Clark v. Carolyn W. Colvin Acting Comm'r of Soc. Sec., 3:15-CV-00025 (DNH/TWD)

• Decision Date: 04 March 2016
• Docket Number: 3:15-CV-00025 (DNH/TWD)
• Parties: RICHARD CLARK, Plaintiff, v. CAROLYN W. COLVIN ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

RICHARD CLARK, Plaintiff, v. CAROLYN W. COLVINACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

3:15-CV-00025 (DNH/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

March 4, 2016

APPEARANCES:

LACHMAN & GORTON

Counsel for Plaintiff

1500 E. Main St.

P.O. Box 89

Endicott, New York 13761

HON. RICHARD S. HARTUNIAN

United States Attorney for the

Northern District of New York

Counsel for Defendant

Room 218

James T. Foley U.S. Court House

Albany, New York 12207

OFFICE OF GENERAL COUNSEL

Social Security Administration

26 Federal Plaza, Room 3904

New York, New York 10278

OF COUNSEL:

PETER A. GORTON, ESQ.

TOMASINA DIGRIGOLI, ESQ.

Special Assistant United States Attorney

STEPHEN P. CONTE, ESQ.

Chief Counsel, Region II

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT-RECOMMENDATION

This matter was referred to the undersigned for report and recommendation by the Honorable David N. Hurd, 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 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, the Court recommends that the decision of the Commissioner be affirmed and the Complaint (Dkt. No. 1) be dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was born on October 19, 1964. (Administrative Transcript at 158.¹) Plaintiff completed the ninth grade. (T. at 476.) He does not have a GED or any formal vocational training. (T. at 477.) Plaintiff reported past work as a mechanic, construction mechanic, tow truck operator, and heavy equipment operator. (T. at 478, 480, 482.) Plaintiff has not worked since 2010. (T. at 477.) Plaintiff alleges disability since August 5, 2010, due to injuries to his left arm, left shoulder, right knee, right hip, and back pain. (T. at 151, 158, 183.)

On August 5, 2010, Plaintiff applied for disability insurance benefits and supplementary security income ("SSI"). (T. at 151-61.) On October 8, 2010, both applications were initially denied. (T. at 12.) On October 28, 2010, Plaintiff requested a hearing before an administrative law judge ("ALJ"). (T. at 12.) On July 22, 2011, the hearing was adjourned, and on September 19, 2011, the hearing was held before ALJ Edward J. Pitts ("ALJ Pitts"). (T. at 12.) On October 28, 2011, ALJ Pitts issued a decision finding that Plaintiff was not disabled. (T. at 12.) On October 23, 2012, ALJ Pitts' decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (T. at 1-6.) Plaintiff commenced a civil action in this Court on December 13, 2012, No. 3:12-cv-01826-LEK-DEP.

On September 19, 2013, the District Court dismissed the action in favor of Plaintiff, and remanded the case to the Commissioner pursuant to the fourth sentence of 42 U.S.C. § 405(g). (T. at 526-28.) On April 23, 2014, the Appeals Council vacated the final decision, and remanded the case to an ALJ to obtain testimony from a vocational expert. (T. at 529-33.)

On October 20, 2014, a supplemental hearing was held before ALJ Robert E. Gale. (T. at 467-504.) Plaintiff appeared in Binghamton, New York, and was represented by counsel. (T. at 451.) The ALJ presided over the hearing from Syracuse, New York. (T. at 451.) Linda Vause, an impartial vocational expert testified. (T. at 451.) On October 31, 2014, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 448-61.) The ALJ's decision became the final decision of the Commissioner on December 31, 2014, because Plaintiff did not file exceptions. (T. at 449.) Plaintiff timely commenced this action on January 9, 2015. (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) (2015). 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.

42 U.S.C. § 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);² 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, 30 U.S. 197, 229 (1938)).

"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, 859 F.2d at 258 (citations omitted). If supported by substantial evidence, the ALJ's findings must be sustained "even where substantial evidence may support the plaintiff's positions and despite that the court's independent analysis of the evidence maydiffer from the [ALJ's]." Rosado, 805 F. Supp. at 153. 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. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

III. THE ALJ'S DECISION

The ALJ determined that Plaintiff met the insured status requirements of the SSA through December 31, 2015. (T. at 453.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged disability onset date of August 5, 2010. Id. At step two, the ALJ determined that Plaintiff had the following severe impairments: tendon repair of the left upper extremity in 2000, status post right knee patella fracture repair in 2001, and status post left lateral femoral condyle repair in 2001.³ (T. at 454.) At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. at 455.)

The ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a), with additional limitations. Id. Plaintiff could lift/carry and/or push/pull no more than ten pounds occasionally and less than ten pounds frequently; stand/walk two out of eight hours for one hour at a time...