LESLIE G. FOSCHIO, Magistrate Judge.
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).
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")
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 evidence of gunshot shrapnel. (R. 283).
On April 11, 2012, John West, M.D. ("Dr. West"), completed a follow-up evaluation on Plaintiff under the supervision of Dr. Duquin, noting that Plaintiff reported significant pain improved from the pervious visit, and evaluated Plaintiff with full ROM of his right elbow. (R. 368).
On May 23, 2012, Donna Miller, D.O. ("Dr. Miller"), a family medicine practitioner, completed an internal medical examination on Plaintiff on behalf of the Social Security Administration, and noted that Plaintiff reported right arm pain that rated 10 of 10 on a ten-point scale, and that Plaintiff was using a cane for weight bearing and balance. (R. 321). Dr. Miller assessed Plaintiff with cervical spine extension and flexion measured at 30 degrees, lumbar flexion measured at 30 degrees with 5 degrees upon extension, and 20 degrees bilaterally upon lateral extension, noting that Plaintiff declined ROM evaluation of his right elbow, shoulder and wrist as a result of his recent surgery (R. 322), diagnosed Plaintiff with chronic low back pain, right hip pain, and right upper extremity pain status post gunshot wound with surgery, and evaluated Plaintiff with moderate limitation for repetitive heavy lifting, pushing, pulling, and carrying with his right upper extremity, observing that Plaintiff recently underwent surgery and had not begun physical therapy. (R. 323).
On November 21, 2012, Seung Park, M.D. ("Dr. Park"), completed a consultative review of Plaintiff's medical records on behalf of the Social Security Administration, and opined that there was insufficient evidence to evaluate Plaintiff, but agreed with Dr. Miller's residual functional assessment of Plaintiff. (R. 338).
On July 31, 2013, Plaintiff visited UB Family Medicine in Buffalo, New York, where Fadie Amin, M.D. ("Dr. Amin") completed a new patient physical examination on Plaintiff and opined that Plaintiff reported a lesion on his right forearm and no joint pain. Upon examination, Dr. Amin evaluated Plaintiff with normal ROM and gait and station. (R. 351).
On August 14, 2013 (R. 371-72), August 29, 2013 (R. 380), and August 30, 2013 (R. 395), Plaintiff sought treatment from ECMC for right arm pain, and was prescribed Lortab and Motrin.
On August 20, 2013, Lawrence G. Rand, M.D. ("Dr. Rand"), reviewed an X-ray and opined a screw head protruded from Plaintiff's forearm four millimeters from Plaintiff's ulnar cortex, leading Dr. Rand to suspect that an ulnar screw from Plaintiff's previous surgery had dislodged into Plaintiff's right arm. (R. 401).
An individual is entitled to disability insurance benefits under the Social Security Act if the individual is unable
42 U.S.C. §§ 423(d)(1)(A) & (2)(A), and 1382c(a)(3)(A) & (C)(I).
Once a claimant proves he or she is severely impaired and unable to perform any past relevant work, the burden shifts to the Commissioner to prove there is alternative employment in the national economy suitable to the claimant. Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).
The standard of review for courts reviewing administrative findings regarding disability benefits, 42 U.S.C. §§ 401-34 and 1381-85, is whether the administrative law judge's findings are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires enough evidence that a reasonable person would "accept as adequate to support a conclusion." Consolidated Edison Co. v. National Labor Relations Board, 305 U.S. 197, 229 (1938).
When evaluating a claim, the Commissioner must consider "objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability (testified to by the claimant and others), and . . . educational background, age and work experience." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)). If the opinion of the treating physician is supported by medically acceptable techniques and results from frequent examinations, and the opinion supports the administrative record, the treating physician's opinion will be given controlling weight. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d).
The Commissioner's final determination will be affirmed, absent legal error, if it is supported by substantial evidence. Dumas, 712 F.2d at 1550; 42 U.S.C. §§ 405(g) and 1383(c)(3). "Congress has instructed . . . that the factual findings of the Secretary,
The applicable regulations set forth a five-step analysis the Commissioner must follow in determining eligibility for disability insurance benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v. Schweiker, 675 F.2d 464 (2d Cir. 1982). The first step is to determine whether the applicant is engaged in substantial gainful activity during the period for which benefits are claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in such activity the inquiry ceases and the claimant is not eligible for disability benefits. Id. The next step is to determine whether the applicant has a severe impairment which significantly limits the physical or mental ability to do basic work activities as defined in the applicable regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Absent an impairment, the applicant is not eligible for disability benefits. Id. Third, if there is an impairment and the impairment, or an equivalent, is listed in Appendix 1 of the regulations, and lasts or is expected to last at least 12 months, the individual is deemed disabled, regardless of the applicant's age, education or work experience, 20 C.F.R. §§ 404.1520(d) and 416.920(d), as, in such a case, there is a presumption the applicant with such an impairment is unable to perform substantial gainful activity.
