Wilbon v. Colvin, Case # 15-CV-756-FPG
| Decision Date | 28 September 2016 |
| Docket Number | Case # 15-CV-756-FPG |
| Parties | TABATHA C. WILBON, Plaintiff, v. CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant. |
| Court | U.S. District Court — Western District of New York |
Plaintiff Tabatha C. Wilbon ("Plaintiff") brings this action to challenge the final decision of the Acting Commissioner of Social Security ("the Commissioner") denying Plaintiff's application for disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act"). ECF No. 1. The Court has jurisdiction over this matter under 42 U.S.C. § 405(g).
Both parties have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 9, 10. For the reasons stated below, Plaintiff's motion (ECF No. 9) is GRANTED, the Commissioner's motion (ECF No. 10) is DENIED, and this matter is REMANDED for further administrative proceedings.
On April 2, 2012, Plaintiff protectively filed an application for DIB under the Act. Tr.1 13. Plaintiff alleges disability since August 1, 2011 due to diabetes, high blood pressure, sickle cell retinopathy, bilateral vision loss, depression, anxiety, bilateral knee arthritis, aneurysms inboth eyes, and severe headaches. Tr. 220. After Plaintiff's application was denied at the initial level, a hearing was held before Administrative Law Judge Robert T. Harvey ("the ALJ") on February 6, 2014. Tr. 31-66. At the hearing, Plaintiff appeared with her attorney Louis Schwartz and testified. Id. Josiah Pearson, a vocational expert ("the VE"), also testified. Id. On April 16, 2014, after considering Plaintiff's application de novo, the ALJ issued a decision finding that Plaintiff is not disabled within the meaning of the Act. Tr. 13-26. That decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on August 12, 2015. Tr. 1-5. Plaintiff then filed this civil action. ECF No. 1.
The Act defines "disability" as "the inability to do 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." 42 U.S.C. § 423(d). Social Security Administration ("SSA") regulations outline the five-step process used to determine whether a claimant is "disabled" under the Act. 20 C.F.R. § 404.1520.
First, the ALJ must determine whether the claimant is engaged in any substantial gainful work activity. 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. Id. If not, the ALJ proceeds to step two and determines whether the claimant has a "severe" impairment or combination of impairments. 20 C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the claimant is not disabled. Id. If the claimant does, the analysis proceeds to step three.
At step three, the ALJ must determine whether the claimant has an impairment (or combination of impairments) that meets or medically equals one of the conditions listed in 20C.F.R. Part 404, Subpart P, Appendix 1 of the regulations ("the Listings"). If the impairment does meet or equal a condition in the Listings and the durational requirement (20 C.F.R. § 404.1509) is satisfied, then the claimant is disabled. 20 C.F.R. § 404.1520(d). If it does not, the ALJ will make a finding regarding the claimant's residual functional capacity ("RFC"), which is an assessment of what the claimant can still do despite his or her limitations. 20 C.F.R. § 404.1545(a)(1). The RFC is then used at steps four and five. 20 C.F.R. § 404.1520(e).
The fourth inquiry is whether, given the claimant's RFC, the claimant can still perform his or her past relevant work. 20 C.F.R. § 404.1520(f). If the claimant can perform his or her past relevant work, the claimant is not disabled. Id. If he or she cannot, the ALJ proceeds to step five.
At the fifth and final step, the ALJ must consider the claimant's RFC as well as his or her age, education, and work experience to determine whether the claimant can make an adjustment to other work for which there are a significant number of jobs in the national economy. 20 C.F.R. § 404.1520(g). If the claimant can make an adjustment to other work, then the claimant is not disabled. Id. If the claimant cannot make that adjustment, then the claimant is disabled. Id.
The burden of proving the first four elements is on the claimant, and the burden of proving the fifth element is on the Commissioner. Bush v. Shalala, 94 F.3d 40, 44-45 (2d Cir. 1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
District Court review of the Commissioner's decision is not de novo. See, e.g., Richardson v. Barnhart, 443 F. Supp. 2d 411, 416 (W.D.N.Y. 2006) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). The Commissioner's decision may only be set aside if it is not supported by "substantial evidence" or is the product of legal error. See, e.g., Miller v. Colvin, 85 F. Supp. 3d 742, 749 (W.D.N.Y. 2015); Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)). Substantial evidence means "more than a mere scintilla" and is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Burgess, 537 F.3d at 127 (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)) (internal quotation marks omitted).
