Deronde v. Astrue

• Decision Date: 11 February 2013
• Docket Number: CIVIL ACTION NO. 7:11-998
• Parties: RAYMOND F. DERONDE, Plaintiff, v. MICHAEL J. ASTRUE, Commissioner of the Social Security Administration, Defendant.
• Court: U.S. District Court — Northern District of New York

RAYMOND F. DERONDE, Plaintiff, v. MICHAEL J. ASTRUE,Commissioner of the Social Security Administration, Defendant.

CIVIL ACTION NO. 7:11-998

UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

February 11, 2013

REPORT AND RECOMMENDATION

Plaintiff Raymond F. Deronde ("Deronde") brings this action under 42 U.S.C. § 405(g), seeking review of an adverse decision on his application for disability-based benefits under the Social Security Act. Complying with General Order # 18 (Dkt. No. 2), the parties join issues through competing briefs.¹

I. Background

Deronde applied for disability insurance ("DIB") and supplemental security income ("SSI") benefits claiming that he became disabled as of December 14, 2007, due to: diabetes, disc problems in his back, aneurysm, high blood pressure, high triglycerides, and rapid drops in blood pressure. (T. 154, 158).² Eventually, his application came on for an evidentiary hearing before anadministrative law judge, Marie Greener ("ALJ Greener").³ (T. 17, 37-72). ALJ Greener issued a partially favorable decision holding that Deronde was disabled as claimed between the dates of December 14, 2007, and March 24, 2009, but that his disability ended as of March 25, 2009, because his condition medically improved so that he could return to substantial gainful employment. (T. 17-29).

Deronde appealed to the Appeals Council of the Social Security Administration's Office of Hearings and Appeals (T. 12), which declined Deronde's request to review. (T. 1-3). This rendered ALJ Greener's opinion the final decision. See Sims v. Apfel, 530 U.S. 103, 107 (2000). Deronde timely instituted this case on August 22, 2011. (Dkt. No. 1).

II. Preliminary Discussion

This is an atypical case. ALJ Greener held that Deronde was disabled for a finite period (in social security parlance, a "closed period"⁴) ending on March 24, 2009, well before ALJ Greener's decision on August 13, 2010. Thus, in the same proceeding, ALJ Greener both awarded and terminated benefits.

The purpose of this preliminary discussion is to delineate governing principles that are especially pertinent to this ad hoc, almost aberrant case.

A. Eligibility for Benefits

DIB and SSI are two distinct programs under the Social Security Act.⁵ To receive benefits under these statutory provisions, applicants must prove that they are disabled. That term is defined as "inability 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." See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3).

The Commissioner utilizes a five-step evaluation procedure for adjudicating disability claims. See 20 C.F.R. §§ 404.1520(a), 416.920.⁶ It hasjudicial approval as a fair and just way for determining disability applications in conformity with the Social Security Act. See Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (citing Heckler, 461 U.S. at 461) (use of the sequential evaluation process "contribute[s] to the uniformity and efficiency of disability determinations")).

Under this analytical model, a claimant has the burden to prove a prima facie case of disability by securing favorable findings during the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998); Mimms v. Heckler, 750 F.2d 180, 185 (2d Cir. 1984). The burden then shifts to the Commissioner to rebut that case by showing at Step 5 that "there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); see also DeChirico, 134 F.3d at 1180; Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 20 C.F.R. §§ 404.1566, 416.966.

B. Cessation of Benefits

Termination of benefits can occur when medical improvement restores a recipient's ability to work. 42 U.S.C. 423(f); 20 C.F.R. §§ 404.1594, 416.994; see also Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2003); De Leon v. Secretary of Health & Human Servs., 734 F.2d 930, 937 (2d Cir. 1984) ("If the claimant's condition improves to the point where he or she is able to engage in substantial activity, benefits are no longer justified, and may be terminated by the [Commissioner]."). "Medical improvement" means "any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [he or she was] disabled or continued to be disabled." 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(f).

"[A] determination that there has been a decrease in medical severity must be based on changes (improvement) in the symptoms, signs and/or laboratory findings associated with [a claimant's] impairment(s)." 20 C.F.R. §§ 404.1594(b)(1), 416.994(b)(1)(i). And, before terminating previously- awarded benefits, "the SSA [Social Security Administration] must compare 'the current medical severity of th[e] impairment [ ] . . . to the medical severity of that impairment[ ] at th[e] time' of the most recent favorable medical decision." Veino, 312 F.3d at 586-87 (quoting 20 C.F.R. § 404.1594(b)(7) (alteration in original)).

