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Richards v. Barnhart

February 2, 2009

BRIAN M. RICHARDS, PLAINTIFF,
v.
JOANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff Brian M. Richards challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to disability insurance benefits ("DIB") under Title II of the Social Security Act ("the Act") or to supplemental security income ("SSI") under Title XVI of the Act. Plaintiff alleges he has been disabled since April 15, 2000, because of pain and limitations that resulted from a traumatic brain injury sustained when Plaintiff fell approximately 20 to 30 feet in an outdoor rock climbing accident. Plaintiff met the disability insured status requirements of the Act at all times pertinent to this claim.

Procedural History

2. Plaintiff filed concurrent applications for DIB and SSI on May 18, 2000. His applications were denied initially and upon reconsideration, and Plaintiff took no further action until he applied protectively for SSI on May 28, 2002. This 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). Pursuant to Plaintiff's request, an administrative hearing was held on June 12, 2003, before ALJ Laura S. Havens, at which time Plaintiff and his attorney appeared. A vocational expert also appeared and testified at the hearing.*fn1 The ALJ considered the case de novo, and on August 5, 2003, issued a decision finding that Plaintiff was not disabled. On March 7, 2005, the Appeals Council denied Plaintiff's request for review.

3. On April 29, 2005, 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 DIB and/or SSI benefits to Plaintiff.*fn2 The Defendant filed an answer to Plaintiff's complaint on August 10, 2005, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law (hereinafter called "Plaintiff's Brief") on October 31, 2005. On December 13, 2005, Defendant filed a Memorandum of Law In Support of the Commissioner's Motion for Judgment on the Pleadings*fn3 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 22);*fn4 (2) Plaintiff has engaged in substantial gainful activity since the alleged onset of disability. Plaintiff's work from February 2001 through November 2001 must be considered as substantial gainful activity (20 C.F.R. §§ 404.1572 and 416.972). Accordingly, the first date Plaintiff could be considered to be disabled would be November 20, 2001, the date after the last day Plaintiff performed substantial gainful activity (20 C.F.R. §§ 404.1520(b) and 416.920(b)) (R. at 22); (3) Plaintiff's residual effects of an organic brain injury is a severe impairment, based on the requirements in the Regulations 20 C.F.R. §§ 404.1521 and 416.921 (R. at 22); (4) This medically determinable impairment does not meet or medically equal one of the listed impairments in Appendix 1, Subpart P, Regulation No. 4 (R. at 22); (5) The ALJ found Plaintiff's allegations regarding his limitations to be generally credible, but not necessarily to the degree of limitation claimed, in light of the injury he suffered (R. at 22); (6) The ALJ carefully considered all of the medical opinions in the record regarding the severity of Plaintiff's impairment (20 C.F.R. §§ 404.1527 and 416.927) (R. at 22); (7) Plaintiff has the following residual functional capacity: a wide range of unskilled work not requiring more than light exertion (R. at 23); (8) Plaintiff is unable to perform any of his past relevant work (20 C.F.R. §§ 404.1565 and 416.965) (R. at 23); (9) Plaintiff is a "younger individual between the ages of 18 and 44" (20 C.F.R. §§ 404.1563 and 416.963) (R. at 23); (10) Plaintiff has a "high school (or high school equivalent) education" (20 C.F.R. §§ 404.1564 and 416.964); (11) Plaintiff has no transferable skills from any past relevant work and/or transferability of skills is not an issue in this case (20 C.F.R. §§ 404.1568 and 416.968) (R. at 23); (12) Plaintiff has the residual functional capacity to perform a significant range of light work (20 C.F.R. § 416.967) (R. at 23); (13) Although Plaintiff's exertional limitations do not allow him to perform the full range of light work, using the Medical-Vocational Rule 202.21 as a framework for decision-making, there are a significant number of jobs in the national economy that he could perform. Examples of such jobs include work as a mail clerk, as a hand packer, or as an order clerk (R. at 23); and (14) Plaintiff was not under a "disability," as defined in the Social Security Act, at any time through the date of the ALJ's decision (20 C.F.R. §§ 404.1520(f) and 416.920(f)) (R. at 23). Ultimately, the ALJ determined Plaintiff was not entitled to a period of disability and disability insurance benefits as set forth in sections 216(i) and 223(d) of the Social Security Act, and was not eligible for supplemental security income payments as set forth in sections 1602 and 1614(a)(3)(A) of the Act (R. at 23).

Plaintiff's Challenges

10. Plaintiff challenges the decision of the ALJ on the basis that it is not supported by the substantial evidence of record. Specifically, Plaintiff alleges

(1) the ALJ erroneously concluded Plaintiff engaged in substantial gainful activity ("SGA") from May 1, 2001, through November 19, 2001, thus limiting the first date Plaintiff could be considered disabled to November 20, 2001, (2) the ALJ ignored the medical findings and opinions of Plaintiff's treating physicians, as well the opinions of State agency examining physicians, and substituted her lay opinion for these medical source opinions, (3) the ALJ rejected Plaintiff's testimony regarding his pain and limitations, and failed to provide sufficient specific rationale in her credibility analysis as required by SSR 96-7p, and (4) the ALJ improperly concluded Plaintiff retained the residual functional capacity to work on a regular and continuous basis, in spite of Plaintiff's pain, limitations, and side effects from his medications.

