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Sellie v. Astrue

September 3, 2009

PETER SELLIE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. Introduction

Plaintiff Peter Sellie, challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since December 20, 2001, because ofpain and limitations from obesity, asthma, non-insulin dependent diabetes, sleep apnea, left tibial fracture, left shoulder pain, and depression and anxiety. Plaintiff met the disability insured status requirements of the Act through June 30, 2005.

II. Background

Plaintiff filed an application for DIB on October 21, 2003. His 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 March 30, 2005, before ALJ Barry Anderson, at which time Plaintiff, his wife, and his attorney appeared. A vocational expert testified via telephone. The ALJ considered the case de novo, and on June 7, 2005, issued a decision finding that Plaintiff was not disabled. On February 1, 2006, the Appeals Council granted a review of the matter, vacated the decision, and remanded Plaintiff's case for a new hearing because the recording of the vocational expert's testimony was inaudible and could not be transcribed. Plaintiff and his attorney appeared before ALJ Thomas Zolezzi for a hearing on July 11, 2006. Again, a vocational expert testified via telephone. The ALJ considered the case de novo, and on July 27, 2006, issued a decision finding that Plaintiff was not disabled. On April 20, 2007, the Appeals Council denied Plaintiff's request for review.

On May 3, 2007, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court toreview 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 benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on July 31, 2007, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted Plaintiff's Brief on September 14, 2007. On November 30, 2007, Defendant filed a Brief 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.

For the reasons set forth below, this Court finds no reversible error and finds that substantial evidence supports the ALJ's decision. Thus, the Court affirms the decision of the Commissioner.

III. Discussion

A. Legal Standard and Scope of Review

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).

"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 position 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).

The Commissioner has established a five-step sequential evaluation process*fn3 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.

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).

B. Analysis

1. Commissioner's Decision

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 insured status requirements of the Social Security Act through June 30, 2005 (R. at 18);*fn4 (2) Plaintiff has not engaged in substantial gainful activity since December 20, 2001, the alleged onset date (20 C.F.R. §§ 404.1520(b) and 404.1571 et.seq.) (R. at 18); (3) Plaintiff has the following severe combination of impairments: obesity, asthma, diabetes, sleep apnea, history of left tibial fracture, history of left shoulder injury, depression and anxiety (20 C.F.R. § 404.1520(c)) (R. at 18); (4) Plaintiff does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525 and 404.1526) (R. at 19); (5) After careful consideration of the entire record, the ALJ found that Plaintiff has the residual functional capacity to: perform work at a sedentary*fn5 level of exertion, with standing every 30 to 45 minutes for 5 minutes to stretch his legs; with no driving for business purposes; with access to a rest room, two to four times daily, for ten minutes at a time; which does not require climbing of stairs, ladders or scaffolds; with no exposure to concentrated gases, fumes, odors, dust, smoke, or poor ventilation; with occasional but not frequent overhead work with the non-dominant left arm; in simple, entry-level work with simple decision-making, but no complex decision-making; and with no contact with dangerous machinery, such as knives, blades or saws (R. at 20); (6) Plaintiff is unable to perform any past relevant work (20 C.F.R. § 404.1565) (R. at 22); (7) Plaintiff was born on January 31, 1967 and was 34 years old on the alleged disability onset date, which is defined as a younger individual age 18-44 (20 C.F.R. § 404.1563) (R. at 22); (8) Plaintiff has at least a high school education and is able to communicate in the English language (20 C.F.R. § 404.1564) (R. at 22); (9) Transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that Plaintiff is "not disabled," whether or not Plaintiff has transferable job skills (SSR 82-41 and 20 C.F.R. Part 404, Subpart P, Appendix 2) (R. at 23); (10) Considering Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (20 C.F.R. §§ 404.1560(c) and 404.1566) (R. at 23); and (11) Plaintiff has not been under a disability, as defined in the Social Security Act, from December 20, 2001, through the date of this decision (20 C.F.R. § 404.1520(g)) (R. at 24). 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 (R. at 24).

2. Plaintiff's Claims

Plaintiff challenges the decision of the ALJ on the basis that it is not supported by the substantial evidence of record. Specifically, Plaintiff alleges (a) the ALJ did not properly evaluate Plaintiff's obesity in combination with his other impairments to determine if Plaintiff's combined impairments met or medically equaled a listing at 20 C.F.R. Part 404, Subpart P, Appendix 1, (b) the ALJ erred by rejecting Plaintiff's claim that the residual effects from his left leg fracture met or medically equaled the listing at 20 C.F.R. Part 404, Subpart P, Appendix 1, 1.02A (c) the ALJ failed to properly consider the opinions of Plaintiff's treating physicians with respect to Plaintiff's limitations and his residual functional capacity, and (d) the ALJ erred in his assessment of Plaintiff's credibility when he found that Plaintiff could perform a limited range of sedentary work. Plaintiff asserts that the ALJ's determination that he is "not disabled" at step five in the sequential evaluation must be reversed as it is not supported by the substantial evidence in the record. See Plaintiff's Brief, pp. 7-17. a. The ALJ Properly Evaluated Plaintiff's Obesity In Combination With His Other Impairments When Finding His Combined Impairments Did Not Meet Or Medically Equal A Listed Impairment

