Gribensk v. Colvin

• Decision Date: 20 September 2016
• Docket Number: 8:15-cv-395
• Parties: RHONDA GRIBENSK, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of New York

RHONDA GRIBENSK, Plaintiff, v. CAROLYN W. COLVIN,Acting Commissioner of Social Security, Defendant.

8:15-cv-395

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 20, 2016

THOMAS J. McAVOY Senior United States District Judge

DECISION and ORDER

Plaintiff Rhonda Gribensk brought this suit under § 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), to review a final decision of the Commissioner of Social Security ("Commissioner") denying her application for Supplemental Security Income ("SSI") benefits. Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") is not supported by substantial evidence and is contrary to the applicable legal standards. Pursuant to Northern District of New York General Order No. 8, the Court proceeds as if both parties had accompanied their briefs with a motion for judgment on the pleadings.

I. PROCEDURAL HISTORY

Plaintiff protectively filed an application for SSI benefits on May 24, 2011 (Tr. 244-51, 302). The application was denied (Tr. 143-44, 148-53). Plaintiff requested a hearing before an Administrative Law Judge (ALJ) (Tr. 163-66). A hearing was adjourned on December 12, 2012 (Tr. 85-96) and held on July 8, 2013 (Tr. 97-128). On September 23, 2013, ALJ Arthur Patane issued a decision finding that Plaintiff was not disabled (Tr. 42-59). Plaintiff requested review by the Appeals Council (Tr. 40-41 ). The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied Plaintiff's administrative appeal on February 5, 2015 (Tr. 1-7). This action followed.

II. FACTS

The parties do not dispute the underlying facts of this case as set forth by Plaintiff in her memorandum of law. Accordingly, the Court assumes familiarity with these facts and will set forth only those facts material to the parties' arguments.

III. THE COMMISSIONER'S DECISION

Plaintiff protectively filed her SSI application on May 24, 2011 alleging disability since January 15, 2011 due to chronic obstructive pulmonary disease (COPD), depression, migraines, and abdominal pain (Tr. 302, 306). At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her application date of May 1, 2011 (Tr. 47). At step two, the ALJ found that Plaintiff had severe post-traumatic stress disorder (PTSD), depressive disorder, anxiety disorder, asthma, COPD, and recurrent migraines (Tr. 47- 50). The ALJ found that Plaintiff's alleged gynecological conditions, somatizations, and back and left leg problems were not severe impairments (Tr. 48-50).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1 (Tr. 50-52). The ALJ then found that Plaintiff retained the residual functional capacity to perform a range of light work as defined in 20 C.F.R. §416.967(b) in that she could remember, understand, and execute simple work tasks, maintain attention and concentration for such work tasks, respond appropriately to changes and stressors in concert with simple work tasks, and interact frequently with coworkers and supervisors, but she could have no contact with the general public, and she could have no concentrated exposure to respiratory irritants (Tr. 52-57).¹

At step four, the ALJ found that Plaintiff had no past relevant work (Tr. 57). The ALJ used medical-vocational Rule 202.17 as a framework to conclude that Plaintiff's residual functional capacity permitted her to perform a significant number of other jobs (Tr. 58-59). Therefore, the ALJ found that Plaintiff was not disabled within the meaning of the Act (Tr. 34).

Plaintiff challenges these findings in various respects. The Commissioner argues that the ALJ's decision is supported by substantial evidence and legally correct and, therefore, should be affirmed.

