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Duross v. Commissioner of Social Security

September 11, 2008


The opinion of the court was delivered by: Randolph F. Treece United States Magistrate Judge


In this action, Plaintiff Barbara A. Duross moves, pursuant to 42 U.S.C. § 405(g), for a review of a decision by the Commissioner of Social Security denying her application for disability insurance benefits (DIB).*fn2 Based upon the following discussion, this Court reverses and remands the Commissioner's decision denying Social Security benefits.


A. Facts

The Court adopts the facts set forth in Plaintiff's "Statement of the Appeal," which was filed alongside Plaintiff's Brief,*fn3 with the exception of any inferences or arguments contained therein. Dkt. Nos. 7, Pl.'s Br., & 7-2, Pl.'s Statement of the Appeal; see also Dkt. No. 14, Def.'s Br., at p. 2 (adopting Plaintiff's Statement of Facts). Barbara A. Duross, born in 1955, was forty-seven years old at the time she filed for disability benefits. Dkt. No. 6, Admin. Tr. (hereinafter "Tr.") at p. 50. Plaintiff has her high school degree. Id. at p. 72. Her past work experience includes working as an activity aide and certified nursing assistant in a nursing home; she also has worked as a cashier. Id. at p. 411. Plaintiff alleges that she became unable to work on February 13, 2002, due to a weak back and arms, a high susceptibility to germs, low resistance, pain, a breathing condition, coughing, and mental and emotional difficulties. Id. at pp. 66 & 73.

B. Procedural History

On January 30, 2003, Plaintiff filed an application for disability insurance benefits alleging a disability onset date of February 13, 2002. Tr. at pp. 50-52, 62-64, & 66. The application was denied initially on June 25, 2003. Id. at pp. 35 & 37-40. Plaintiff requested a Hearing which was held before Administrative Law Judge ("ALJ") Richard Zack on August 4, 2004. Id. at pp. 406-29. On September 30, 2004, ALJ Zack found that Plaintiff was not under a disability. Id. at pp. 12-19. On February 18, 2005, the Appeals Council concluded that there was no basis under the Regulations to grant Plaintiff's request for review, thus rendering the ALJ's decision the final determination of the Commissioner. Id. at pp. 4-7. Exhausting all of her options for review through the Social Security Administration's tribunals, Plaintiff now brings this appeal.


A. Standard of Review

Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to employ a de novo review, but rather to discern whether substantial evidence supports the Commissioner's findings and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence is "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).

The ALJ must set forth the crucial factors supporting the decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's findings are supported by substantial evidence, the court may not interject its interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988); 42 U.S.C. § 405(g). Where the weight of the evidence, however, does not meet the requirement for substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ's decision may not be affirmed. Johnson v. Bowen, 817 F.2d at 986.

B. Determination of Disability

To be considered disabled within the meaning of the Social Security Act, a plaintiff must establish an "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A). Furthermore, the claimant's physical or mental impairments must be of such severity as to prevent engagement in any kind of substantial gainful work which exists in the national economy. Id. at § 423(d)(2)(A).

In determining whether a claimant is disabled, the Commissioner follows a five-step analysis set forth in the Social Security Administration Regulations. 20 C.F.R. § 404.1520. At Step One, the Commissioner "considers whether the claimant is currently engaged in gainful activity." Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in substantial gainful activity, he or she is not disabled and the inquiry ends. 20 C.F.R. § 404.1520(b). If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to Step Two and assesses whether the claimant suffers from a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. Id. at § 404.1520(c). If the claimant suffers from a severe impairment, the Commissioner considers at Step Three whether such impairment(s) meets or equals an impairment listed in Appendix 1, in Part 404, Subpart P of the Regulations. Id. at § 404.1520(d). The Commissioner makes this assessment without considering vocational factors such as age, education, and work experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant has such an impairment the inquiry ceases as he or she is presumed to be disabled and unable to perform substantial gainful activity. Id. If the claimant's impairment(s) does not meet or equal the listed impairments, the Commissioner determines the claimant's residual functional capacity (RFC),*fn4 which is utilized in both Steps Four and Five. 20 C.F.R. § 404.1520(e). If at Step Four, the Commissioner determines that the claimant cannot perform his or her past work, then at Step Five, the Commissioner considers whether the claimant can perform any other work available in the national economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. § 404.1520(f).

