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Gibbs v. Commissioner of Social Security

United States District Court, W.D. New York

January 7, 2020

KEITH GIBBS, Plaintiff,



         Before the Court are the parties' respective motions for judgment on the pleadings (Docket Nos. 8 (plaintiff), 15 (defendant Commissioner)). Having considered the Administrative Record, filed as Docket No. 6 (references noted as “[R. ]”), and the papers of both sides, this Court reaches the following decision.


         This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security that plaintiff is not disabled and, therefore, is not entitled to disability insurance benefits and/or Supplemental Security Income benefits. The parties consented to proceed before a Magistrate Judge (Docket No. 16, reassignment Order of Oct. 4, 2019).


         The plaintiff (“Keith Gibbs” or “plaintiff”) filed an application for disability insurance benefits on August 7, 2014 [R. 25]. That application was denied initially. The plaintiff appeared before an Administrative Law Judge (“ALJ”), who considered the case de novo and concluded, in a written decision dated May 18, 2017, that the plaintiff was not disabled within the meaning of the Social Security Act. The ALJ's decision became the final decision of the Commissioner on August 21, 2018, when the Appeals Council denied plaintiff's request for review.

         Plaintiff commenced this action on October 16, 2018 (Docket No. 1). The parties moved for judgment on the pleadings (Docket Nos. 8, 15), and plaintiff duly replied (Docket No. 19). Upon further consideration, this Court then determined that the motions could be decided on the papers.


         Plaintiff, a 45-year-old with a limited education, last worked as a bus driver for the Niagara Frontier Transit Authority [R. 36, 931]. He contends that he was disabled as of the onset date of December 20, 2013, following a motor vehicle accident [R. 25, 931]. Plaintiff claims the following impairments deemed severe by the ALJ: degenerative disc disease in cervical, thoracic, and lumbar spine with disc herniation, status post cervical fusion with instrumentation; right shoulder rotator cuff tear and impingement syndrome, status post right rotator cuff repair, bilateral carpel tunnel syndrome, status post bilateral carpel tunnel releases, right cubital tunnel syndrome, and obesity [R. 27]. As for plaintiff's obesity, he is 6'1” tall, and weighed 228 pounds [R. 30, 33, 202, 933], 219 pounds at Oct. 6, 2014, consultative examination [R. 33, 35, 993] and had a body mass index (BMI) of 30.5 [R. 35].


         At issue is the consideration of the medical opinion of treating physician Dr. Michael Calabrese's opinions, specifically his opinion of February 22, 2017 [R. 1888-91], as contrasts earlier opinions. In chronological order, on February 15, 2016, Dr. Calabrese saw plaintiff as follow up from a December 2013 motor vehicle accident [R. 1265]. After summarizing prior diagnostic testing and other doctors' assessments [R. 1265-66, 1269-74] in a pattern repeated in subsequent notes, Dr. Calabrese noted limited range of motion in plaintiff's back with pain [R. 1267, 1268]. As for work restrictions, Dr. Calabrese stated that “at this time, the patient may return to sedentary work with the understanding that he has upcoming left arm surgery on 02/18/2016. Following this surgery that is unrelated to his No Fault case, the patient will be out of work” [R. 1275].

         On March 15, 2016 [R. 1254], plaintiff was seen by Dr. Calabrese for further follow up and stated that plaintiff's work restrictions were that he was “able to perform sedentary work with the understanding that he has just had left arm surgery, again, unrelated” to his motor vehicle accident case [R. 1264] (see also Docket No. 8, Pl. Memo. at 22; Docket No. 15, Def. Memo. at 8). On July 7, 2016 [R. 1218], plaintiff saw Dr. Calabrese and the doctor continued to find that he could perform sedentary work [R. 1228] (see Docket No. 15, Def. Memo. at 8). On August 18, 2016 [R. 1206], plaintiff saw Dr. Calabrese again and the doctor concluded as for work restrictions that plaintiff was “able to perform sedentary work” [R. 1217]. This work restriction was repeated on September 29, 2016 [R. 1205, 1194], November 7, 2016 [R. 1192, 1181], December 19, 2016 [R. 1179, 1168, 34], and January 30, 2017 [R. 1903, 1892] (see id. at 9, 10).

         The ALJ gave these findings partial weight, adopting the finding that plaintiff could perform sedentary work [R. 35]. The ALJ found these opinions were supported by plaintiff's combined physical impairments as a whole, his treatment history, and plaintiff's reported daily activities (such as preparing simple meals and tending to light housework) [R. 35-36]. More weight was not given because Dr. Calabrese did not offer further functional limitations and was “contradicted by his overly restrictive medical source statement just a few months later” [R. 36].

         On February 22, 2017, Dr. Calabrese issued that so-called overly restrictive medical source statement, a “Treating Source Statement-Physical Conditions” report [R. 1888, 35]. There, Dr. Calabrese diagnosed plaintiff with cervical disc herniation, thoracic disc herniation, lumbar disc herniation, left ankle/foot sprain or strain, right shoulder rotator cuff tear and impingement, right ulnar nerve neuropathy, and right cubital tunnel syndrome [R. 1888, 35]. The doctor found plaintiff would be off task for 25% of a typical work day [R. 1888] and would miss two days a month due to his impairments and treatment [R. 1888, 35]. He also found that plaintiff could occasionally lift and carry 10 pounds and frequently less than 10 pounds [R. 1889, 35]. Plaintiff could occasionally walk or stand and sit for eight hours in a workday and opined that plaintiff could never climb, balance, stoop, kneel, crouch, crawl, or be exposed to unprotected heights or moving mechanical parts, or operate a motor vehicle [R. 1889, 1890-91, 35]. Plaintiff could never reach overhead, reach generally, handle, finger, ...

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