In this case, the ALJ analyzed Plaintiff's claim for benefits under the process described above. At step one, the ALJ found that Plaintiff has not engaged in substantial gainful activity since August 1, 2011, her alleged onset date. Tr. 14. At step two, the ALJ found that Plaintiff has the following severe impairments: "obesity, diabetes, diabetic proliferative retinopathy, adjustment disorder with anxiety and depression." Id. At step three, the ALJ found that Plaintiff does not have an impairment or combination of impairments that meets or medically equals a Listings impairment. Tr. 15-18.
The ALJ then determined Plaintiff's RFC. Tr. 18-24. Specifically, the ALJ found that Plaintiff could lift, carry, push, or pull 20 pounds occasionally and 10 pounds frequently. Tr. 18. The ALJ also found that Plaintiff could sit two hours in an eight-hour workday and stand or walk six hours in an eight-hour workday. Id. Although the ALJ found that Plaintiff retains the ability to perform the basic mental demands of unskilled work, he also noted that Plaintiff "would have occasional limitations in the ability to understand, remember and carry out detailed instructions." Id. Lastly, the ALJ found that Plaintiff "has occasional limitations in near acuity and peripheral vision." Id.
At step four, the ALJ found that Plaintiff's RFC renders her unable to perform her past relevant work as a receptionist and as a secretary. Tr. 24.
At step five, the ALJ relied on the VE's testimony and found that considering Plaintiff's age, education, work experience, and RFC, Plaintiff is capable of making a successful adjustment to other work that exists in significant numbers in the national economy.2 Tr. 25-26. Accordingly, the ALJ found that Plaintiff is not disabled under the Act. Id.
Plaintiff argues that this case should be remanded to the Commissioner for reconsideration in light of new evidence.3 ECF No. 9-1, at 16-19. First, Plaintiff submits two letters from radiologist Lawrence Liebman, M.D. ("Dr. Liebman") regarding x-rays of Plaintiff's lumbosacral spine and left knee that were performed on October 28, 2015. ECF No. 9-2. Second, Plaintiff points to reports dated May 16, 2014, July 18, 2014, and July 22, 2014 from eye surgeon Martin Boscarino, M.D. ("Dr. Boscarino"), who performed surgery on Plaintiff's left eye on July 21, 2014. Tr. 71-76, 85-86, 87-91. Although the x-rays do not provide a sufficient basis for remand, the Court agrees with Plaintiff that this case should be remanded for consideration of the reports from Dr. Boscarino.
Pursuant to 42 U.S.C. § 405(g), a reviewing court "may at any time order additional evidence to be taken before the Commissioner of Social Security, but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding."
In Tirado v. Bowen, 842 F.2d 595, 597 (1988), the Second Circuit elaborated on this language and held that a claimant seeking remand for consideration of additional evidence must satisfy a three-part test. First, the claimant must show that the proffered evidence is "new andnot merely cumulative of what is already in the record." Id. Second, the claimant must show that the evidence is "material." Id. In this context, the concept of materiality requires both that the evidence is relevant to the time period for which benefits were denied and that there is a reasonable possibility that the evidence would have affected the outcome of the claimant's application. Id. Third, the claimant must show "good cause" for failing to present the evidence earlier. Id.
Here, Plaintiff submitted two letters from Dr. Liebman regarding x-rays of Plaintiff's lumbosacral spine and left knee that were performed on October 28, 2015. ECF No. 9-2. In the first letter, Dr. Liebman wrote that the x-ray of Plaintiff's lumbosacral spine shows "mild degenerative spondylosis" but that there was no compression fracture. Id. at 2. Dr. Liebman also noted that there were "degenerative changes." Id. In the second letter, Dr. Liebman wrote that the x-ray of Plaintiff's left knee does not demonstrate any evidence of "fracture, dislocation or destructive bony lesion," but that "[t]here is moderate medial and mild patellofemoral DJD (joint space narrowing and osteophyte...
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