Initially, the burden of proof lies with the claimant to show that his or her impairment(s) prevents a return to previous employment (Steps One through Four). Berry v. Schweiker, 675 F.2d at 467. If the claimant meets that burden, the burden then shifts to the Commissioner at Step Five to establish, with specific reference to medical evidence, that the claimant's physical and/or mental impairment(s) are not of such severity as to prevent him or her from performing work that is available within the national economy. Id.; 42 U.S.C. § 423(d)(2)(A); see also White v. Sec'y of Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making this showing at Step Five, the claimant's RFC must be considered along with other vocational factors such as age, education, past work experience, and transferability of skills. 20 C.F.R. § 404.1520(f); see also New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

C. ALJ Zack's Findings

At the hearing, Plaintiff and Andrew Caporale, a vocational expert (VE), testified. Tr. at pp. 406-29. In addition to such testimony, the ALJ had Plaintiff's medical records consisting of treatment reports and opinions from various treating physicians and other sources, including, 1) Barbara Denton, A.C.S.W., Essex County Mental Health Services (hereinafter "Essex County"); 2) Rebekah Radmanesh, M.D., and David Hinsman, M.D., Psychiatrists, Essex County; 3) Glen Chapman, M.D., and Richard McKeever, M.D., Hudson Headwaters Health Network/Ticonderoga Health Center (hereinafter "Hudson Headwaters"); 4) Shelly VanKempen, NPP, and Fred VanKempen, L.C.S.W., Hudson Headwaters; 5) Physical Therapy Notes, Moses-Ludington Hospital; 7) Patricia Henel, Ph.D., Clinical Psychologist; 8) Lisa Newman, Ph.D.; 9) Warren Rinehart, M.D., an Orthopedic Surgeon; and 10) David Welch, M.D., Adirondack Rehabilitation Medicine, P.L.L.C. Id. at pp. 119-385.

Using the five-step disability evaluation, ALJ Zack found that 1) Plaintiff has not engaged in any substantial gainful activity since February 13, 2002, the alleged onset disability date; 2) her back problems and depression are severe medically determinable impairments; 3) her severe impairments do not meet nor medically equal any impairment listed in Appendix 1, Subpart P of Social Security Regulations No. 4; 4) she has the RFC to perform light work and cannot perform her past relevant work; but 5) considering the VE's testimony, as well as Plaintiff's age, educational background, work experience, and RFC, Plaintiff is capable of making a successful adjustment to work that exists in significant numbers in the national economy and therefore is not disabled. Id. at pp. 12-17.

D. Duross's Contentions

In seeking federal judicial review of the Commissioner's decision denying her benefits, Duross makes the following arguments: 1) the Court should consider Plaintiff's post-appeal submissions; 2) the ALJ erred by failing to find that Plaintiff's obesity is a severe impairment; 3) the ALJ erred by failing to find that Plaintiff's condition met Listing 12.04; 4) the ALJ erred in determining Plaintiff's RFC; 5) the ALJ violated the Treating Physician Rule; 6) the ALJ erred in determining Plaintiff's credibility; and 7) the ALJ supplied an inaccurate hypothetical question to the vocational expert. As explained fully below, the Court finds that the ALJ's decision must be reversed due to several legal errors.

1. Requests for Consideration of Submissions

a. Record from Dr. Welch

Plaintiff requests that the Court consider a treatment report from Dr. Welch, dated November 7, 2005. Dkt. Nos. 15 & 16. According to 42 U.S.C. § 405(g), a 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[.]" (Emphasis added); see also Lisa v. Sec'y of Health and Human Servs., 940 F.2d 40, 43 (2d Cir. 1991); Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988). In order to justify remand under this provision, the plaintiff must show (1) that the proffered evidence is new and not merely cumulative of what is already in the record, (2) that the evidence is material, i.e., both relevant to the claimant's condition during the time period for which benefits were denied and probative, and (3) good cause for failing to present the evidence earlier. Lisa v. Sec'y of Health and Human Servs., 940 F.2d at 43. The concept of materiality also requires a reasonable possibility that the new evidence would have influenced the Secretary to decide a claimant's application differently. Tirado v. Bowen, 842 F.2d at 597. Good cause exists where the evidence "surfaces after the Secretary's final decision and the claimant could not have obtained the evidence during the pendency of that proceeding." Lisa v. Sec'y of Health and Human Servs., 940 F.2d at 44.

The administrative record already contains a treatment note from Dr. Welch, dated November 9, 2004. Tr. at pp. 404-05. This treatment note was not included in the ALJ's review since it was generated subsequent to his decision, however, Plaintiff's attorney presented it to the Appeals Council for consideration in appealing the ALJ's unfavorable decision. Id. at p. 403. The Appeals Council considered this, and other additional evidence submitted, and declined to review the ALJ's decision. Id. at pp. 4-7. In the November 2004 note, Dr. Welch indicates that Duross had been referred to him for a consultation at the request of Drs. McKeever and Chapman. Upon examination, Dr. Welch determined that Plaintiff had "numerous trigger points," which suggested to him chronic fibromyaglia. Id. at p. 404. Dr. Welch opined that Plaintiff is totally disabled due to depression and fibromyaliga. Id. at p. 405.