Each of Plaintiff's challenges is discussed below. With respect to Plaintiff's challenges one and two, the Court affirms the findings of the ALJ. With respect to Plaintiff's challenges three and four, the Court remands this matter to the Commissioner for further administrative proceedings.

Challenge 1: The ALJ Erroneously Concluded Plaintiff Engaged in SGA from May 1, 2001, Through November 19, 2001

11. Plaintiff's first challenge to the ALJ's decision is that she erroneously concluded that Plaintiff engaged in substantial gainful activity during the time frame from May 7, 2001 through November 19, 2001. See Plaintiff's Brief, pp. 2-3. Plaintiff claims his work during this period of time as a janitor was an unsuccessful work attempt. Id. at 3. The Court disagrees with Plaintiff's challenge for the reasons set forth below.

The Commissioner's regulations provide that work performed for six months or less will not be considered substantial gainful activity if a claimant's impairment(s) forced the claimant to stop working, or caused a claimant to reduce his or her hours to a level that caused earnings to fall below the substantial gainful activity level as calculated by the formula set forth in 20 C.F.R. § 404.1574(b)(2)(ii). During the calendar year 2001, if a claimant's monthly earnings averaged over the time period during which a claimant worked exceeded $739.01, the claimant would be presumed to have engaged in substantial gainful activity. See 20 C.F.R. § 404.1574(b)(2)(ii); SSR 83-35; see also http://www.ssa.gov/OACT/COLA/awiseries.html. In this matter, Plaintiff worked continuously from May 7, 2001, until November 19, 2001, and earned $19,866.33 (R. at 58, 59). His average monthly earnings during this time frame were well in excess of $3000 per month, and far above the monthly amount of $739.01 determined to represent substantial gainful activity during 2001.

Further, the Commissioner's regulations provide that if a claimant worked more than six months at the substantial gainful activity level, the claimant's work cannot be considered an unsuccessful work attempt regardless of why the work ended, or why earnings were subsequently reduced below the substantial gainful activity level. See 20 C.F.R. § 404.1574(c)(5).

Based on the foregoing, the Court finds that contrary to Plaintiff's assertion that his work as a janitor performed between May 7, 2001, and November 19, 2001, was an unsuccessful work attempt, he did indeed engage in substantial gainful activity during this time frame. Thus, the ALJ was correct when she determined that the first date Plaintiff could be found to be disabled was November 20, 2001 (R. at 22).

Challenge 2: The ALJ Failed to Follow the Treating Physician Rule and Substituted Her Lay Opinion for Medical Evidence

12. Plaintiff's second challenge to the ALJ's decision is that she failed to follow the treating physician rule when she ignored the medical findings and opinions of Plaintiff's treating psychiatrist and treating physicians, as well as the opinions of State agency examining physicians, and substituted her lay opinion for valid medical source evidence. See Plaintiff's Brief, pp. 9-15.

Thus, Plaintiff asserts the ALJ's determination that he retained the residual functional capacity to perform a significant range of light work is not based on the substantial evidence of record. See Plaintiff's Brief, pp. 15-17.

According to the "treating physician's rule,"*fn5 the ALJ must give controlling weight to the treating physician's opinion when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under C.F.R. § 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. See de Roman, 2003 WL 21511160, at *9 (citing C.F.R. § 404.1527(d)(2); see also Shaw, 221 F.3d at 134; Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998).

Having reviewed the evidence at issue, this Court detects no reversible error in the ALJ's treatment of the opinions of Plaintiff's treating psychiatrist, Dr. Vilas Patil, and his treating physicians, Doctors Karl Klamar, Karl Hafner and Robert Todd, nor with the ALJ's consideration of the opinions of State agency examiners, Dr. Berton Shayevitz and Kristen Barry, Ph.D. Rather, the ALJ's decision reflects her extensive evaluation of all the medical evidence in the record developed from the date of Plaintiff's alleged disability on April 15, 2000, through the date of the ALJ's decision on August 5, 2003 (R. at 17-23). The medical evidence includes treatment notes, evaluations of Plaintiff's progress, and test results (R. at 138-319). The opinion of Dr. Patil, was inconsistent and unsupported by the record as a whole, while the opinions of Doctors Klamar, Hafner, Todd, Shayevitz, and Barry were considered by the ALJ and whose opinionssupported her determination that Plaintiff was not under a disability during the time frame relevant to his claim.

Plaintiff's medical record documents that he suffers from limitations resulting from a traumatic brain injury suffered on April 15, 2000, when he fell approximately 20 to 30 feet and struck his head in an outdoor rock climbing accident (R. at 171-173). Plaintiff was hospitalized at University Hospital and Health Care Center SUNY New York from April 15, 2000 until June 7, 2000, where he underwent surgeries for a decompression craniectomy and removal of a subdural hematoma, and partial left frontal and left temporal lobectomy. Id. Plaintiff remained in the hospital's neurosurgical intensive care unit for 13 days, and when his condition stabilized, he was transferred to the neurological unit to await placement in a rehabilitation program (R. at 173). On May 1, 2000, Plaintiff was transferred to the Physical Medicine and Rehabilitation Unit at University Hospital and Health Care Center (R. at 169-170). Upon admission to the Rehabilitation Unit, Plaintiff's attending physician, Dr. Margaret Turk, observed that he was awake and alert, followed one-step commands inconsistently, and was non-verbal (R. at 169). During intensive treatment with occupational and speech therapy, Plaintiff became independent in his basic ...


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