IV. STANDARD OF REVIEW

The Court's review of the Commissioner's determination is limited to two inquiries. See 42 U.S.C. § 405(g). First, the Court determines whether the Commissioner applied the correct legal standard. See Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990); Shane v. Chater, No. 96-CV-66, 1997 WL 426203, at *4 (N.D.N.Y July 16, 1997)(Pooler, J.)(citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). Second, the Court mustdetermine whether the Commissioner's findings are supported by substantial evidence in the administrative record. See Tejada, 167 F.3d at 773; Balsamo, 142 F.3d at 79; Cruz, 912 F.2d at 11; Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). A Commissioner's finding will be deemed conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g); see also Perez, 77 F.3d at 46; Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)("It is not the function of a reviewing court to determine de novo whether a Plaintiff is disabled. The [Commissioner's] findings of fact, if supported by substantial evidence, are binding.")(citations omitted). In the context of Social Security cases, substantial evidence consists of "more than a mere scintilla" and is measured by "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed.2d 842 (1971)(q uoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126 (1938)). Where the record supports disparate findings and provides adequate support for both the Plaintiff's and the Commissioner's positions, a reviewing court must accept the ALJ's factual determinations. See Quinones v. Chater, 117 F.3d 29, 36 (2d Cir. 1997)(citing Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)); Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). Although the reviewing court must give deference to the Commissioner's decision, a reviewing court must bear in mind that the Act is ultimately "'a remedial statute which must be 'liberally applied;' its intent is inclusion rather than exclusion.'" Vargas v. Sullivan, 898 F.2d 293, 296 (2d Cir. 1990)(quoting Rivera v. Schweiker, 717 F.2d 719, 723 (2d Cir. 1983)).

V. DISCUSSION

Plaintiff offers several grounds for challenging the opinion of the ALJ. For reasons explained below, the Court will address some but not all of these grounds.

a. Whether Plaintiff's mental impairments meet the requirement of § 12.04 and/or § 12.06 of the Listing of Impairments

Plaintiff argues that her mental impairments meet the requirements of §12.04 (Affective Disorders) and/or §12.06 (Anxiety Related Disorders) of the Listing of Impairments, 20 C.F.R. Part 404, Subpart P, Appendix 1. Pl. Mem. at 25-27. The Commissioner disagrees and asserts that the ALJ correctly evaluated Plaintiff's mental condition under the Social Security regulations and found that the requirements of neither § 12.04 nor § 12.06 were met or equaled. Def. Mem. at 5-7 (citing Tr. 50-52).

The impairments contained in the Listing of Impairments "are impairments acknowledged by the Secretary to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the 'listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995). Whether a claimant's impairment meets or equals a listed impairment is decided at the third step of the sequential evaluation. Id.

In addressing listed impairments, the applicable section of the Code of Federal Regulations provides:

Each listing, except 12.05 and 12.09, consists of a statement describing the disorder(s) addressed by the listing, paragraph A criteria (a set of medical findings), and paragraph B criteria (a set of impairment-related functional limitations). There are additional functional criteria (paragraph C criteria) in 12.02, 12.03, 12.04, and 12.06, discussed herein. We will assess the paragraph B criteria before we apply the paragraph C criteria. We will assess the paragraph C criteria only if we find that the paragraph B criteria are notsatisfied. We will find that you have a listed impairment if the diagnostic description in the introductory paragraph and the criteria of both paragraphs A and B (or A and C, when appropriate) of the listed impairment are satisfied.

20 C.F.R. § Pt. 404, Subpt. P, App. 1

As indicated above, the ALJ found that Plaintiff had severe post-traumatic stress disorder (PTSD), depressive disorder, anxiety disorder, asthma, COPD, and recurrent migraines (Tr. 47- 50). The Commissioner makes no argument that Plaintiff fails to satisfy the paragraph A criteria for §12.04 (Affective Disorders) and §12.06 (Anxiety Related Disorders).

To satisfy the paragraph B criteria for §12.04 and/or §12.06, Plaintiff must show that her mental impairment resulted in at least two of the following: 1. Marked restriction of activities of daily living; 2. Marked difficulties in maintaining social functioning; 3. Marked difficulties in maintaining concentration, persistence or pace; or 4. Repeated episodes of decompensation, each of extended duration. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.04(B), § 12.06(B). A "marked" limitation means "more than moderate, but less than extreme;" one that "interferes seriously with [a claimant's] ability to function independently, appropriately, effectively, and on a sustained basis." Gagnon v. Comm'r of Soc. Sec., 2016 WL 482068, at *4 (N.D.N.Y. Feb. 5, 2016)(quoting 20 C.F.R. pt. 404, subpt. P, app. 1, § 12.00(c)). "Repeated" episodes of decompensation, means "three episodes within [one] year, or an average of once every [four] months, each lasting for at least [two] weeks" or "more frequent episodes of shorter duration or less frequent episodes of longer duration" which are determined, in an exercise of judgment, to be "of equal severity." Id. (quoting 20 C.F.R....