Campbell v. Colvin
| Decision Date | 14 November 2014 |
| Docket Number | CIVIL ACTION NO. 5:13-451 |
| Parties | JOANNE C. CAMPBELL, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant. |
| Court | U.S. District Court — Northern District of New York |
Joanne C. Campbell ("Campbell") seeks review of an adverse decision on her application for disability insurance benefits under the Social Security Act.
A reviewing court's limited role under 42 U.S.C. § 405(g) is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. § 405(g). Reviewing courts also must take "due account" of "the rule of prejudicial error." 5 U.S.C. § 706; see also 28 U.S.C. § 2111 (); see also FED. R. CIV. P. 61 ().
Campbell completed high school and attended some college. She held jobs as a quality control manager in a factory, a certified nursing assistant, a babysitter, and a bus aide for special needs children. (T. 48, 52, 53, 55, 324, 382).
In 2008, Campbell alleged disability commencing October 1, 2003, due to fibromyalgia, back injury, and depression. (T. 304). Subsequently, she amended her onset-of-disability date to August 25, 2004. (T. 367).
Campbell alleges that she suffers from pain in her shoulders, neck and spine. (T. 54-55). In 1998, she was prescribed Amitriptyline for fibromyalgia; it did not work very well and she began having problems with her memory. (T. 56). In addition to body aches and memory loss, she suffered from heart palpitations, and side effects from medication made her feel like a "zombie," dizzy, nauseous, and caused a rash and breathing difficulties. (T. 57-58). She switched medications to help her out, but she still suffered from pain, fatigue, and anxiety. (T. 56-58).
After her claim was denied initially, she requested and received an evidentiary hearing before an administrative law judge, Vivian W. Mittleman, who denied Campbell's application. (T. 78-114, 119-129). The Appeals Council vacated ALJ Mittleman's decision and remanded the matter for a new hearing.1(T. 134-36). Upon remand, the claim was assigned to a new administrative law judge, Elizabeth W. Koennecke, who conducted a second evidentiary hearing. ALJ Koennecke received into evidence (a) testimony from Campbell and a vocational expert, Esparanza DiStefano, M.S., C.R.C., (b) forensic reports from treating sources, and (c) Campbell's medical treatment records.
ALJ Koennecke denied Campbell's application in a written decision dated March 20, 2012. (T. 22-37). Campbell filed a request to review with the Appeals Council. (T. 14-18). She also submitted to the Appeals Council a four-page "Addendum to Request for Review," wherein her counsel attached "New and Material Evidence" (T. 409-11), in the form of 38 pages of medical records from University Hospital, University Health Care Center, SUNY Health Science Center at Syracuse (hereafter "SUNY Health Science Center") from January 1998 through December 2000.2 (Dkt. No. 17, p. 20 & Ex. B). Those records reflected Campbell's initial diagnosis of fibromyalgia and treatment thereof. (Id.). The Appeals Council "looked at" this evidence, but decided that it was not relevant to the period considered by the Administrative Law Judge (an alleged onset date of August 25, 2004, through the date last insured of December 31, 2007), and, therefore, only concerned "an earlier time." (T. 2).
The Appeals Council denied Campbell's request for review (T. 1-6). Campbell then instituted this proceeding.
ALJ Koennecke found that Campbell suffers from severe impairments of fibromyalgia, migraine headaches, and chronic obstructive pulmonary disease. (T. 26). She found that Campbell's impairments reduce her work capacity such that she can now work only at the sedentary exertional level in jobs with an option to sit and stand at will.3 (T. 31). Relying on testimony from VE DiStefano, ALJ Koennecke determined that Campbell can no longer perform her past relevant work as certified nursing assistant because it requires capacity to work at the medium exertional level. (T. 34). Relying further on expert vocational testimony, ALJ Koennecke found that alternative and available jobs exist in significant numbers in the national economy that Campbell can perform. (T. 35-37). VE DiStefano testified that a person with Campbell's residual functional capacity can successfully perform work duties of a telephone solicitor, and information clerk, and order filler. (T. 36).
Based on this testimony and "under the framework of section 201.28 in the Medical-Vocational Guidelines,"4 ALJ Koennecke concluded that Campbell was "not disabled" as of the date she was last insured (December 31, 2007). (T. 37).
ALJ Koennecke utilized a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just method for determining disability applications.5 At Step 2 of that procedure, ALJ Koennecke found that Campbell has certain severe impairments but that other alleged impairments were not severe.6 At Step 3, ALJ Koennecke found that none of Campbell's impairments have the degree of severity as to make them presumptively disabling under the Commissioner's "Listings."7 Campbell does not quarrel with either of these findings.
With respect to subsequent findings regarding residual functional capacity and Campbell's capacity to perform alternative and available work, Campbell argues that ALJ Koennecke committed multiple errors. Restated (with minor grammatical changes) those proffered errors are:
(Dkt. No. 17, p. ii-iii).
Campbell's scattergun attack contains several unmeritorious arguments that do not warrant extensive discussion. Administrative law judges need not cite every item of evidence on which they rely,8 and absence of an express citation does not mean that there is an absence of evidence. Campbell's first point - which argues that, as a matter of law, a residual functional capacity cannot be supported by substantial evidence absent an express citation of evidence rebutting treating physician opinion - lacks merit. As the Commissioner rightly observes, an administrative law judge sometimes can rely on what the evidence does not show, in which event there is no evidence to cite.
Campbell's second point - that the evidentiary record was not developed adequately - also is unpersuasive. Upon remand, ALJ Koennecke wroteCampbell's counsel and requested that he "contact [treating physician] Dr. Fiacco and obtain clarification of the opinions submitted." That letter also stated "[i]f it is not your intention to develop the evidence as ordered by the Appeals Council or to develop other evidence that would support the claim, please notify me in writing so that I may assist the claimant with the full development of their [sic] claim in accordance with the order." (T. 241). ALJ Koennecke did not receive any communication from the claimant's attorney requesting assistance in the development of Campbell's claim. (T. 23).
Campbell, even now, identifies no obvious gap in the evidence that precluded ALJ Koennecke from making a fully-informed decision. Because the relevant period at issue ranged from 2004 through 2007, it would have been futile for ALJ Koennecke in 2011 or 2012 to request updated consultative examinations and reports. While the record reflects that ALJ Koennecke became impatient with what she considered a too lengthy evidentiary presentation by Campbell,9 she nevertheless allowed Campbell more than 45 minutes to present her evidence, and at the conclusion of the hearing, Campbell's counsel responded that he had "nothing else" to present. (T. 66, 77). In this proceeding, Campbell identifies no evidence she would have presented but for being cut off at the hearing, or other evidence that ALJ Koennecke should have developed before orafter the hearing. Given these circumstances, Campbell's second point of error is not persuasive.10
Campbell's third point is similar in its focus to her first, and fails for the same reason. She complains that ALJ Koennecke erred when failing to "cite" favorable evidence in the record or explain why it was not "considered" when assessing Campbell's residual functional capacity. Campbell points to "numerous documents and [subjective] testimony" at both evidentiary hearings "indicating severe limitations to the Plaintiff's daily activities and past work efforts" that ALJ Koennecke failed to...
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