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Legg v. Astrue

June 2, 2008

SUZANNE S. LEGG, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff Suzanne S. Legg challenges an Administrative Law Judge's ("ALJ") determination that she is not entitled to supplemental security income benefits ("SSI"), or disability insurance benefits ("DIB"), under the Social Security Act ("the Act"). Plaintiff alleges she has been disabled since September 6, 2001, because of heart disease, depression, and substance addiction. Plaintiff hasmet the disability insured status requirements of the Act at all times pertinent to this claim.

Procedural History

2. Plaintiff filed an application for SSI and DIB on September 26, 2003, alleging an onset of disability of September 6, 2001. Her application was denied initially and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ. See 65 Fed. Reg. 81553 (Dec. 26, 2000). Plaintiff filed a timely request for a hearing before an ALJ, and on July 27, 2004, Plaintiff, accompanied by her attorney, appeared and testified before ALJ Richard R. Pietrowicz. Also testifying at the hearing were Richard Legg, Plaintiff's husband, and Esperanza DiStefano, a Vocational Expert (VE). The ALJ considered the case de novo and on November 19, 2004, issued a decision finding that Plaintiff was not disabled. Plaintiff requested the Appeals Council review the ALJ's decision. On June 3, 2005, the Appeals Council denied Plaintiff's request for review.

3. On February 2, 2006, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant SSI or DIB benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on September 16, 2006, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted Plaintiff's Brief requesting that the Commissioner reverse and remand the ALJ's decision on October 31, 2006. On March 28, 2007, Defendant filed a Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.

Discussion

Legal Standard and Scope of Review

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "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). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining 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). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged 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 active-ties. If the claimant has such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is 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; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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 could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff met the non-disability requirements for a period of disability and Disability Insurance Benefits set forth in Section 216(i) of the Social Security Act and is insured for benefits through the date of this decision (R. at 26);*fn3 (2) Plaintiff has not engaged in substantial gainful activity since the alleged onset of disability (R. at 26); (3) Plaintiff's impairments are considered "severe" based on the requirements in the Regulations 20 C.F.R. §§ 404.1520 and 416.920 (R. at 26); (4) These medically determinable impairments do not meet or equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 (R. at 26); (5) Plaintiff's allegations regarding her limitations are not totally credible for the reasons set forth in the body of the decision (R. at 26); (6) Plaintiff retains the residual functional capacity to lift and carry 20 pounds occasionally, 10 pounds frequently; stand and walk 6 hours in an eight-hour workday; sit 6 hours in an eight-hour workday; with work performed in a hazard-free and temperature-controlled environment; and tasks being simple and repetitive with minimal social contact (R. at 26); (7) Plaintiff is unable to perform any of her past relevant work (20 C.F.R. §§ 404.1565 and 416.965) (R. at 26); (8) Plaintiff is a "younger individual" (20 C.F.R. §§ 404.1563 and 416.963) (R. at 26); (9) Plaintiff has a "limited 11th grade education" (20 C.F.R §§ 404.1564 and 416.964) (R. at 26); (10) Plaintiff has no transferable skills from any past relevant work to her residual functional capacity as determined herein (20 C.F.R. §§ 404.1568 and 416.968) (R. at 26); (11) Plaintiff has the residual functional capacity to perform a significant range of light work (20 C.F.R. §§ 404.1567 and 416.967) (R. at 26); (12) Although Plaintiff's additional limitations do not allow her to perform the full range of light work, using Medical-Vocational Rule 202.18 as a framework for decision-making, there are a significant number of jobs in the national economy that she could perform. Examples of such jobs include work as an order clerk, messenger, and mail clerk (R. at 26); and (13) Plaintiff was not under a "disability," as defined in the Social Security Act, at any time through the date of this decision (20 C.F.R. §§ 404.1520 and 416.920) (R. at 26). Ultimately, the ALJ determined Plaintiff was not entitled supplemental security income benefits, or to a period of disability and disability insurance benefits, as set forth in sections 216(i) and 223(d) of the Social Security Act (R. at 27).

