Patrick J. v. Comm'r of Soc. Sec.

• Decision Date: 22 February 2019
• Docket Number: 5:17-CV-1377 (ATB)
• Parties: PATRICK J., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
• Court: U.S. District Court — Northern District of New York

PATRICK J.¹, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

5:17-CV-1377 (ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

February 22, 2019

KIMBERLY A. SLIMBAUGH, ESQ., for Plaintiff

REBECCA H. ESTELLE, Special Asst. U.S. Attorney for Defendant

ANDREW T. BAXTER, U.S. Magistrate Judge

MEMORANDUM-DECISION and ORDER

This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).

I. PROCEDURAL HISTORY

Plaintiff protectively filed an application for Disability Insurance Benefits ("DIB") on October 30, 2014, alleging disability beginning April 18, 2013. (Administrative Transcript ("T") at 15, 169-70). His application was denied initially on February 27, 2015. (T. 69-89). Administrative Law Judge ("ALJ") Kenneth Theurer conducted a hearing on January 4, 2017, at which plaintiff and Vocational Expert ("VE" ) Roxanne Benoit testified. (T. 28-68).

In a decision dated February 7, 2017, the ALJ found that plaintiff was not disabled. (T. 15-23). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on November 15, 2017. (T. 1-6).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he 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). 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.

42 U.S.C. § 1382c(a)(3)(B).

The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience . . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. 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 supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review " - even more so than the 'clearly erroneous standard.'" Brault, 683 F.3d at 448.

"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 on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "'pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

As of the date of the January 4, 2017 administrative hearing, plaintiff was 51 years old. (T. 169). He resided with his mother, his adult son and daughter, and his granddaughter. (T. 34-35, 43). Plaintiff graduated high school in regular education classes, and attended several years of college without obtaining a degree. (T. 35-36, 216).

After completing military service, plaintiff held a series of jobs, including equipment installer for a telephone company and maintenance manager for a shopping mall. (T. 38-42, 204-211, 241). His most recent employment was as a stock clerk for a large retailer. (T. 38). This work included unloading trucks, moving pallets, and stocking shelves. (Id.) He left this position in 2013 after a workplace injury that required neck surgery. (T. 36, 48-49).

Prior to his workplace injury, plaintiff had a lengthy history of back pain that required multiple surgeries and the installation of a dorsal column stimulator.² (T. 604, 778). After his neck injury, plaintiff experienced pain that radiated across his shoulders and down into both hands. (T. 778). In April 2013, he had surgery to fuse the C5 and C6 vertebrae. (T. 364-65). After the surgery, plaintiff still experienced pain and numbness in his neck and back, and headaches that were attributed to the neck pain. (T. 48-49). He testified that he had not operated a motor vehicle since the injury, and had difficulty lifting, reaching, and moving his head upwards or from side to side. (T. 48-49).

The ALJ's decision provides a detailed statement of the medical and other evidence of record. (T. 17-21). Rather than reciting this evidence at the outset, the court will discuss the relevant details below, as necessary to address the issues raised by plaintiff.

IV. THE ALJ'S DECISION

After finding that plaintiff met the insured status requirements through December 31, 2018, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date of April 18, 2013. (T. 17). At step two of the sequential evaluation, the ALJ found that plaintiff's back and neck impairments were severe. (T. 17-18). He also found that plaintiff's plaintiff's headaches and obesity did not constitute severe impairments. (T. 18). At the third step, the ALJ determined that plaintiff's impairments or combination thereof did not meet or medically equal the criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. (T. 18).

The ALJ found at step four of the analysis that plaintiff could perform less than the full range of light work. (T. 18-21). Specifically, plaintiff could never climb ladders, ropes, or scaffolds, and could only occasionally climb ramps or stairs. (T. 18). He could rarely reach overhead, but could occasionally balance, stoop, kneel, crouch, and crawl. (Id.) The ALJ also found that plaintiff could only occasionally turn his head from left to right, but could move his head vertically and rotate his torso. (Id.) He further found that plaintiff could not perform jobs that required more than occasional fine manipulation, such as repetitive hand-finger actions, fingering, or feeling with his left, non-dominant hand. (Id.) Plaintiff retained the ability to grasp, hold, turn, raise, and lower objects with either hand. (Id.)

In making the RFC determination, the ALJ stated that he considered all of the plaintiff's symptoms, and the extent to which those symptoms could "reasonably be accepted as consistent with the objective medical evidence and other evidence, based on the requirements of 20 C.F.R. 404.1529" and Social Security Ruling ("SSR") 96-4p. (Id.) Finally, the ALJ stated that he considered opinion evidence pursuant to 20 C.F.R. § 404.1527 and SSRs 96-2p, 96-5p, 96-6p, and 06-3p. (T. 18-19.)

The ALJ also found that plaintiff's medically determinable impairments could reasonably be expected to cause his alleged symptoms, but that plaintiff's statements regarding the intensity, persistence, and limiting effects of those symptoms were not entirely consistent with the record evidence. (T. 19). The ALJ then determined that plaintiff was unable to...