To satisfy these requirements, the Commissioner employs another sequential analysis - this one involving as many as eight steps - to determine whether or when to terminate previously awarded benefits due to medical improvement.⁷ These steps are intended "[t]o assure that disability reviews are carried out in a uniform manner . . . and that any decisions to stop disability benefits are made objectively, neutrally and are fully documented." 20 C.F.R. §§ 404.1594(f), 416.994(b)(5).⁸

This analysis is employed most commonly at subsequent "continuing disability review" proceedings.⁹ Several circuits, however, hold that it is also appropriate for initial-application determinations resulting in benefits awards for closed periods. See Waters v. Barnhart, 276 F.3d 716, 719 (5th Cir. 2002); Shepherd v. Apfel, 184 F.3d 1196, 1200 (10th Cir. 1999); Pickett v. Bowen, 833 F.2d 288, 292-93 (11th Cir. 1987); Chrupcala v. Heckler, 829 F.2d 1269, 1274 (3d Cir. 1987); see also Burress v. Apfel, 141 F.3d 875, 879-80 (8th Cir. 1998); Jones v. Shalala, 10 F.3d 522 (7th Cir. 1993); Carbone v. Astrue, No. 08-CV-2376 (NGG), 2010 WL 3398960, at *13 (E.D.N.Y. Aug. 26, 2010); Chavis v. Astrue, No. 07-CV-0018 (LEK), 2010 WL 624039, at *5 (N.D.N.Y. Feb. 18, 2010); Hall v.Chater, No. 94-CV-1401 (FB), 1996 WL 118544 (E.D.N.Y. Mar. 8, 1996). The Second Circuit has not confirmed whether the eight-step process is appropriate for closed-period disability cases. Carbone, 2010 WL 3398960, at *13. District courts in the Second Circuit, however, note that it is an appropriate standard. Chavis, 2010 WL 624039, at *6; Abrams v. Astrue, 2008 WL 4239996, at *2 (W.D.N.Y. Sept. 12, 2008).

Under this analytical model, the burden rests with the Commissioner at every step. See 20 C.F.R. §§ 404.1594(f)(1)-(8), 416.994(b)(5)(i)-(vii); see also Chavis, 2010 WL 624039, at *4 ("medical improvement standard requires the Commissioner to meet a burden of showing, by substantial evidence, that a medical improvement has taken place in a claimant's ability to perform work activity") (internal citations omitted); Abrams, 2008 WL 4239996, at *2 ("The Commissioner has the burden of persuasion to demonstrate medical improvement, in accordance with the eight-step sequential evaluation process set forth in the Regulations at 20 C.F.R. § 404.1594(f)."); Suriel v. Commissioner of Soc. Sec., 2006 WL 2516429, at*4 (E.D.N.Y. Aug. 29, 2006) ("The Commissioner has the burden of persuasion to prove that the individual is currently able to engage in substantial gainful activity.").

C. Overlapping Criteria

Obviously, the 5-Step analysis (disability) and the 8-Step analysis (medical improvement) are distinct with differing objectives and dissimilar burdens of proof. Nonetheless, they share certain core administrative concepts, and involve common challenges. In either scenario, an evidentiary record must be developed fully, and credibility choices must be made. Both contemplate assessment of a claimant's "residual functional capacity." And, in each instance, an administrative adjudicator may (in appropriate circumstances) takeadministrative notice of disability vel non by adopting and applying findings published in "Medical-Vocational Guidelines," commonly called "the grids." See Section II.C.4., infra.

The remainder of this section delineates principles governing these common issues pertinent to judicial review in this particular case.

1. Developing a Full Record

"Social Security disability determinations are investigatory, or inquisitorial, rather than adversarial." Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009) (internal quotation marks omitted). "It is the ALJ's duty to investigate and develop the facts and develop the arguments both for and against the granting [or continuation] of benefits." Id. (internal quotation marks omitted); accord Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999). In this regard, an ALJ is required to develop the medical record:

In making any determination with respect to whether an individual is under a disability or continues to be under a disability, the Commissioner of Social Security shall consider all evidence available in such individual's case record, and shall develop a complete medical history of at least the preceding twelve months for any case in which a determination is made that the individual is not under a disability. In making any determination the Commissioner of Social Security shall make every reasonable effort to obtain from the individual's treating physician (or other treating health care provider) all medical evidence, including diagnostic tests, necessary in order to properly make such determination, prior to evaluating medical evidence obtained from any other source on a consultative basis.

42 U.S.C.A. § 423(d)(5)(B) (emphasis added).

"Accordingly, an...