Plaintiff's first challenge to the ALJ's decision is that he improperly found that his obesity, in combination with his asthma, diabetes, sleep apnea, knee and shoulder pain, hypertension, hyperlipidemia, and depression and anxiety, did not meet or equal the level of a listed impairment at 20 C.F.R. Part 404, Subpart P, Appendix 1. See Plaintiff's Brief, pp. 10-12. Plaintiff argues that by failing to consider Plaintiff's obesity in combination with his other impairments, the ALJ erroneously concluded that Plaintiff retained the residual functional capacity to engage in a limited range of sedentary work and thus, was not disabled under the Act. See Plaintiff's Brief, p. 12. The Commissioner argues that the ALJ properly considered Plaintiff's obesity in combination with all of his other impairments at each step in the sequential evaluation process, and his finding that Plaintiff retained the capacity to engage in a limited range of sedentary work was correct. See Defendant's Brief, p. 10.

"Disability" is defined as the inability to engage in any substantial gainful employment by reason of any medically determinable 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. See 42 U.S.C.A. § 423(d)(1)(A). An individual shall be determined to be under a disability only if his or her physical or mental impairment or impairments are of such severity that he or she is not only unable to do his or her previous work, but cannot, considering age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy. See 42 U.S.C.A. § 423(d)(2)(A). Thus, the presence of a severe impairment or multipleimpairments is insufficient to establish disability absent evidence that Plaintiff has functional limitations that would preclude him from engaging in any substantial gainful activity. See Coleman v. Shalala, 805 F. Supp. 50, 53 (S.D.N.Y. 1995); Rivera v. Harris, 623 F.2d 212, 215-216 (2d Cir. 1980).

On October 25, 1999, the SSA deleted Listing 9.09, Obesity, from 20 C.F.R. Part 404, Subpart P, Appendix 1. See 64 FR 46122 (1999). The SSA explained, "Although many individuals with obesity are appropriately found "disabled" within the meaning of the Social Security Act (the Act), we have determined the criteria in listing 9.09 were not appropriate indicators of listing level severity because they did not represent a degree of functional limitation that would prevent an individual from engaging in any gainful activity." Id. Instead of treating obesity as a listed impairment, the SSA provides guidance to adjudicators when evaluating claims where obesity is a factor in the prefaces of Listings sections 1.00Q (Musculoskeletal System), 3.00I (Respiratory System), and 4.00F (Cardiovascular System). See 20 C.F.R. Part 404, Subpart P, Appendix 1, Listings 1.00Q, 3.00I, 4.00F; SSR 02-1p. The SSA reminds adjudicators that obesity is a medically determinable impairment, and that the combined effects of obesity with any other impairment can be greater than the effect of any single impairment considered separately. See SSR 02-1p. Further, adjudicators are instructed to consider the effects of obesity not only under the listings, but at all steps of the sequential evaluation process, including when assessing if a claimant retains the residual functional capacity to participate in substantial gainful activity. Id.

The Commissioner's regulations do not prescribe a specific level of weight or body mass index (BMI) that equates to a severe impairment, or to a non- severe impairment. See SSR 02-1p. Instead, an ALJ must assess the limiting effects of obesity on a claimant's functioning to determine if his or her obesity rises to the level of a severe impairment. Id. In this matter, the ALJ followed the requirements of SSR 02-1p. The ALJ determined Plaintiff's obesity is a severe impairment because it has more than a minimal effect on his functioning (R. at 18). He then proceeded to evaluate Plaintiff's other impairments, both severe and non-severe, in combination with Plaintiff's obesity to determine if any of the impairments, either singly or in combination, met or medically equaled a listing (R. at 18-20). As an example, the ALJ considered the residual effects of Plaintiff's left tibial fracture on his ability to walk (R. at 19). The ALJ noted that after Plaintiff's leg injury in May 2005, the Plaintiff underwent surgery followed by a stay at a rehabilitation hospital (R. at 19, 293-294, 305-309, 310-328). Plaintiff met his rehabilitation goals, was discharged from the rehabilitation hospital, and continued treatment with an orthopedic physician (R. at 19, 296, 297, 298, 299, 300, 310-328). In an office note dated December 19, 2005, the doctor reported Plaintiff was doing well and that his walking had improved (R. at 296). Plaintiff's incision near his left knee was well-healed, he had excellent range of motion in the knee, and full motor and sensory function in his left distal limb. Id. Plaintiff reported to the doctor that he had soreness and swelling in his left knee "after prolonged activities." Id.

As a second example that the ALJ considered Plaintiff's impairments in combination with his obesity, the ALJ considered Plaintiff's severe sleep apnea, a condition frequently affecting those who are obese (R. at 19). See SSR 02-1p.

The ALJ included sleep apnea in Plaintiff's severe combination of impairments, but found the medical evidence revealed sleep apnea had little or no effect on Plaintiff's ability to function as long as he was fully compliant with the use and maintenance of his BiPap*fn6 machine (R. at 19, 272-273, 274, 275, 337, 339-340). The same is true for Plaintiff's non-insulin dependent diabetes mellitus (NIDDM). As long as Plaintiff took his medication as prescribed by his treating physician, this condition remained under good control ...


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