United States District Court, W.D. New York
HUGH B. SCOTT UNITED STATES MAGISTRATE JUDGE
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.
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).
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.
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.
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].
AND VOCATIONAL EVIDENCE
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.
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).
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].
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, ...