Crimi v. Comm'r of Soc. Sec.

• Decision Date: 17 September 2020
• Docket Number: 19-CV-455 HBS
• Parties: Michael Robert Crimi, Plaintiff, v. Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Western District of New York

Michael Robert Crimi, Plaintiff, v. Commissioner of Social Security, Defendant.

19-CV-455 HBS

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

September 17, 2020

Decision and Order

(Consent)

I. INTRODUCTION

The parties have consented to this Court's jurisdiction under 28 U.S.C. § 636(c). The Court has reviewed the Certified Administrative Record in this case (Dkt. No. 4, pages hereafter cited in brackets), and familiarity is presumed. This case comes before the Court on cross-motions for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. Nos. 9, 10.) In short, plaintiff is challenging the final decision of the Commissioner of Social Security (the "Commissioner") that he was not entitled to Disability Insurance Benefits under Title II of the Social Security Act. The Court has deemed the motions submitted on papers under Rule 78(b).

II. DISCUSSION

"The scope of review of a disability determination . . . involves two levels of inquiry. We must first decide whether HHS applied the correct legal principles in making the determination. We must then decide whether the determination is supported by substantial evidence." Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987) (internal quotation marks and citations omitted). When a district court reviews a denial of benefits, the Commissioner's findings as to any fact, if supported by substantial evidence, shall be conclusive. 42 U.S.C. § 405(g).

"The phrase 'substantial evidence' is a 'term of art' used throughout administrative law to describe how courts are to review agency factfinding. Under the substantial-evidence standard, a court looks to an existing administrative record and asks whether it contains 'sufficient evidence' to support the agency's factual determinations. And whatever the meaning of 'substantial' in other contexts, the threshold for such evidentiary sufficiency is not high. Substantial evidence, this Court has said, is 'more than a mere scintilla.' It means—and means only—such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Biestek v. Berryhill, ___ U.S. ___, 139 S. Ct. 1148, 1154 (2019) (internal quotation and editorial marks and citations omitted); see also Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999).

The substantial evidence standard applies to both findings on basic evidentiary facts, and to inferences and conclusions drawn from the facts. Stupakevich v. Chater, 907 F. Supp. 632, 637 (E.D.N.Y. 1995); Smith v. Shalala, 856 F. Supp. 118, 121 (E.D.N.Y. 1994). When reviewing a Commissioner's decision, the court must determine whether "the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Winkelsas v. Apfel, No. 99-CV-0098H, 2000 WL 575513, at *2 (W.D.N.Y. Feb. 14, 2000). In assessing the substantiality of evidence, the Court must consider evidence that detracts from the Commissioner's decision, as well as evidence that supports it. Briggs v. Callahan, 139 F.3d 606, 608 (8th Cir. 1998). The Court may not reverse the Commissioner merely because substantial evidence would have supported the opposite conclusion. Id. "The substantial evidence standard means once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and citations omitted).

For purposes of Social Security disability insurance benefits, a person is disabled when 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 12 months." 42 U.S.C. §§ 423(d)(1)(A) & 1382c(a)(3)(A).

Such a disability will be found to exist only if an individual's "physical or mental impairment or impairments are of such severity that [he or she] is not only unable to do [his or her] previous work but cannot, considering [his or her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. . . ." 42 U.S.C. §§ 423(d) (2)(A) & 1382c(a)(3)(B).

Plaintiff bears the initial burden of showing that the claimed impairments will prevent a return to any previous type of employment. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Once this burden has been met, "the burden shifts to the [Commissioner] to prove the existence of alternative substantial gainful work which exists in the national economy and which the plaintiff could perform." Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1551 (2d Cir. 1983); Parker v. Harris, 626 F.2d 225, 231 (2d Cir. 1980).

To determine whether any plaintiff is suffering from a disability, the Administrative Law Judge ("ALJ") must employ a five-step inquiry:

(1) whether the plaintiff is currently working;

(2) whether the plaintiff suffers from a severe impairment;

(3) whether the impairment is listed in Appendix 1 of the relevant regulations;

(4) whether the impairment prevents the plaintiff from continuing past relevant work; and

(5) whether the impairment prevents the plaintiff from doing any kind of work.

