Bennett v. Colvin

• Decision Date: 03 July 2015
• Docket Number: 5:14-CV-0537 (TJM/TWD)
• Parties: RICHARD LEE BENNETT, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

RICHARD LEE BENNETT, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

5:14-CV-0537 (TJM/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

July 3, 2015

APPEARANCES:

OLINSKY LAW GROUP

Counsel for Plaintiff

One Park Place

300 South State Street, Suite 420

Syracuse, New York 13202

HON. RICHARD S. HARTUNIAN

United States Attorney for the

Northern District of New York

Counsel for Defendant

Room 218

James T. Foley U.S. Courthouse

Albany, New York 12207

OFFICE OF GENERAL COUNSEL

Social Security Administration

26 Federal Plaza, Room 3904

New York, New York 10278

OF COUNSEL:

HOWARD D. OLINSKY, ESQ.

MONIKA K. CRAWFORD

Special Assistant United States Attorney

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter was referred to the undersigned for report and recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. §636(b) and Northern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, it is recommended that the Court affirm the decision of the Administrative Law Judge.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is currently thirty-eight years old. (Administrative Transcript¹ ("T.") at 40.) Plaintiff is a high school graduate. (T. at 42.) Plaintiff has had a variety of jobs, including apartment maintenance, cleaning molds for two plastic companies, and assembly work. (T. at 45-49.) Plaintiff alleges disability due to learning disability, epilepsy, narcolepsy, and speech problems. (T. at 253.)

Plaintiff applied for disability insurance benefits on May 1, 2009,² alleging that he became disabled on December 1, 2008. (T. at 205.) The application was denied on June 19, 2009. (T. at 125.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (T. at 133.) The hearing was held on June 1, 2010. (T. at 34.) On July 28, 2010, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 104-14.)

Plaintiff returned to work in August 2011. (T. at 19.)

On December 8, 2011, the Appeals Council remanded the case to the ALJ to give furtherconsideration to Plaintiff's maximum residual functional capacity ("RFC"), adhere to standards regarding conclusions reached about Plaintiff's past relevant work, and, if warranted, obtain evidence from a vocational expert. (T. at 119-21.)

The ALJ conducted a second hearing on September 20, 2012. (T. at 72.) At that hearing, Plaintiff's attorney requested that the ALJ consider whether Plaintiff was disabled from December 1, 2008, to a date nine months after he returned to work. (T. at 17.)

On October 25, 2012, the ALJ issued another decision finding that Plaintiff was not disabled. (T. at 14-27.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on March 12, 2014. (T. at 5.) Plaintiff received a thirty-day extension of time in which to file a civil action. (T. at 1.) Plaintiff commenced this action on May 7, 2014. (Dkt. No. 1.)

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any substantial gainful activity by reason of any 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 not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A) (2006). In addition, the plaintiff's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

§ 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). Under that five-step sequential evaluation process, the decision-maker determines:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014.) "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision.Featherly v. Astrue, 793 F. Supp. 2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986.

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g) (2012); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Roat v. Barnhart, 717 F. Supp. 2d 241, 248 (N.D.N.Y. 2010);³ Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Featherly, 793 F. Supp. 2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "To determine on appeal whether an ALJ's findings are supported by substantialevidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams, 859 F.2d at 258 (citations omitted). However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

III. THE ALJ'S DECISION

Here, the ALJ found that (1) there was a twelve-month period during which Plaintiff did not engage in substantial gainful activity; (2) Plaintiff suffers from the severe impairments of borderline intellectual functioning and a history of hypersomnia; (3) Plaintiff does not have an impairment or a combination of impairments that meets or medically equals a listed impairment; (4) Plaintiff has the RFC to perform a full range of work at all exertional levels, but should avoid concentrated exposures to machinery, heights, driving a motor vehicle, and other hazardous activities; (5) Plaintiff is unable to perform any past relevant work; (6) jobs exist in significant numbers in the national economy that Plaintiff can perform; and (7) Plaintiff is not disabled. (T. at 19-27.)

IV. THE PARTIES' CONTENTIONS

Plaintiff claims that the ALJ erred by: (1) failing to find Plaintiff disabled under Listing 12.05(C); (2) reaching an RFC determination unsupported by substantial evidence; (3) failing to properly assess Plaintiff's credibility; and (4) failing to properly account for Plaintiff's nonexertional limitations by consulting a vocational expert. (Dkt. No. 10.)

Defendant contends that the ALJ's decision applied the correct legal standards, issupported by substantial evidence, and thus should be affirmed. (Dkt. No. 13.)

V. DISCUSSION

Plaintiff argues that the ALJ erred at Steps Three, Four and Five of the five-step process. (Dkt. No. 10.) Defendant argues that the ALJ's decision applied the correct legal standards, is supported by substantial evidence, and thus should be affirmed. (Dkt. No. 13.) For the reasons discussed below, Defendant is correct.

A. Step Three: Listing 12.05(C)

Plaintiff argues that the ALJ erred by failing to find him disabled under Listing 12.05(C). (Dkt. No. 10 at 3, 12-16.⁴) Defendant argues that the ALJ's decision is supported by...