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Mancuso v. Astrue

March 31, 2009


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


In this action, Plaintiff Yvette Mancuso moves, pursuant to 42 U.S.C. § 405(g), for review of a decision by the Commissioner of Social Security denying her application for Supplemental Security Income (SSI).*fn2 Based upon the following discussion, this Court recommends that the Commissioner's decision denying Social Security benefits be affirmed.


Yvette Mancuso, born on August 15, 1969, protectively filed for SSI benefits on December 11, 2001,*fn3 alleging disability due to neck and back pain as well as depression. Dkt. No. 5, Admin. Transcript [hereinafter "Tr."] at pp. 107 & 134. Mancuso alleges her disability began on October 2, 1998, and eventually caused her to stop working on December 3, 2001. Id. at pp. 107 & 129. Mancuso accumulated sixty-four college credits, but did not earn an associates degree. Id. at pp. 140 & 407. She previously worked as a certified nurse assistant, housekeeper, taxi driver, waitress, and cook. Id. at pp. 408-10.

On March 6, 2002, Mancuso's application was initially denied. Id. at pp. 22-25. A hearing was then held on February 10, 2004 (Tr. at pp. 433-55), before Administrative Law Judge (ALJ) Carl E. Stephan who, on March 22, 2004, issued a decision finding Mancuso not disabled (Tr. at pp. 51-57). On November 3, 2004, the Appeals Council vacated ALJ Stephan's decision and remanded the matter back to him with explicit instructions. Id. at pp. 73-76. In accordance with that remand, ALJ Stephan held another hearing on October 18, 2005, wherein the testimony of a vocational expert was procured. Id. at pp. 403-32. Thereafter, on December 22, 2005, ALJ Stephen issued another decision finding Mancuso not disabled. Id. at pp. 12-21. The Appeals Council denied further review on May 10, 2006, thus rendering the ALJ's decision the final determination of the Commissioner. Id. at pp. 5-7. 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

The SSI program, 42 U.S.C. § 1381, et seq., is a federal program providing benefits to needy aged, blind, or disabled individuals who meet the statutory income and resource limitations. 20 C.F.R. § 416.110. The SSI program was designed to replace the former federally assisted state welfare programs for the aged, blind, or disabled. Id. While the SSI program has special eligibility requirements that relate to establishing need,*fn4 the requirements for establishing disability, found at 42 U.S.C. § 1382c, are identical to the requirements under Title II of the Social Security Act for entitlement to disability insurance benefits. See 42 U.S.C. § 423(d). Therefore, the vast case law interpreting the disability provisions under Title II may be relied upon in this case. See Donato v. Sec'y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983) (noting that decisions under Titles II and XVI are cited interchangeably).

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. § 416.920. 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. § 416.920(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 § 416.920(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 § 416.920(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 proceeds to Step Four and considers whether the claimant has the residual functional capacity (RFC)*fn5 to perform his or her past relevant work despite the existence of severe impairments. 20 C.F.R. § 416.920(e). If 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. § 416.920(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. § 416.920(f); see also New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

C. The Appeals Council Remand

In remanding Mancuso's SSI application back to the ALJ, the Appeals Council noted several defects in ALJ Stephan's March 2004 decision, which were to be rectified. First, the Appeals Council noted that in assessing the severity of Mancuso's mental impairment, the ALJ failed to use the special technique set forth at 20 C.F.R. § 416.920a in that he failed to assess her degree of functionality in the four broad areas. Tr. at p. 71. Second, the Appeals Council observed that the ALJ identified significant non-exertional limitations, such as the limitation of performing simple, unskilled work in a low stress setting with limited interaction with other people, but the ALJ failed to obtain vocational evidence as to the extent of erosion of the occupational base for light work as a result of such non-exertional limitations. Id. On remand, the ALJ was required to do the following:

* Obtain updated medical records concerning all of the claimant's impairments in order to complete the administrative record in accordance with the regulatory standards regarding existing medical evidence (20 C.F.R. 416.912-913). The updated records shall include notes from her treating sources and medical source statements about what she can still do despite her impairments.

* Evaluate the claimant's mental impairments in accordance with the special technique described in 20 C.F.R. 416.920a, documenting application of the technique in the decision by providing specific findings and appropriate rationale for each of the functional areas described in 20 C.F.R. 416.920a(c).

* Give further consideration to the claimant's maximum residual functional capacity and provide appropriate rationale with specific references to evidence of record in support of the assessed limitations (20 C.F.R. 416.945 and Social Security Ruling 85-16 and 96-8p).

* If warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base (Social Security Ruling 83-14). The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The Administrative Law Judge will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy (20 C.F.R. 416.966). Further, before relying on the vocational expert evidence the Administrative Law Judge will identify and resolve any conflicts between the occupational evidence provided by the vocational expert and information in the Dictionary of Occupational Titles (DOT) and its companion publication, the Selected Characteristics of Occupations (Social Security Rule 00-4p).

