Kamerling v. Massanari

• Decision Date: 03 July 2002
• Docket Number: Docket No. 00-6268.
• Court: U.S. Court of Appeals — Second Circuit
• Parties: Joanne KAMERLING, Plaintiff-Appellant, v. Larry G. MASSANARI, Acting Commissioner of the Social Security Administration,<SMALL><SUP>*</SUP></SMALL> Defendant-Appellee.

295 F.3d 206

Joanne KAMERLING, Plaintiff-Appellant, v. Larry G. MASSANARI, Acting Commissioner of the Social Security Administration,^* Defendant-Appellee.

Docket No. 00-6268.

United States Court of Appeals, Second Circuit.

Argued: June 21, 2002.

Decided: July 03, 2002.

COPYRIGHT MATERIAL OMITTED

Joanne Kamerling, East Haven, CT, pro se.

Ann M. Nevins, Assistant United States Attorney, Bridgeport, CT, for John A. Danaher III, United States Attorney for the District of Connecticut (Nancy B. Salafia, Assistant Regional Counsel, Social Security Administration, Boston, MA, of counsel), for Defendant-Appellee.

Before McLAUGHLIN, CALABRESI, and B.D. PARKER, Jr., Circuit Judges.

PER CURIAM.

Plaintiff-Appellant Joanne Kamerling ("Kamerling"), an attorney proceeding pro se,¹ appeals from a ruling, dated May 18, 2000, of the United States District Court for the District of Connecticut (Dorsey, J.) remanding Kamerling's application for social security disability benefits to the administrative law judge (the "ALJ") for further findings regarding Kamerling's potential mental health disability. The district court also denied Kamerling's request for a preliminary injunction that would force the Social Security Administration (the "SSA") to provide a waiver form to all recipients of disability or elderly benefits. Plaintiff sought the waiver form to enable benefit recipients to disclaim all or part of their monthly awards in favor of the SSA rather than the United States Department of Treasury (the "Treasury") and, in so doing, simultaneously to express opposition to the United States government and replenish the depleting SSA fund.

This appeal followed.

BACKGROUND

Plaintiff-Appellant filed an application for disability benefits with the SSA on March 12, 1993, claiming that she had become disabled as a result of a back injury that she suffered when she fell down several flights of stairs on February 28, 1992. Plaintiff alleged a number of symptoms, including degeneration of spinal discs, problems with her joints, tremors, difficulty concentrating and sleeping, and depression. The SSA denied plaintiff's application initially and upon reconsideration. In denying Kamerling's request for benefits, the SSA stated that, although plaintiff's physical and emotional problems prevented her from returning to her previous job as an attorney, the medical evidence indicated that plaintiff had the ability to perform work at the sedentary level.²

Plaintiff appealed, but, after making a request for a hearing before an administrative law judge, Kamerling waived her right to appear and, after being fully advised of her right to counsel, proceeded pro se. No hearing was held and, on January 31, 1995, the ALJ issued a decision finding Kamerling not to be disabled. Applying the familiar five-step sequential evaluation for determining whether a person is disabled,³ see 20 C.F.R. § 416.920, the ALJ concluded that Kamerling was not disabled because, although plaintiff's physical and emotional symptoms, when considered together, constituted severe impairments that precluded plaintiff from performing her past work as an attorney and a teacher, plaintiff nevertheless retained the residual functional capacity to perform sedentary work.⁴ The ALJ found that the objective medical evidence did not support plaintiff's subjective complaints of disabling pain or her allegations of severe functional incapacity.

In reaching this conclusion, the ALJ discounted the residual functional capacity assessments and opinions of "permanent" and "total" disability provided by plaintiff's treating physicians. Because the ALJ found that the treating physicians's opinions were not adequately supported by medically acceptable evidence and were inconsistent with other substantial evidence in the record (including the findings of both independent and state agency physicians), the ALJ determined that the treating physicians' opinions were not entitled to controlling weight under 20 C.F.R. § 404.1527.⁵

After considering plaintiff's allegations of physical disability, the ALJ proceeded to evaluate the medical evidence concerning her mental health. Included in the medical record were reports from plaintiff's psychiatrist, which indicate that Kamerling is depressed, suffers from significant pain, cannot concentrate effectively, and is unable to function effectively in her work as an attorney. The reports state, moreover, that plaintiff was being treated with anti-depressants and supportive psychotherapy. A mental residual functional capacity assessment performed by a state psychologist also indicates that plaintiff suffers from an affective disorder that often limits plaintiff's social functioning and concentration, but that there is no evidence of organic mental, psychotic, personality, or anxiety-related disorders. Kamerling has, throughout the disability determination process, strenuously denied that she has a mental impairment.

