Norst v. Comm'r of Soc. Sec., 7:13-CV-00912 (DNH/TWD)

• Decision Date: 08 September 2014
• Docket Number: 7:13-CV-00912 (DNH/TWD)
• Parties: HARRY NORST, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

HARRY NORST, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

7:13-CV-00912 (DNH/TWD)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

September 8, 2014

APPEARANCES:

Law Offices of Steven R. Dolson

Counsel for Plaintiff

126 North Salina Street, Suite 3B

Syracuse, New York 13202

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:

STEVEN R. DOLSON, ESQ.

PETER W. JEWITT, 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 David N. Hurd, United States District Judge, pursuant to 28 U.S.C. § 636(b) (2013) and Northern District of New York Local Rule 72.3(d). This case has proceeded in accordancewith 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. (Dkt. Nos. 8 and 10.)¹ Oral argument was not heard. For the reasons discussed below, it is recommended that the Commissioner's decision be affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is presently 62 years old with a birth date of November 1, 1951. (T. at 113.)² He completed one year of college. Id. at 146. Plaintiff's past jobs have included scheduling manager, paper machine operator, warehouse worker, dispatcher, and plumber/sprinkler fitter. Id. at 28-30, 42, 162-167, 195. Plaintiff alleges continuous disability since March 1, 2010, due to hearing loss and dizziness post craniotomy and spinal meningitis, asthma, depression, blood clots, and hiatal hernia. Id. at 145.

Plaintiff applied for disability insurance benefits on December 16, 2010. Id. at 113. The application was denied on March 14, 2011. Id. 55-62. Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on May 6, 2011. Id. at 63. The hearing was held on March 28, 2012. Id. at 24-44. On April 16, 2012, the ALJ issued a decision finding that Plaintiff was not disabled under Sections 216(i) and 223(d) of the Social Security Act. Id. at 11-18. The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on May 28, 2013. Id. at 1. Plaintiff commenced this action in theUnited States District Court for the Northern District of New York on July 25, 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) (2013). 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.

Id. at § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a) (2013)), 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 hehas 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 step two 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) (citing 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); 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

The ALJ made the following findings:

1. "The claimant meets the insured status requirements of the Social Security Act through December 31, 2015." (T. at 13.)

2. "The claimant has not engaged in substantial gainful activity since March 1, 2010, the alleged onset date [of disability] (20 CFR 404.1571, et seq.)." Id.

3. "The claimant has the following severe impairments: hearing loss in the left ear, status post craniotomy, and a history of vertigo (20 CFR 404.1520 (c))." Id.

4. "The claimant does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526)." Id. at 15.

5. After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform a full range of work at all exertional levels but with the following nonexertional limitations: he cannot balance, he must avoid working at unprotected heights, and he can tolerate no more than moderate (office-type) noises in a work environment." Id.

6. "The claimant is capable of performing past relevant work as a dispatcher (DOT# 249.167-014). This work does not require the performance of work-related activities precluded by claimant's residual functional capacity (20 CFR 404.1565)." Id. at 18.

7. "The claimant has not been under a disability, as defined in the Social Security Act from March 1, 2010, through the date of this decision (20 CFR 404.1520(f))." Id.

IV. THE PARTIES' CONTENTIONS

Plaintiff claims that the ALJ erred at step four of the sequential analysis by determining he is able to return to his past relevant work as a dispatcher (DOT # 249.167-014). The Selected Characteristics of Occupations ("SCO") lists the Dispatcher position as having a need for frequent use of...