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Orden v. Astrue

February 16, 2010

THOMAS VAN ORDEN, PLAINTIFF,
v.
MICHAEL V. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. INTRODUCTION

In May of 2006, Plaintiff Thomas Van Orden filed an application for Disability Insurance Benefits ("DIB") under the Social Security Act. Plaintiff alleges that he has been unable to work since March 9, 2006. The Commissioner of Social Security denied Plaintiff's application.

Plaintiff, through his attorneys, Irwin M. Portnoy & Associates, P.C., Irwin M. Portnoy, Esq., of counsel, commenced this action on January 26, 2009, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff seeks judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

On November 5, 2009, the Honorable Norman A. Mordue, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 24).

II. BACKGROUND

The relevant procedural history may be summarized as follows: Plaintiff filed an application for DIB on May 18, 2006, alleging disability beginning on March 9, 2006. (T at 10, 88).*fn1 The application was denied initially and on reconsideration. (T at 10, 42, 43, 61-62, 65-68). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (T at 10, 60). On May 15, 2008, Plaintiff appeared with counsel, in Poughkeepsie, New York and testified at a video conference hearing. (T at 10, 234-54). The hearing was conducted before ALJ Dennis G. Katz sitting in White Plains, New York. (T at 10, 234-54). On August 12, 2008, ALJ Katz issued a written decision denying the application for benefits. (T at 10-18). The ALJ's decision became the Commissioner's final decision on December 18, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 2-4).

Plaintiff, through counsel, timely commenced this action on January 26, 2009. (Docket No. 1). Plaintiff filed a supporting Brief on April 30, 2009. (Docket No. 8). The Commissioner filed a Brief in opposition on July 28, 2009. (Docket No. 17). Plaintiff filed a Reply Brief on September 4, 2009. (Docket No. 22).*fn2 The Commissioner filed a Surreply Brief on September 30, 2009. (Docket No. 23).

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn3

For the reasons that follow, it is respectfully recommended that the Commissioner's motion be granted and that this case be dismissed.

III. DISCUSSION

A. Legal Standard

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 only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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).

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 & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).

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. §§ 416.920, 404.1520. 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, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.*fn4

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 the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her 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. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

B. Analysis

1. Commissioner's Decision

The ALJ found that Plaintiff met the insured status requirements through September 30, 2009. (T at 12). The ALJ determined that Plaintiff had not engaged in substantial gainful activity since June 1, 2006. (T at 12). He concluded that the medical evidence established that Plaintiff had "severe" impairments, including a back impairment, a left shoulder impingement, and degenerative disc disease, but that the evidence did not indicate that Plaintiff's impairments met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 12). The ALJ determined that Plaintiff has the residual functional capacity to perform a full range of sedentary work and some "light exertion level work tasks." (T at 13). The ALJ found that Plaintiff is able to perform "fine manipulations and activities requiring reaching above shoulder length with the left upper extremity 75% of the time during a typical work day." (T at 13). The ALJ determined that Plaintiff cannot perform work that requires more than occasional twisting of the body or more than occasional movement of the head and neck. (T at 13). The ALJ concluded that Plaintiff was unable to perform his past relevant work as a woodworker. (T at 17). The ALJ noted that Plaintiff is a "younger individual" as set forth in 20 CFR § 404.1563. The ALJ determined that considering Plaintiff's age, education (high school), work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that he can perform. (T at 18). As such, the ALJ found that Plaintiff is not under a disability as defined by the Social Security Act. (T at 18). As noted above, the ALJ's decision became the Commissioner's final decision on December 18, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 2-4).

