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Hemingway v. Astrue

September 27, 2009

WAYNE M. HEMINGWAY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny United States District Judge

DECISION AND ORDER

1. Plaintiff Wayne M. Hemingway challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled since September 1, 2000, by depression, adjustment disorder, bi-polar disorder, asthma/allergies, and paranoid schizophrenia. Plaintiff contends that because his impairments render him unable to work, he is entitled to disability benefits under the Act.

2. Plaintiff filed applications for disability insurance benefits and supplemental security income on November 10, 2003. Plaintiff's applications were denied, but he won his appeal before the Appeals Council, which remanded his applications for further administrative proceedings. An ALJ conducted a supplemental hearing on January 17, 2007, at which Plaintiff appeared with counsel and testified. Vocational expert James Phillips also testified at the hearing. The ALJ considered the case de novo, and on March 6, 2007, issued a written decision denying Plaintiff's application for benefits. On September 14, 2007, the Appeals Council denied Plaintiff's request for review.

3. Plaintiff filed this action challenging Defendant's final decision on November 1, 2007.*fn1 On March 26, 2008, Defendant filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Plaintiff filed a Motion for Judgment on the Pleadings on April 2, 2008. After full briefing, this Court deemed the motions submitted and reserved decision. For the following reasons, Defendant's motion is granted and Plaintiff's is denied.

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 & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only 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 that which 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 the 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 will 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 & 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 under the 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, and it remains the proper approach for analyzing whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987)

7. This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged in 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 activities. If the claimant suffers 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) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. Although the claimant has the burden of proof on 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, 584 (2d Cir. 1984). The final step is 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 the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity during the relevant time period (R. at 23);*fn2 (2) Plaintiff's adjustment disorder, alcohol dependence, bi-polar disorder, and asthma/allergies are "severe" impairments within the meaning of the Act (R. at 23); (3) Plaintiff's alcohol and drug use would meet the impairments listed in Appendix 1, Subpart P, Regulation No. 4, but cannot form the basis of a disability finding; rather, if Plaintiff stopped his substance abuse, he would not have an impairment or combination of impairments that meets or medically equals any of the listed impairments (R. at 23-24); (4) if Plaintiff stopped his substance abuse, he would retain the following residual functional capacity: "must avoid concentrated exposure to fumes, dust, temperature extremes, wetness and humidity as a precautionary measure due to his past history of asthma/allergies; can occasionally interact with the public, and can occasionally perform complex/detailed tasks." (R. at 25); and (5) if Plaintiff stopped his substance abuse, he would be able to perform his past relevant work as a stock clerk and warehouseman. (R. at 31.) Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act at any time through the date of his decision, and Plaintiff's substance abuse is a contributing factor material to the determination of disability. (R. at 32.) 10. Plaintiff lodges a number of challenges to the ALJ's decision. First, he argues that the ALJ failed to adequately evaluate the severity of Plaintiff's paranoid schizophrenia. The ALJ found that Plaintiff's paranoid schizophrenia, for which he was hospitalized in August 2006, is not a severe impairment because Plaintiff was non-compliant with his course of treatment. (R. 23.)

Plaintiff argues that this finding is not supported by the record evidence because Plaintiff testified that he had a history of mental illness in his family and that he heard voices. (Tr. 758, 764-65.) But the medical records relative to Plaintiff's hospitalization for schizophrenia state that "patient is now feeling much better after he took medications," "[patient] feels better after taking medications," and "happy to be back on medications."

(R. at 626-27.) The hospital records also note that "patient was preoccupied, complaining of various things including having side-effects to the medications, of which none were actually noted, as well as some problems with taking medications and compliance." (R. at 627.) The records also state that "[r]ight now patient admits that he needs to ...


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