Id. at p. 75.

Generally, the Plaintiff complains that ALJ Stephan's December 2005 decision falls short of the Appeals Council's mandates. Through a myriad of arguments, Mancuso further concludes that the ALJ's decision is not supported by substantial evidence and he applied incorrect legal standards. After reviewing the Administrative Transcript we find that ALJ Stephan properly complied with the Appeals Council's mandate and Plaintiff's argument to the contrary is unsupported. We shall review Plaintiff's innumerous complaints to the extent Plaintiff complains that ALJ Stephan's decision is unsupported by substantial evidence or that he applied incorrect legal principles.

D. ALJ Stephan's December 2005 Decision

Mancuso, as well as a vocational expert, testified at the second ALJ hearing. Tr. at pp. 403-32. In addition to such testimony, the ALJ had Mancuso's medical records consisting of treatment reports and opinions from various treating, examining, and non-examining physicians, including, 1) Progress Notes from Bassett Heathcare Cobleskill (Tr. at pp. 171-90 & 227-31); 2) Annette Payne, Ph.D, State Agency Examining Psychologist (Tr. at pp. 191-95); 3) Amelita Balagtas, M.D., State Agency Examining Orthopedist (Tr. at pp. 196-98); 4) R. Thornton, State Agency Non-Examining RFC Assessor (Tr. at pp. 200-07); 5) Richard B. Weiss, M.D., State Agency Non-Examining Mental RFC Assessor (Tr. at pp. 208-25); 6) Progress Notes from Champlain Valley Physicians Hospital Medical Center (Tr. at pp. 237-67 & 350-59); 7) Richard F. Liotta, Ph.D., State Agency Examining Psychologist (Tr. at pp. 269-74); 8) Brett T. Hartman, Psy.D., State Agency Examining Psychologist (Tr. at pp. 286-93); 9) Nader Wassef, M.D., State Agency Examining Orthopedist (Tr. at pp. 294-302); 10) Aaron Satloff, M.D., Impartial Medical Expert, Psychiatry (Tr. at pp. 321-26 & 361-74); 11) Richard S. Goodman, M.D., Impartial Medical Expert, Orthopedics (Tr. at pp. 327-36 & 376-402); and 12) Edward S. Leib, M.D., Treating Physician (Tr. at pp. 338-43). Plaintiff also submitted interrogatories to the Drs. Goodman and Satloff, the Impartial Medical Experts. Id. a pp. 345-49. The issue before ALJ Stephan was whether Plaintiff was disabled from December 11, 2001, her protective SSI application date, through December 22, 2005, the date of the ALJ's decision.

Using the five-step disability evaluation, ALJ Stephan found that 1) Mancuso had not engaged in any substantial gainful activity since December 3, 2001, the alleged onset disability date; 2) she has severe medically determinable impairments, namely drug abuse, depression, neck pain, and back pain; 3) her severe impairments did not meet nor medically equal any impairment listed in Appendix 1, Subpart P of Social Security Regulation No. 4; 4) she retains the residual functional capacity to perform a significant range of light work, except that she was limited by the following: a) occasional problems understanding, remembering, and carrying out detailed instructions; and b) occasional problems dealing with stress, maintaining attention/concentration, and interacting with others. Noting Plaintiff had no past relevant work, the ALJ continued with the disability evaluation; and 5) relying upon the vocational expert's testimony and using the Medical Vocational Guidelines as a framework, ALJ Stephan concluded there was work available in the national and local economies which Plaintiff could perform including a mail clerk, office manager, and order clerk. Id. at pp. 12-21.

After reviewing the administrative transcript, the Court finds that the ALJ applied the correct legal standards and his findings are supported by substantial evidence of record.

1. Step Three -- The Listings

Plaintiff's arguments in her Legal Brief are rather disjointed, however, after a careful review, it appears that she does not challenge the ALJ's determinations at Steps One and Two,*fn6 thus, we begin our review addressing Plaintiff's complaints regarding the ALJ's Step Three determination.

Mancuso claims the ALJ erred at Step Three when he failed to find that her severe mental and physical impairments met or medically equaled Listings 1.05 (disorders of the spine), 12.04 (affective disorders), and 12.06 (anxiety related disorders).

At Step Three of the sequential disability evaluation, the ALJ must determine whether the claimant's conditions meet or medically equal the requirements for any impairment listed in Part 404 of the Social Security Regulations, Subpart P, Appendix 1. 20 C.F.R. § 416.920(a)(4)(iii). "The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 416.925(a). If a claimant's impairment or combination of impairments meets or equals a listed impairment, the evaluation process is concluded and the claimant is considered disabled without considering the claimant's age, education, or work experience. 20 C.F.R. § 416.920(a)(4)(iii).