Plaintiff's Allegations

10. Plaintiff alleges four challenges to the Commissioner's decision that Plaintiff was not disabled during the relevant time frame for her claim. See Plaintiff's Brief, pp. 1-2). Of Plaintiff's four challenges, two allege errors made by the Appeals Council in failing to review and vacate the ALJ's decision, and in failing to remand the matter for further administrative proceedings. Id. Plaintiff's civil action before the Court may challenge only the determination of the ALJ that Plaintiff was not under a disability during the relevant time frame, and not the failure of the Appeals Council to remand the case for further administrative proceedings. See 42 U.S.C. § 405(g). Plaintiff's civil action must necessarily be directed at the decision of the ALJ, and not the failure of the Appeals Council to remand for further administrative proceedings. Id. Thus, where appropriate, the Court will consider each of Plaintiff's claims as though they had been properly framed with respect to the decision of the ALJ.

Plaintiff's third challenge to the final decision of the Commissioner asserts that the Appeals Council failed to review the ALJ's decision based upon what she considers to be new and relevant evidence specific and material to the time period of her claim. The regulations provide that the Appeals Council will consider new and material evidence only whenit relates to the period on or before the date of the ALJ's decision. See 20 C.F.R. §§ 404.970(b) and 416.1470(b); see also Accord Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). Plaintiff's fourth challenge to the final decision of the Commissioner is that the hearing transcript is incomplete because the transcriber marked sections of the hearing transcript as "inaudible," apparently because of the poor quality of the audiotape.

Each of Plaintiff's challenges will be discussed in sequence below. However, prior to addressing Plaintiff's challenges, the Court will present a summary of her extensive medical history, as an understanding of this history is essential to understanding the decision of the Court.

Plaintiff's Medical History During to the Time Frame for Her Claim

11. On September 4, 2001, Plaintiff was admitted to Benedictine Hospital by Dr. Amin Elashker complaining of recurring episodes of chest and arm pain (R. at 158-159). Her physical examination was essentially unremarkable; however, her EKG showed T-wave inversion on the precordial leads, with no other changes (R. at 159). Dr. Elashker recommended emergency treatment with nitro paste, beta blockers, and heparin, along with a full cardiology evaluation. Id.

Plaintiff underwent a full cardiology examination by consulting physician, Dr. Dineshkant Parikh, on September 4, 2001 (R. at 160-161). Once again, Plaintiff's physical examination was unremarkable, although her EKG showed non-specific T-wave abnormality with a regular sinus rhythm (R. at 161). Dr. Parikh's impression was that Plaintiff had probable non-cardiac chest pain, but recommended an echocardiogram and Doppler study. Id.

Plaintiff underwent an echocardiogram and Doppler study on September 5, 2001 (R. at 162-164). While these tests did not reveal significant heart wall motion abnormalities, Plaintiff's EKG developed anterolateral STT-wave changes during her hospitalization (R. at 165). Consulting cardiologist, Dr. Eric Roccario, determined Plaintiff had been ruled-in for an anterolateral wall, non-Q wave myocardial infarction,*fn4 and recommended cardiac catheterization (R. at 165-166).

On September 6, 2001, Plaintiff underwent left heart catheterization, with a coronary angiogram, and a left ventriculogram (R. at 167-169). Based on the results of this examination, Dr. Roccario assessed Plaintiff with three vessel non-obstructive coronary artery disease, with irregularities in the inner coating of the vessels, and mildly reduced left ventricular function (R. at 169). Dr. Rocarrio suggested Plaintiff's medical therapy be intensified. Id.

Plaintiff followed up with her new treating cardiologist, Dr. Gary Cohen, on September 21, 2001 (R. at 370-371). Plaintiff's physical examination was unremarkable, and Dr. Cohen opined her myocardial infarction was probably due to spasm (R. at 371). He revised Plaintiff's heart medications and strongly recommended she stop smoking because, Dr. Cohen noted, "this is one of the main causes of spasm." Id.

