Brown v. Comm'r of Soc. Sec.

• Decision Date: 14 June 2016
• Docket Number: 3:15-CV-685 (ATB)
• Parties: LEIGH BROWN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

LEIGH BROWN, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

3:15-CV-685 (ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

June 14, 2016

PETER A. GORTON, ESQ., Attorney for Plaintiff

LAUREN E. MYERS, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, United States Magistrate Judge

MEMORANDUM DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment, by the Honorable Thomas J. McAvoy, Senior United States District Judge, by Order dated October 8, 2015, in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1, and the consent of the parties. (Dkt. No. 16).

I. PROCEDURAL HISTORY

On March 30, 2012, plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits ("DIB"). (Administrative Transcript ("T") 78, 224). On August 23, 2012, plaintiff protectively filed a Title XVI application for Supplemental Security Income ("SSI"). (T. 89, 199). In both applications, plaintiff alleged a disability onset date of January 1, 2010 due to depression, anxiety, agoraphobia, and back pain.¹ (T. 12, 192). Both claims were denied initially onNovember 16, 2012. (T. 100-107).

Plaintiff requested a hearing which was held on December 17, 2013, before Administrative Law Judge ("ALJ") Bruce Fein, at which plaintiff testified. (T. 44-77). On April 24, 2014, ALJ Fein issued a decision denying plaintiff's application for benefits. (T. 12-23). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on May 11, 2015. (T. 1-6).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he 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). 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 ofsubstantial 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.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner ] will consider him disabled without considering vocational factors such as age, education, and work experience . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determinewhether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review " - even more so than the 'clearly erroneous standard.'" Brault, 683 F.3d at 448.

"To determine on appeal whether an ALJ's findings are supported by substantial evidence, 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 on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJcannot "'pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was thirty-two years old at the time of the hearing and testified that he was 5'3" tall and weighed approximately 123 pounds. (T. 46-47). He completed the eighth grade, but stated that he dropped out of school in the ninth grade because he got "depression," making it difficult to be around other students. (T. 47). Plaintiff stated that, although he never obtained a General Equivalency Diploma ("GED"), he did get a "culinary" certificate after taking a five-hour course through the Broome County Health Department. (T. 48).

Plaintiff testified that in 1999, he worked as a dishwasher at a restaurant in Florida. This job ended because the manager got fired, and the restaurant was sold. (T. 50). In 2000, plaintiff worked for two months doing "collections over the phone" at Nationwide Credit. He left that position because he had "[b]ad anxiety there" due to the number of employees with whom he had to work. (T. 51). From 2003 until 2008, plaintiff worked as a dish washer and as line cook at the Binghamton Country Club.² (T. 48). Plaintiff testified that he was laid off from this job because "it waswintertime." (T. 50). Plaintiff also worked as a grill cook at "Five Guys" for three or four months, but the restaurant was busy, and he left that position due to anxiety. (T. 53). Plaintiff also worked for two or three months at a newspaper company putting bundles of papers together and inserting ads, but left that job because "[t]he anxiety [and] depression really got [him]." (T. 54). He worked at a hotel as a breakfast cook, but left that job due to his anxiety and depression. (T. 55). Plaintiff testified that he told his boss that he could not handle the work because of his anxiety." (Id.)

Plaintiff's most recent work was as a "[m]eat clerk" for the Price Chopper grocery store in Binghamton. (T. 56). Plaintiff worked at the Price Chopper job for two or three months, but then asked his manager for "medical leave" due to his anxiety and depression. (T. 57). Plaintiff testified that he realized that he needed to get himself "some [mental] help." (Id.) Plaintiff began seeing his primary care provider, Physicians Assistant ("PA") Patricia Vincent, and Social Worker ("LSW") Thomas Butler for his mental condition. (T. 57-58). Plaintiff testified that he has never seen a psychiatrist for his mental impairments. (T. 58). PA Vincent originally prescribed Zoloft for plaintiff's anxiety and depression, but plaintiff did not like the side effects. As a result, PA Vincent changed plaintiff's medication to Effexor for his anxiety and depression as well as Ambien for his insomnia. (T. 58). Plaintiff testified that he suffered from insomnia for a "long time," but in the past, he simply "dealt with it" by "being tired." (T. 59).

Plaintiff testified that he lived with his mother, and that he had three children - two girls and one boy - who lived with their respective mothers. (T. 64). However, plaintiff stated that he had frequent visitation rights with his twelve-year-old son. (Id.) Plaintiff testified that his mother did most of the shopping, cooking, laundry, and house cleaning. (T. 65-66). Plaintiff testified that he would go shopping, but his mother went more often than he did. He stated that he tended to go shopping at night when there were less people in the store, which reduced his anxiety. (T. 65). Plaintiff does not have a driver's license. (T. 66).

Plaintiff testified that in a typical day, he gets out of bed, has a cup of coffee, sits down, checks to see if he has any appointments, chats with his mother a while, and sits around on the couch, reading cookbooks. After dark, he goes to the store, if necessary. (T. 66-67). He occasionally listens to a "relaxation tape." (T. 67). He watches movies with his son. (Id.) In the past, he has had one or two friends, but at the time of the hearing,...