20 C.F.R. §§ 404.1520 & 416.920; Berry, supra, 675 F.2d at 467. If a plaintiff is found to be either disabled or not disabled at any step in this sequential inquiry then the ALJ's review ends. 20 C.F.R. §§ 404.1520(a) & 416.920(a); Musgrave v. Sullivan, 966 F.2d 1371, 1374 (10th Cir. 1992). However, the ALJ has an affirmative duty to develop the record. Gold v. Secretary, 463 F.2d 38, 43 (2d Cir. 1972).

To determine whether an admitted impairment prevents a plaintiff from performing past work, the ALJ is required to review the plaintiff's residual functional capacity ("RFC") and the physical and mental demands of the work done in the past. 20 C.F.R. §§ 404.1520(e) & 416.920(e). The ALJ must then determine the individual's ability to return to past relevant work given the RFC. Washington v. Shalala, 37 F.3d 1437, 1442 (10th Cir. 1994).

Of the various issues that the parties have raised, the issue that draws the Court's immediate attention concerns plaintiff's date last insured. To receive Title II benefits, claimants must satisfy the applicable disability requirements while they have disability insurance status. See 42 U.S.C. § 423(a)(1); 20 C.F.R. §§ 404.110, 404.320; see also Arnone v. Bowen, 882 F.2d 34, 38 (2d Cir. 1989) (citations omitted). The parties do not dispute that plaintiff had disability insurance status between 2003 and 2008 and that his date last insured was December 31, 2008. Through the date last insured, the ALJ found that plaintiff had the severe impairments of left knee surgeries, depression, bipolar disorder, and panic disorder. [16.] After finding that plaintiff met no medical listing through the date last insured, the ALJ concluded that plaintiff had the RFC for light work with some exertional and non-exertional limitations. [19-20.] Plaintiff now challenges the RFC and the Commissioner's final determination on the basis that the ALJ failed to give appropriate consideration to three different opinions: treatment opinions by physician assistant Alice Barber; an audiology evaluation from 2009 that, in plaintiff's view, would establish his tinnitus as a severe impairment; andorthopedic opinions from Dr. Diane DenHaese. The problem for plaintiff is that the opinions on which he relies all came after the date last insured. Plaintiff's counsel acknowledged the problem at the hearing before the ALJ, when plaintiff appeared to focus mostly on neck and knee pain:

ALJ: All right, let me ask you, your brief doesn't address the DLI in this case, which is in 2008.

ATTY: Right.

ALJ: Can you tell me what establishes a severe medically determinable right knee impairment as of December 2008?

ATTY: Right, so the claimant did treat for his knees previously in Las Vegas, before he moved back to Buffalo. And, at that point he began treating with the VA for his continuing knee pain, as well as his mental health.

ALJ: Okay. Well, what—can you tell me specific evidence that establishes that it was severe as of December 2008? Because, I did not see much evidence with regard to that time period.

ATTY: Right, unfortunately, there was not much. I do see, let's see, Exhibit 3F, at 21. It looks like a diagnosis of osteoarthritis involving the knee. He was continuing to treat for that.

ALJ: When was his treatment for that; the period around December 2008?

ATTY: The treatment date for this was November 28, 2006.

ALJ: Uh-huh. Anything else?

ATTY: I also did note 7F, page 48, it did include evaluation of his right knee. Although, it was—this evaluation was in 2012, it did talk about the fact that his knee, you know, did have surgical screws, and certainly did talk about kind of the history of his right knee issues.

ALJ: Okay. Does the record establish any other physical medically determinable impairments as of December 2008?

ATTY: He was also treating for chronic neck pain, and degenerative arthritis.

ALJ: When was that?

ATTY: Okay. The neck pain was also 3F, at 21, so that would have been in 2006, that it's mentioned. And, the cervical spondylosis is entered in as a diagnosis as of October 19, 2006. This is page 7F, at 120.

ALJ: Okay. But, I'm looking for something that established it as of the DLI, that shows that it continued at a severe level as of the DLI.

ATTY: Okay. So, since the DLI?

ALJ: Not since, as of the DLI.

ATTY: At the DLI.

ALJ: That he actually had a severe impairment at that time.

ATTY: Right, so that was one of his diagnosis in 2006. He did continue to treat for it since—

ALJ: Well, where's the continued treatment history? That's what I'm not seeing here.

ATTY: One treatment note in 2006, is 3F, at 21. He did also treat for the neck pain.

ALJ: But, we need treatment taking us to December 2008, to show it was severe then.

ATTY:

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