Blessing v. Colvin
| Decision Date | 19 November 2015 |
| Docket Number | Case No. 3:14-CV-1489 (GTS) |
| Parties | RODNEY BLESSING, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of New York |
APPEARANCES:
LACHMAN & GORTON
Counsel for Plaintiff
PETER A. GORTON, ESQ.
HEETANO SHAMSOONDAR, ESQ.
Special Assistant U.S. Attorney
Currently before the Court, in this Social Security action filed by Rodney Blessing ("Plaintiff") against the Acting Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings (Dkt. Nos. 22, 23). For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.
Plaintiff was born on May 18, 1947. (Tr. 75, 213.) He obtained his GED in 1966, which is his highest level of education. (Tr. 82, 213.) Plaintiff was drafted into military service in 1967 during the Vietnam War where he was responsible for conducting daily mine sweeps and involved in heavy combat. (Tr. 121, 180.) During Vietnam, Plaintiff used marijuana and, upon returning to the United States, developed a drug addiction to heroin and cocaine as well as alcohol abuse. (Tr. 120, 209.) Plaintiff was incarcerated twice, once for shooting a policeman and once for armed robbery (in order to obtain money to buy drugs), for a total of eighteen years. (Tr. 121-22, 190.)
Plaintiff's past work experience includes his military service, working at his father's auto body shop after returning from Vietnam, and miscellaneous jobs while in prison. (Tr. 120, 190.) In addition, after being released from prison, Plaintiff began working at his wife's catering business in California. (Tr. 193.) Plaintiff worked there from 1991 through 2005 where he assisted with cooking, cleaning, supervising, and paperwork/bookkeeping. (Tr. 79.) At some point, Plaintiff's wife developed aplastic anemia and was unable to run the business, causing it to go bankrupt. (Tr. 198.) Plaintiff and his wife relocated to Binghamton, New York, where he began treatment with the Department of Veterans Affairs ("VA") in Wilkes Barre, Pennsylvania, for his drug abuse and post-traumatic stress disorder ("PTSD") related to his military service. (Tr. 70-A, 199, 120-25.) At the time of his hearing before Administrative Law Judge ("theALJ") Dennis O'Leary, Plaintiff was unemployed and stayed at home to take care of his wife and kids. (Tr. 35-36, 190-91.)
Generally, Plaintiff's alleged disability consists of knee and ankle impairments, including arthritis of the lower extremities. (Tr. 78, 209.) In addition, Plaintiff alleged mental limitations due to his PTSD and history of polysubstance abuse. (Tr. 208-09.) Plaintiff's alleged disability onset date is December 30, 2005, and his date last insured is March 31, 2006. (Tr. 206.)
On February 9, 2006, Plaintiff filed a Title II application for a period of disability and disability insurance benefits. (Tr. 206.) Plaintiff's application was initially denied after which he timely requested a hearing before an ALJ. (Tr. 28.) On April 21, 2008, Plaintiff appeared before ALJ Dennis O'Leary. (Tr. 174-202.) ALJ O'Leary issued a decision on May 27, 2008, finding Plaintiff not disabled during the relevant period. (Tr. 206.) On October 28, 2008, the Appeals Council ("AC") denied Plaintiff's request for review. (Tr. 4.) Subsequently, Plaintiff filed a civil action in this Court. Blessing v. Colvin, 951 F. Supp. 2d 367 (N.D.N.Y. 2013) ().
On June 24, 2013, United States District Judge Young remanded the claim to the Commissioner, pursuant to sentence four of 42 U.S.C. 405(g), directing the Commissioner to consider medical records dated after the date last insured for a determination regarding Plaintiff's disability without drug use. (Tr. 236.) On January 23, 2013, the AC vacated the final decision and remanded the claims to an ALJ for further proceedings. (Tr. 237.) Plaintiff was given the opportunity to submit additional records and to appear before ALJ Bruce S. Fein for a second administrative hearing. (Tr. 240-41, 296.) However, by letter dated April 30, 2014,Plaintiff advised ALJ Fein that further testimony was not required. (Tr. 291-92.) Nevertheless, on May 9, 2014, Plaintiff appeared for a hearing before ALJ Fein and reiterated that no further testimony was necessary and the record was complete. (Tr. 296-97.) Plaintiff also requested that ALJ Fein rely on the transcript from the 2008 hearing before ALJ O'Leary. (Id.)