In his decision, the ALJ observed that the physicians' and psychologist's treatment notes, as well as plaintiff's numerous letters to the Office of Hearings and Appeals, indicate that Kamerling suffers from a personality disorder with depression and maladaptive behavior that may preclude her from returning to her past relevant work. The ALJ determined, however, that the written record⁶ did not show that Kamerling has a severe mental impairment that prevents her from engaging in substantial gainful activity.

Since Kamerling's claim survived the first four steps of the disability determination inquiry, the burden shifted to the Commissioner to show that there is other gainful work in the national economy that Kamerling could perform. See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir.2000); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996). The ALJ concluded that, considering plaintiff's age, education, work experience, and residual functional capacity, "jobs exist in significant numbers in the national economy which [plaintiff] can perform." The ALJ continued:

Administrative notice is taken that large numbers of jobs exist in the national economy such as title searcher, legal researcher, legal librarian, and similar jobs which involve minimal stress and limited contact with others, where a worker can sit or stand at his or her option, and where the [plaintiff's] legal experience could be utilized.

On administrative appeal, the SSA Appeals Council stated that the ALJ "properly rejected the opinion of treating physicians" and that "[s]ubstantial evidence exists in the record to support the residual functional capacity finding" of the ALJ. The Appeals Council nevertheless remanded the case to the ALJ, stating:

[T]he Administrative Law Judge cannot take "administrative notice" of either the existence, skill level, or transferability of skills from such jobs as title searcher and legal researcher.... The Medical Vocational Guidelines ... take administrative notice only of the existence of a certain number of unskilled occupations at the sedentary, light, and medium exertional levels.... Vocational expert evidence is required to identify transferable skills, occupations for which skills may be transferred, and the numbers of jobs the claimant may still be capable of performing.

On remand, the ALJ conducted a hearing on January 9, 1997. Kamerling again did not retain counsel and, citing several objections to the disability determination process, declined to participate.⁷ At the hearing, the ALJ elicited testimony from a vocational expert, who stated that a person of plaintiff's age, education, and past work experience, and who could do sedentary work could perform plaintiff's past relevant work as an attorney. The vocational expert testified, however, that he needed "clarification" on plaintiff's personality disorder, and that, "without more definitive information about [plaintiff's] psychiatric situation," he could not determine its vocational impact. He concluded, nevertheless, that "there are jobs," such as legal researcher and title searcher,⁸ which "could be suitable [for plaintiff], assuming [that] there [are] no conflicting psychiatric problems." These jobs, the vocational expert testified, exist in significant numbers both in plaintiff's local market and in the national economy.

On February 7, 1997, the ALJ issued a decision in which he reiterated his conclusions that the opinions of plaintiff's treating physicians were not entitled to controlling weight and that plaintiff's subjective complaints of pain were not credible. The ALJ stated, further, that, although the vocational expert had testified that plaintiff could perform her past relevant work as an attorney, the ALJ had concluded that, in light of plaintiff's functional limitations, plaintiff may not be able to perform such work. The ALJ noted, however, that, given plaintiff's residual functional capacity and the vocational testimony, plaintiff could be expected to perform the sedentary work of a legal researcher or similar law-related jobs, which exist in significant numbers in the national economy.

Plaintiff requested a review by the Appeals Council, which request was denied. Plaintiff then filed a complaint in the United States District Court for the District of Connecticut, seeking reversal of the ALJ's decision and asserting a panoply of constitutional challenges to the disability determination process. Plaintiff claimed, inter alia, that reliance on the report of a non-treating physician, who had not examined her and apparently had not reviewed all of her medical reports, violated her rights to due process and equal protection, as well as her rights under the Confrontation Clause. Plaintiff claimed, moreover, that the SSA committed fraud and destroyed, mutilated, altered, and omitted some medical reports from her administrative file. Furthermore, plaintiff asserted that failure to provide a waiver form so that recipients could waive benefits in favor of the SSA fund violates the...