However, as a fourth step, if the impairment or its equivalent is not listed in Appendix 1, the Commissioner must then consider the applicant's "residual functional capacity" and the demands of any past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If the applicant can still perform work he or she has done in the past, the applicant will be denied disability benefits. Id. Finally, if the applicant is unable to perform any past work, the Commissioner will consider the individual's "residual functional capacity," age, education and past work experience in order to determine whether the applicant can perform any alternative employment. 20 C.F.R. §§ 404.1520(f), 416.920(f). See also Berry, 675 F.2d at 467 (where impairment(s) are not among those listed, claimant must show that he is without "the residual functional capacity to perform [her] past work"). If the Commissioner finds that the applicant cannot perform any other work, the applicant is considered disabled and eligible for disability benefits. 20 C.F.R. §§ 404.1520(g), 416.920(g). The applicant bears the burden of proof as to the first four steps, while the Commissioner bears the burden of proof on the final step relating to other employment. Berry, 675 F2d at 467. In reviewing the administrative finding, the court must follow the five-step analysis to determine if there was substantial evidence on which the Commissioner based the decision. Richardson, 402 U.S. at 410.
The first inquiry is whether the applicant engaged in substantial gainful activity. "Substantial gainful activity" is defined as "work that involves doing significant and productive physical or mental duties" done for pay or profit. 20 C.F.R. § 404.1510(a)(b). Substantial work activity includes work activity that is done on a part-time basis even if it includes less responsibility or pay than work previously performed. 20 C.F.R. § 404.1572(a). Earnings may also determine engagement in substantial gainful activity. 20 C.F.R. § 404.1574. In the instant case, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since December 31, 2011, the date of Plaintiff's alleged onset of disability. (R. 19). Plaintiff does not contest this finding.
The second step of the analysis requires a determination whether Plaintiff had a severe medically determinable physical or mental impairment that meets the duration requirement in 20 C.F.R. § 404.1509 and significantly limits the Plaintiff's ability to do "basic work activities." The Act defines "basic work activities" as "abilities and aptitudes necessary to do most jobs," and includes physical functions like walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling; capacities for seeing, hearing, and speaking; understanding, carrying out, and remembering simple instructions; use of judgment; responding appropriately to supervision, co-workers and usual work situations; and dealing with changes in a routine work setting. 20 C.F.R. §§ 404.1521(b) ("§ 1521"), 416.921(b).
In this case, the ALJ determined that Plaintiff had the severe impairment of right arm gunshot wound as defined under 20 C.F.R. § 404.1520(c). Plaintiff does not contest this finding, or the ALJ's finding that Plaintiff's right arm impairment does not meet any of the listed impairments under step three of the disability review analysis.
In this case, the ALJ found that Plaintiff had the residual functional capacity to complete the full range of light work at all exertional levels. (R. 20).
"Light work" involves
20 C.F.R. § 404.1567(b).
Plaintiff contends that the ALJ erred by affording too much weight to Dr. Miller's residual functional capacity assessment of Plaintiff. Plaintiff's Memorandum at 13. In particular, Plaintiff contends that Dr. Miller's finding that Plaintiff had a moderate limitation to repetitive heavy lifting, pushing, pulling, and carrying with Plaintiff's right extremity, was too vague for the ALJ to rely on to establish Plaintiff's residual functional capacity assessment, relying on the rulings in Selian v. Astrue ("Selian") 708 F.3d 409, 421 (2d Cir. 2013), and Curry v. Apfel ("Curry", 209 F.3d 117, 123-24 (2d Cir. 2000). Plaintiff's Memorandum at 13-14. Plaintiff further alleges that the ALJ should have developed the record with regard to limitations related to Plaintiff's right forearm. Plaintiff's Memorandum at 15-17.