On October 6, 2014, ALJ Fein issued a decision finding Plaintiff not disabled on or before the date last insured. (Tr. 206-14.) Plaintiff then commenced this action on December 11, 2014. (Dkt. No. 1.) Neither party specifically addresses how the decision of the ALJ became the final decision of the Commissioner. The ALJ's decision stated as follows: (T. 204.) It appears that 20 C.F.R. § 404.966 () was implemented in this case; however, the ALJ's decision does not cite any Regulation or other authority.
Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (Tr. 208-14.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity from his alleged onset date through his date last insured. (Tr. 208.) Second, the ALJ found that Plaintiff's PTSD and polysubstance abuse were severe impairments, but his arthritis in his lower extremities was a non-severe impairment. (Tr. 208-09.) Third, the ALJ found that Plaintiff's mental impairments did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). (Tr. 209-10.) In so doing, the ALJ considered the Listings in sections 12.06 and 12.09 and the criteria set forthin paragraphs "B" and "C" of Listing 12.00. (Tr. 209.) Fourth, the ALJ found that Plaintiff had a residual functional capacity ("RFC") to perform a full range of work at all exertional levels except that he was limited to simple, repetitive, routine task work in a low-stress job defined as only occasional decision-making, changes in the work setting, judgment required, and interaction with coworkers and supervisors. (Tr. 211.) Fifth, the ALJ found that Plaintiff is unable to perform his past relevant work. (Tr. 213.) Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id.)
Plaintiff makes three separate arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ failed to properly assess the entire medical record for the following three reasons: (a) the ALJ found Plaintiff had a marked limitation at steps two and three in his ability to maintain concentration, persistence, and pace, yet the ALJ failed to incorporate these limitations into his RFC; (b) the ALJ failed to consider Plaintiff's Global Assessment of Functioning ("GAF") score of 50, which indicates a "serious impairment in social, occupational, or school functioning"; and (c) the ALJ failed to consider and account for the periodic episodes of PTSD that Plaintiff suffers on a daily basis, such as flashbacks from Vietnam, which prevent him from functioning normally (and likely keeping a full-time job) until the flashbacks subside. (Id. at 14-17.)
Second, Plaintiff argues that the ALJ erred by failing to properly consider the medical opinion evidence. Specifically, Plaintiff argues that the ALJ completely ignored the opinion of Dr. Charles McGurk and failed to give sufficient weight to the opinion of Dr. MichaelThompson, both of whom are psychiatrists with the VA. (Id. at 9-14.) Finally, Plaintiff argues that the ALJ failed to consider the VA's determination that Plaintiff's PTSD rendered him "permanently and totally disabled." (Id. at 10.)
Third, and finally, Plaintiff argues that the ALJ erred at step five of the sequential evaluation by not consulting with a vocational expert ("VE") to determine whether there are jobs in significant numbers in the national economy that Plaintiff can perform. (Dkt. No. 22, at 7-8 [Pl.'s Mem. of Law].) More specifically, Plaintiff argues that the ALJ's reliance on SSR 85-15, which provides guidelines on the use of the Medical-Vocational Guidelines ("the Grids"), is misplaced because the combination of Plaintiff's limitations are too extensive. (Id. at 8.)
In response to Plaintiff's motion and in support of her own cross-motion, Defendant makes the following three arguments. First, Defendant argues that the ALJ properly considered the entire record for the following five reasons: (a) the ALJ determined that Plaintiff had marked limitations at step three of the sequential evaluation, which is not an RFC assessment that requires as much detail as the assessment at steps four and five; (b) Plaintiff failed to satisfy his burden demonstrating that he had additional limitations related to those that were marked; (c) although the ALJ did not specifically mention Plaintiff's GAF score, he considered Dr. Thompson's treatment notes, which contained his GAF score; (d) because Plaintiff's GAF score was determined more than a year after his date...
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