On January 14, 2002, Plaintiff attended her regular follow-up visit with Dr. Cohen (R. at 268-369). Since her last visit, Plaintiff reported she had had three episodes of chest pain requiring nitroglycerin treatment (R. at 368). Plaintiff's physical examination was normal, although the doctor noted her blood pressure was elevated. Id. He also recorded that in addition to taking Tiazac and Altace for high blood pressure, Lipitor for high cholesterol, and Indur for angina symptoms, Plaintiff was also taking Ambien, Ativan, and Pepcid. Id.

Plaintiff was examined by Dr. Cohen again on April 26, 2002 (R. at 367). She reported occasional chest pain, but her physical examination was otherwise normal. Id.

On September 3, 2002, Plaintiff was examined by her primary care physician, Dr. Susan Allen (R. at 177). Plaintiff complained of back pain, and Dr. Allen recommended 30 days of treatment with Lortab. Id.

Plaintiff returned for a follow-up visit with Dr. Cohen on September 6, 2002 (R. at 363-364). He noted she was being treated for back problems by a different physician, but found she was "without cardiac symptoms of chest discomfort, palpitations, syncope, pedal edema, orthopnea, or paroxysmal nocturnal dyspnea" (R. at 363). Plaintiff reported she experienced periodic shortness of breath and lightheadedness. Id. Her physical examination was otherwise unremarkable (R. at 363-364). Once again, Dr. Cohen recommended Plaintiff stop smoking (R. at 364).

On September 13, 2002, Plaintiff was examined by Dr. Allen (R. at 176). Plaintiff wanted to discuss the results of a stress test she had taken earlier in the day, and also wanted the doctor to refill a prescription for Ativan. Id. Dr. Allen agreed to refill the Ativan prescription for one month only, until Plaintiff could meet with her psychiatrist. Id. The doctor advised Plaintiff she would not refill the prescription again after October 15, 2002. Id. Dr. Cohen, who examined the results of Plaintiff's stress test, reported her stress test was negative at 90 percent of maximum heart rate (R. at 331).

Plaintiff contacted Dr. Allen's office on October 17, 2002, with an urgent request for refills of Ativan and Ambien (R. at 174). She advised Dr. Allen that her psychiatrist was out of town and could not order the refill. Id. Dr. Allen told Plaintiff to contact the back-up psychiatrist, and if she could not contact that physician, to go to the emergency room. Id. Dr. Allen refused to prescribe any additional refills for Ativan. Id.

On October 17, 2002, Plaintiff also contacted Dr. Cohen with an urgent request for treatment (R. at 326-327). She complained of palpitations, dizziness, and shortness of breath, and told the doctor these symptoms abated when she took Ativan (R. at 326). Plaintiff's physical examination was unremarkable, and Dr. Cohen opined Plaintiff's symptoms might be related to anxiety or perimenopause (R. at 327). Dr. Cohen recommended Plaintiff continue with her current medications, and did not prescribe Ativan. Id.

Plaintiff was examined by her primary treating physician, Dr. Allen, on November 7, 2002 (R. at 173). Once again, Plaintiff demanded Ativan, and again, the doctor refused to refill the prescription. Id. Dr. Allen advised Plaintiff to "see a psychiatrist immediately." Id.

On November 26, 2002, Plaintiff underwent a screening visit for admission to an outpatient therapy program at Greene County Mental Health Center (R. at 408). Plaintiff complained of depression that included symptoms of daily crying spells, irritability, anger, and self-isolation. Id. Upon examination, Plaintiff was alert, oriented, non-psychotic, and non-suicidal. Id. She reported to the therapist she had not used cocaine since October 2001, and had not consumed alcohol since May 2002. Id. She reported to the therapist that she had tried Effexor and Zyprexa, but these medications did not ...


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