Defendant maintains that Dr. Miller's findings are consistent with the findings of Dr. West on April 11, 2012, and that Plaintiff's reliance on Selian and Curry are misplaced as no evidence supports that Plaintiff had more than a moderate limitation to repetitive heavy lifting, pushing, pulling and carrying, and that Plaintiff's reliance on Curry is further misplaced as such ruling was adopted by regulation. Defendant's Memorandum at 26-27.
In this this case, no error results from the ALJ's decision to afford more weight to Dr. Miller's opinion that Plaintiff had a moderate limitation to Plaintiff's right arm functioning. Even if Plaintiff, a younger individual at the time of the ALJ's decision, with a high school education would be unable to perform light work as a result of Plaintiff's right arm impairment, Plaintiff would be able to perform sedentary work. Sedentary work involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools. 20 C.F.R. § 404.1567(a). Although the sedentary job base may be eroded when an individual is unable to use his or her dominant hand, see Calix v. Colvin, 2016 WL 3003215, at * 18 (E.D.N.Y. May 23, 2016), Plaintiff has not provided the court with enough evidence to support that Plaintiff's inability to use his dominant right hand lasted for the required 12 month durational period, Discussion, infra, at 15.
A determination that Plaintiff is unable to perform light work does not require a finding of disability where the record supports a finding the Plaintiff can perform a full range of sedentary work and does not have limitations to factors such as loss of dexterity and the inability to sit for long periods of time. 20 C.F.R. § 404.1567(a). Furthermore, Plaintiff's ability to perform a full range of sedentary work, in light of Plaintiff's age, education and work experience requires finding that Plaintiff is not disabled under the Medical-Vocational Guidelines set forth under 20 C.F.R. Pt. 404, Subpt. P, App. 2 Rule 201.27-29. Plaintiff's motion on this issue is therefore without merit.
The court also notes that Plaintiff has asserted a due process claim based on the ALJ's hostility and impermissible bias toward Plaintiff. Plaintiff's Memorandum at 9-11. Social security-related due process claims, however, have been held to apply only to specific matters of procedural insufficiency. See Christopher v. Secretary of Health and Human Services, 702 F.Supp. 41, 42 (N.D.N.Y. 1989) (improper notice of denial of benefits correctly asserted as a violation of fifth amendment right to due process), see also Mathews v. Eldridge, 424 U.S. 319, 349 (1976) (social security evidentiary hearing not protected by due process clause).
Defendant maintains that the ALJ properly exercised discretion weighing inconsistent evidence in the record, that Plaintiff failed to provide evidence to fill a gap in the record for the period from March 2012 to August 2013, and that the ALJ's error in not considering Plaintiff's visits to Dr. Duquin on March 16, 2012, and Dr. West on April 11, 2012, does not arise to the standard for impermissible bias using the factors set forth under Singletary v. Astrue ("Singletary"), 2008 WL 132892, at *4 (W.D.N.Y. Jan. 22, 2008). Defendant's Memorandum at 15-17. Defendant's reliance on the ruling in Singletary is misplaced. The ruling set forth under Singletary addressed instances where a new ALJ should be required on remand. Plaintiff has not argued that remand for a new ALJ is necessary, and therefore the ruling under Singletary is not applicable here.
In this case, Plaintiff provided evidence to support Plaintiff's right arm impairment from Plaintiff's alleged onset date of disability on December 31, 2011, through April 11, 2012, the date that Dr. West evaluated Plaintiff after Plaintiff's second surgery on March 7, 2012. Under 42 U.S.C. §§ 1382c(a)(3)(A), 423(d)(1)(A), an individual is considered disabled if he or she is unable to engage in any substantial activity by reason of a medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of at least 12 months. Here, Plaintiff has not provided enough evidence to support that Plaintiff's right arm impairment lasted or was expected to last for a period greater than 12 months as is Plaintiff's burden. Plaintiff's motion for remand should therefore be denied and Defendant's motion on this ground should be granted.
Based on the foregoing, Defendant's motion (Doc. No. 12) should be GRANTED; Plaintiff's motion (Doc. No. 10) should be DENIED. The Clerk of the Court should be instructed to close the file.
Pursuant to 28 U.S.C. §636(b)(1), it is hereby
Let the Clerk send a copy of the Report and Recommendation to the attorneys for the Plaintiff and the Defendant.
SO ORDERED.
