Cruz v. Colvin

• Decision Date: 05 September 2014
• Docket Number: 3:13-CV-00723 (MAD/TWD)
• Parties: JACQUELINE CRUZ, Plaintiff, v. CAROLYN COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

JACQUELINE CRUZ, Plaintiff, v. CAROLYN COLVIN,ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

3:13-CV-00723 (MAD/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 5, 2014

APPEARANCES:

LACHMAN & GORTON

Counsel for Plaintiff

1500 Main Street

PO Box 89

Endicott, NY 13761-0089

HON. RICHARD S. HARTUNIAN

United States Attorney for the

Northern District of New York

Counsel for Defendant

Room 218

James T. Foley U.S. Courthouse

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.

ELIZABETH ROTHSTEIN, ESQ.

Special Assistant United States Attorney

STEPHEN P. CONTE, ESQ.

Chief Counsel, Region II

THÉRÈSE WILEY DANCKS, United States Magistrate Judge

REPORT AND RECOMMENDATION

This matter was referred to the undersigned for report and recommendation by the Honorable Mae A. D'Agostino, United States District Judge, pursuant to 28 U.S.C. § 636(b) andNorthern District of New York Local Rule 72.3. This case has proceeded in accordance with General Order 18 of this Court which sets forth the 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, it is recommended that the decision of the Commissioner be affirmed and the Complaint (Dkt. No. 1) be dismissed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is presently 26 years old. (T. at 32.¹) She completed 11^th grade and, at the time of her hearing on December 20, 2011, she was attending classes two days per week to obtain her GED. (T. at 34, 43.) She worked as an assembler at a Felchar Manufacturing and as a home attendant for elderly clients at Southern Tier Independence Center. (T. at 34-35.) Plaintiff alleges disability due to hearing loss, migraine headaches, low back pain, and hip pain. (T. at 37-40, 140-41.)

Plaintiff's application for disability insurance benefits and SSI is dated August 9, 2010. (T. at 110.) The application was denied on October 25, 2010. (T. at 58.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (T. at 64.) The hearing was held on December 20, 2011. (T. at 29.) On January 5, 2012, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 11.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on May 31, 2013. (T. at 1.) Plaintiff commenced this action on June 21, 2013. (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) (2006). 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.

§ 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a) (2012)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920 (2012). "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).

At the first step, the agency will find nondisability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits the claimant's physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive steptwo is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. [20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f), 416.9630(c).

Thomas, 540 U.S. at 24-25 (footnotes omitted).

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 thedetermination 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); 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, 305 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). However, 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. Blalock v. Richardson, 483 F.2d 773, 775 (4th Cir. 1972); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

III. THE ALJ'S DECISION

Here, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since July 1, 2010, her alleged onset date. (T. at 16.) At step two, the ALJ found that Plaintiff's profound right-sided hearing loss was a "severe" impairment. (T. at 16-19.) At step three, the ALJ found that Plaintiff's hearing impairment, although severe, did not individually orin combination meet or equal any of the criteria of a section of the Listing of Impairments ("Listings"), set forth at 20 C.F.R. Part 404, Subpart P, Appendix 1. (T. at 19.) Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and concluded that she retained the ability to lift, carry, push, and pull 20 pounds occasionally and 10 pounds frequently; stand and walk for a total of six hours; sit for a total of six hours; she should wear protective noise protection when exposed to greater than 75 decibels ("dB") continuously, and her instructions and interface with others should be given so that she could see the speaker's face. (T. at 19-22.) At step four, the ALJ concluded that Plaintiff did not have past relevant work. (T. at 22.) At step five, the ALJ concluded that Plaintiff was not disabled because jobs existed in significant numbers in the national economy that Plaintiff could perform. (T. 22-24.) Thus, the ALJ denied Plaintiff's claim for disability benefits. (T. at 24.)

IV. THE PARTIES' CONTENTIONS

Plaintiff claims that the ALJ erred by: (1) failing to find Plaintiff's scoliosis, back pain, and migraines/headaches as severe impairments; (2) failing to properly establish Plaintiff's RFC which includes a failure to follow the treating physician rule and a failure to properly assess Plaintiff's credibility; and (3) failing to obtain the testimony of a vocational expert. (Dkt. No. 13.)

Defendant contends that the ALJ's decision applied the correct legal standards and is supported by substantial evidence and thus should be...