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Brantell v. Astrue

March 19, 2010

DARYL S. BRANTELL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER

1. Plaintiff Daryl S. Brantell 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 due to mental illness, depression, anxiety, paranoia, hearing problems, breathing problems, and lower back problems since March 31, 2004. (R. at 125, 701-2.)*fn1 Plaintiff contends that his impairments render him unable to work. He therefore asserts that he is entitled to disability benefits under the Act.

2. Plaintiff filed an application for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") on August 5, 2004. (R. at 121-23.) Plaintiff's applications were initially denied (R. at 89-91), prompting Plaintiff to request a hearing before an ALJ (R. at 85). The ALJ conducted a hearing on January 8, 2007, at which time Plaintiff appeared with counsel and tesdtified. (R. at 697-727.) The ALJ held a supplemental hearing on February 27, 2007. (R. at 728-78.) The ALJ considered the case de novo, and on February 28, 2008, issued a written decision denying Plaintiff's applications for benefits. (R. at 16-46.) On October 30, 2008, the Appeals Council denied Plaintiff's request for review. (R. at 6-8.) Plaintiff filed this action challenging Defendant's final decision on December 4, 2008.*fn2

3. The parties subsequently filed Motions for Judgment on the Pleadings.*fn3 After full briefing, this Court deemed oral argument unnecessary and took the motions under advisement on July 13, 2009. For the following reasons, Defendant's motion is granted and Plaintiff's motion 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 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 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 as defined 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, 482 U.S. 137, 140-42, 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 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 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 the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since March 30, 2004 (R. at 24); (2) Plaintiff's "degenerative disc disease at L3-4 and L4-5 with minimal narrowing of the disc spaces and small anterior osteophytes; minimal scoliosis with convexity to the right; obstructive lung disease ('COPD'); nicotine dependence; peripheral sensory neuropathy in his left hand status post amputation of the tips of his left thumb, left index and left middle fingers; borderline intellectual functioning; depressive disorder, not otherwise specified; and methadone dependence" constitute "severe" medically-determinable impairments within the meaning of the Act (R. at 25); (3) Plaintiff's medically-determinable impairments or a combination of impairments do not meet or medically equal any of the impairments listed in Appendix 1, Subpart P, Regulation No. 4 (R. at 25-29); (4) Plaintiff retained the residual functional capacity ("RFC") to perform light work with certain limitations (R. at 29-43); and (5) Plaintiff is able to perform his past relevant work as an industrial cleaner (R. at 43).

In light of the ALJ's finding that Plaintiff was capable of performing his past work as an industrial cleaner, the ALJ was not required to determine if there was other work which he is capable of performing. See 20 C.F.R. § 404.1520. Nonetheless, the ALJ found that Plaintiff was capable of performing work that existed in significant numbers in the national economy. (R. at 44.) In particular, the ALJ found that Plaintiff could perform the work of an undercoater, laminating machine offbearer, counter clerk (photofinishing), surveillance system monitor, and housekeeping cleaner. (R. at 44.) Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act from March 31, 2004, through February 28, 2008, the date of the ALJ's decision. (R. at 45-46.)

10. Plaintiff advances seven challenges to the ALJ's decision. First, Plaintiff argues that the ALJ erred by not re-contacting Dr. Jeffrey Kashin. (Pl.'s Mem., Docket No. 7, pp. 4-8.) In a report dated December 21, 2006, Dr. Kashin opined that Plaintiff was psychiatrically disabled. (R. at 537.)*fn4 Plaintiff argues that the ALJ erred by failing to re-contact Dr. Kashin "for a more specific medical interpretation of why he was 'disabled.'" (Pl.'s Mem., p. 7.) Plaintiff argues that remand is ...


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