F, 11F, 12F, 14F, 15F, 16F, 18F, 19F[.] Therefore, his opinion is given highly limited weight in this decision.

         PLAINTIFF'S CONTENTIONS

         Cawley contends that the ALJ used an "improper legal standard or inadequate analysis at Step 3" of the sequential analysis of his claim because: (1) the ALJ's decision is "void of a discussion of considerations as to whether Mr. Crawley's combined impairments equal any listing(s)"; and (2) "the ALJ should have obtained medical expert testimony in order to ascertain whether the combination of Mr. Cawley's impairments equaled any listing(s)." For example, the ALJ should have considered whether Cawley's conditions equaled Listing 1.02B, which requires "[i]nvolvement of one major peripheral joint in each upper extremity (i.e., shoulder, elbow, or wrist-hand), resulting in inability to perform fine and gross movements effectively, as defined in 1 .OOB2b." Cawley asserts that the ALJ acknowledged that he has severe impairments, including "bilateral shoulder ten[d]inosis with impingement, partial tear, and status post left shoulder arthroscopy May 2014, as well as right carpal tunnel syndrome status-post October 2014 surgical release," but failed to obtain medical expert testimony to ascertain whether the combination of Cawley's "bilateral shoulder and bilateral wrist impairments equaled Listing 1.02." The ALJ should have also considered whether Cawley's combined impairments equaled Listing 1.04A, which requires "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)." Cawley maintains that a magnetic resonance imaging ("MRI") of the cervical spine revealed numerous pathologies, including "bilateral severe C8 nerve root impression," which the ALJ did not mention in her decision. Moreover, the record documents limited range of motion, weakness, atrophy, sensory loss, "Babinski and Clonus Reflexes" absent bilaterally and mildly positive straight leg raise.

         Cawley contends that the ALJ failed to accord proper weight to Dr. Cushner's opinion, which should have been given "greatest, if not controlling weight." Cawley asserts that Dr. Cushner treated him and examined him 19 times, since May 12, 2014, referred him for an MRI of the cervical spine, interpreted the MRI of the lumbar spine and reviewed the MRI of his left shoulder performed on October 30, 2015, as well as diagnostic testing performed prior to the alleged onset date. Cawley asserts that Dr. Cushner's opinion is well-supported by the diagnostic evidence, such as the MRI of the cervical spine and the MRI of the lumbar spine and the three operative reports. Moreover, Dr. Cushner's opinion is consistent with the diagnostic and clinical evidence in the record.

         Cawley asserts that the ALJ's decision is not supported by substantial evidence because the ALJ determined that the vocational expert's testimony is consistent with the information in the DOT, which is inaccurate. The DOT indicates that "work as bench assembler requires frequent reaching," which is inconsistent with the ALJ's residual functional capacity limitations findings of "occasionally, feel and finger with the left non-dominant hand" and "occasionally reach overhead." The ALJ relied on the vocational expert's testimony without acknowledging or explaining this conflict. Thus, the ALJ failed to meet her burden at Step 5 of the sequential analysis.

         DEFENDANT'S ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.