2. Plaintiff's Claims

Plaintiff contends that the Commissioner's decision should be reversed. Plaintiff offers seven (7) principal arguments in support of his position. First, Plaintiff contends that the ALJ did not conduct a full and fair hearing. Second, he argues that the ALJ erred in failing to consider the combined effect of the impairments. Third, Plaintiff asserts that the ALJ erred in evaluating the medical evidence. Fourth, Plaintiff argues that the ALJ did not adequately explain his reasons for concluding that Plaintiff's impairments did not meet or equal one of the impairments set forth in the Listings. Fifth, Plaintiff contends that the ALJ did not properly evaluate his credibility. Sixth, Plaintiff asserts that the ALJ erred in determining his residual functional capacity. Seventh, Plaintiff argues that the ALJ should have consulted a vocational expert. This Court will address each argument in turn.

a. Due Process

At the hearing before the ALJ, Plaintiff testified that in 2005 he owned and operated his own woodworking business. (T at 240). When the ALJ asked how much Plaintiff earned during that year, he said he would need to "check the back taxes." (T at 240). When asked for an estimate, Plaintiff indicated that he earned approximately $8,000 per month. (T at 242). The ALJ requested a copy of Plaintiff's 2005 income tax return. (T at 242). On May 19, 2008, shortly after the hearing, Plaintiff's counsel sent a letter to the ALJ indicating that Plaintiff "does not believe he filed a 2005 tax return." (T at 23). Plaintiff provided his 2006 federal tax return instead, which showed only $5,249 in income. (T at 27-29).

The ALJ found several discrepancies in Plaintiff's testimony. First, Plaintiff testified that he earned gross income of approximately $96,000, but his Social Security earnings record showed no income for that year. (T at 17, 77). Second, Plaintiff testified that he would need to check his "back taxes" to ascertain his income for 2005, but later indicated that he did not file a tax return for that year. (T at 17). Third, the claim that he had not filed a tax return in 2005 appeared to be contradicted by Plaintiff's 2006 tax return, which indicated that he was carrying forward a net operating loss of $3,332 from a "prior year." (T at 17, 27). Plaintiff's counsel notes that this loss was "apparently" for 2005. (Docket No. 8, at p. 2).

In light of the foregoing, the ALJ concluded that Plaintiff did not accurately report his monthly income during 2005 to the Internal Revenue Service. (T at 17). In addition, there was evidence to the effect that Plaintiff continued to work "off the books" and misrepresented the date on which he stopped working. For example, Plaintiff unequivocally testified at the hearing that he had not worked since March of 2006 (T at 237), but medical records indicated that he stopped working in May of that year. (T at 190). Plaintiff's counsel later admitted that Plaintiff continued working until May of 2006 and, in fact, earned most of his income for that year after his March 2006 automobile accident. (T at 23). In the face of this admission, Plaintiff was forced to amend his alleged onset date from March 9, 2006 (the date of the auto accident) to June 1, 2006. (T at 23). A report prepared by Dr. Adam S. Soyer in March of 2008 indicated that Plaintiff "has been working," further contradicting Plaintiff's testimony. (T at 192).

The ALJ concluded that Plaintiff's continued work "off the books" suggested "not only that he has not been fully candid, but that he is not as physically limited as he contends." (T at 17).

Plaintiff contends that the ALJ denied him due process by failing to use his administrative powers to resolve a significant factual issue. Plaintiff argues that the ALJ improperly surmised that Plaintiff had underreported income. Rather, Plaintiff contends that the ALJ should have provided a supplemental hearing on the issue of what income, if any, Plaintiff earned and whether Plaintiff had a legitimate explanation for the apparent discrepancies in his testimony and tax records.

This Court finds Plaintiff's argument unavailing. Plaintiff suggests that a supplemental hearing might have produced evidence and/or explanations that would resolve the inconsistencies noted by the ALJ. However, Plaintiff does not actually state what that evidence or explanation would actually be. Other than general information about options for self-employment income, Plaintiff makes no attempt whatsoever to explain the inconsistencies noted by the ALJ, including (for example) why he earned approximately $96,000 in gross income in 2005, but his earnings record shows no income and he does not "believe" that he filed an income tax return for that year. To that end, it should be noted that this is not information in the exclusive possession of a third party. Plaintiff is (or should be) possessed of any and all information that might tend to ameliorate the apparent contradictions outlined by the ALJ. Having failed to offer any meaningful details about what that information might be, Plaintiff cannot ...


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