The burden is on the plaintiff to present medical findings which show that his or her impairments match a listing or are equal in severity to a listed impairment. Zwick v. Apfel, 1998 WL 426800, at *6 (S.D.N.Y. July 27, 1998). In order to show that an impairment matches a listing, the claimant must show that his or her impairment meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20 C.F.R. § 416.925(d). If a claimant's impairment "manifests only some of those criteria, no matter how severely," such impairment does not qualify. Sullivan v. Zebley, 493 U.S. at 530. To make this showing, the claimant must present medical findings equal in severity to all requirements which are supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 416.926(b). Any abnormal physical findings "must be shown to persist on repeated examinations despite therapy." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B). Furthermore, the medical reports should reflect physical limitations based upon actual observations and not just the claimant's subjective complaints. Id.

a. Back Impairment -- Listing 1.05

Plaintiff began experiencing pain in her back in 1991 after she lifted her then-two year-old son out of his car seat. Tr. at p. 411. Since that date, x-rays and magnetic resonance imaging (MRI) reports, both spanning 1997 through 2004, consistently showed Plaintiff suffers from degenerative disc disease of the lumbar spine with small disc herniation centrally at L4-5 and L5-S1 and mild disc bulging at L4-5. Id. at pp. 199, 236, 238, 251, 257, & 263-64.

Plaintiff asserts that her back impairment meets the requirements for Listing 1.05, however, as pointed out by the Commissioner, that particular Listing deals with amputation while the vertebrogenic Listing referred to by Plaintiff was repealed in 2001 and replaced by Listing 1.04. See 66 Fed. Reg. 58,010, 58,017, and 58,018 (Nov. 19, 2001); 20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04 (2002). The effective date of the rule change is February 19, 2002, however, the Explanation of the Effective Date makes clear that these changes are applied to claims for benefits pending at any stage in the administrative review process. 66 Fed. Reg. 58,010 & 58,011. Furthermore, for claims pending judicial review, such as in our case, the court's review of the Commissioner's final decision is to be made in accordance with the rules in effect at the time of the Commissioner's final decision. Id. At the time the ALJ issued his second decision, Listing 1.05 was repealed and replaced with Listing 1.04. Thus, the Court will construe Plaintiff's argument as raising a claim under Listing 1.04, Disorders of the Spine.

To meet Listing 1.04, Plaintiff must show evidence of a "disorder of the spine (e.g. herniated nucleus pulposus, spinal arachnoiditis, spinal stenosis, osteoarthritis, degenerative disc disease, facet arthritis, vertebral fracture) resulting in a compromise of a nerve root... or the spinal cord [w]ith:

Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).

20 C.F.R. Part 404, Subpt. P, App. 1, § 1.04(A).

The Court adopts the Commissioner's analysis on this point and agrees that the objective medical evidence supports the finding that Plaintiff does not meet the criteria of Listing 1.04(A). First, there is no evidence that Plaintiff's back impairment caused a compromise of the nerve root and, in fact, MRIs of the lumbar spine consistently showed no nerve root involvement. Tr. at pp. 236, 238, 251, & 263. Also, upon examination, Plaintiff has had normal reflexes and sensation in her lower extremities and her muscle strength has been full. Id. at pp. 197, 249, & 341. Accordingly, Plaintiff fails to meet her burden of establishing that her back impairment met a Listed impairment.

b. Mental Impairment -- Listings 12.04 and 12.06

Mancuso has been treated for depression in the past; though she has not regularly sought mental health therapy, she has been prescribed varying medications to treat her depression. Plaintiff asserts that her mental impairments meets the criteria for both Listings 12.04 and 12.06. In accordance with the Appeals Council Remand, the ALJ applied the special technique for evaluating mental impairments, as set forth in 20 C.F.R. § 416.920a. In assessing whether Plaintiff met one of these Listings, the ALJ considered the following evidence: 1) February 2002 Report of Annette Payne, Ph.D., State Agency Examining Psychologist; 2) March 2002 Report of Richard B. Weiss, M.D., State Agency, Non-Examining Review Physician; 3) December 2004 Report of Richard F. Liotta, Ph.D., State Agency Examining Psychologist; 4) March 2005 Report of Brett T. Hartman, Psy.D., State Agency Examining Psychologist; and 5) April 2005 Report of Aaron Satloff, M.D., Impartial Medical Expert in Psychiatry. The ALJ noted that all of these opinions are well-supported by objective clinical and laboratory findings and are generally consistent. To the extent there are differences amongst the opinions, the ALJ afforded the greatest weight to mental health professionals who actually examined Mancuso, such as Drs. Payne, Liotta, and Hartman. Also, to the extent there are differences amongst those three opinions, the ALJ gave significant weight to each opinion for that relevant time period. The expert opinion of Dr. Satloff, which was subjected to Plaintiff's cross-examination, was obtained to resolve inconsistencies and his opinion was given significant weight. Tr. at pp. 14-16.

With regard to Listing 12.04 for affective disorders, an individual meets or equals this Listing if ...

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