In the November 7, 2005 note, Dr. Welch again found that Plaintiff has trigger point activity and opined that Plaintiff is totally disabled. Dkt. No. 15 at p. 2. Plaintiff asks the Court to consider this "new evidence" as relevant to the issue of Plaintiff's credibility and her other substantive claims and to summarily remand this matter to the Commissioner to consider the additional evidence. Id. at p. 1. The Court finds that the subsequent progress note, while not in existence during the pendency of the SSA proceedings under review, is not "new" in the sense that it is cumulative. Dr. Welch made similar findings in the November 2004 note, namely, that Plaintiff suffered from chronic fibromyalgia and depression as was totally disabled. Compare Tr. at pp. 404-05 with Dkt. No. 15 at p. 2. Furthermore, the November 2005 note is not material because there is no reasonable possibility that it would have influenced the Commissioner to decide Duross's application differently. The diagnoses put forth by Dr. Welch were already before the Appeals Council, and yet, they declined to disturb the ALJ's decision denying benefits. At the time of Dr. Welch rendered his November 2004 note, his treatment relationship with Plaintiff amounted to nothing more than a one-time consultation. There is no reasonable possibility that the Appeals Council would, based on this one-time assessment, credit any controlling weight to Dr. Welch's opinions. The fact that he, as of the November 2005 note, established an ongoing treatment relationship with Plaintiff is not relevant as to Duross's disability status during the period currently under review, namely, February 13, 2002 (the alleged onset disability date) through September 30, 2004 (the ALJ's decision). In fact, according to the Regulations, the Appeals Council will only consider new and material evidence that "relates to the period on or before the date of the administrative law judge hearing decision." 20 C.F.R. § 404.970. It is unclear whether Dr. Welch's November 2005 note relates to such time period. Moreover, Dr. Welch's opinion that Plaintiff is disabled is an issue that is reserved to the Commissioner. Id. at § 404.1527(e)(1). Even assuming for the moment that Dr. Welch would now properly be classified as a treating physician, the Commissioner is only required to give consideration to this opinion; he is not required to give it controlling weight. Id.; Social Security Ruling (S.S.R.) 96-5p, 1996 WL 374183, Policy Intrepretation Ruling Title II and XVI: Medical Source Opinions on Issues Reserved to the Commissioner (S.S.A. 1996). Accordingly, Plaintiff's request to consider new evidence and for a remand on this ground (Dkt. No. 15) is denied.

b. Favorable Decision

In addition to Dr. Welch's November 2005 treatment note, Plaintiff asks the Court to consider a favorable disability decision rendered on November 20, 2007, by ALJ Terrence Farrell. Dkt. No. 21. In his November 2007 decision, ALJ Farrell found Plaintiff disabled as of October 1, 2004. Apparently, Plaintiff seeks to have this Court consider the subsequent favorable decision as further evidence of Plaintiff's disability during the time period at issue in this appeal. In reviewing both ALJs Farrell's and Zack's opinions, however, this Court disagrees with Plaintiff's assessment that ALJ Farrell's finding of disability was based "essentially on the same impairments that [Duross] had prior to September 30, 2004." Dkt. No. 21. In fact, the decision by ALJ Farrell encompasses a different time period, some different impairments, and some different medical evidence than the decision rendered by ALJ Zack. Compare Tr. at pp. 12-19 with Dkt. No. 21-2. Moreover, ALJ Farrell specifically noted that his decision "would be issued only with respect to the unadjudicated period from October 1, 2004." Dkt. No. 21-2 at p. 1. Accordingly, the Court finds that ALJ Farrell's decision is not relevant to Plaintiff's condition during the time period for which benefits were denied. See Lisa v. Sec'y of Health and Human Servs., 940 F.2d at 43; see also Bruton v. Massanari, 268 F.3d 824, 827 (9th Cir. 2001) (holding that the district court did not err in denying a plaintiff's motion to remand his initial application in light of a later award of benefits based on his second application because the second application involved different medical evidence, a different time period, and a different age classification); cf. Ryles v. Sec'y of Health and Human Servs., 526 F. Supp. 1141, 1143 (E.D.N.Y. 1981) (noting that the relevant inquiry is a claimant's condition and relevant law during the time period for which benefits were denied and that if a claimant's condition should later deteriorate after a claim denial, the proper procedure is to reapply for disability benefits). Therefore, the Court denies Plaintiff's request (Dkt. No. 21) to consider the effect of a latter award of benefits for a different time period as probative on the issue of disability during the time period at issue in this appeal.

2. Step Two - Severity of Impairments

At Step Two of the evaluation process, a claimant must prove the existence of a severe impairment that significantly limits his or her physical and/or ...

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