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Montaque v. Astrue

March 23, 2010

GERALD A. MONTAQUE PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

I. Introduction

Plaintiff Gerald A. Montaque challenges an Administrative Law Judge's ("ALJ") determination that he is entitled to neither disability insurance benefits ("DIB"), nor Supplemental Security Income ("SSI"), under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since August 9, 2000, because ofpain and limitations from a left rotator cuff repair, insulin-dependent diabetes mellitus, numbness and tingling in his limbs, pain in his upper right extremity, left elbow pain, bilateral knee pain, light-headedness, and blurry vision. Plaintiff met the disability insured status requirements of the Act through March 31, 2006.

II. Background

Plaintiff filed an application for DIB on November 29, 2004, and an application for SSI on December 13, 2004. On both applications he alleged an onset of disability date of August 9, 2000*fn1 . His applications were 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 April 20, 2006, before ALJ J. Michael Brounoff, at which time Plaintiff and his attorney appeared. The ALJ considered the case de novo, and on November 15, 2006, issued a decision finding that Plaintiff was not disabled. On May 18, 2007, the Appeals Council denied Plaintiff's request for review.

On July 18, 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.*fn2 The Defendant filed an answer to Plaintiff's complaint on November 1, 2007, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted a Memorandum of Law ("Plaintiff's Brief") on February 11, 2008. On March 17, 2008, Defendant filed a Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings ("Defendant's Brief")*fn3 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*fn4 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 March 31, 2006 (R. at 19);*fn5 (2) Plaintiff has not engaged in substantial gainful activity since August 8, 2002, the alleged onset date (20 C.F.R. §§ 404.1520(b), 404.1571 et.seq., 416.920(b) and 416.971 et. seq.) (R. at 19); (3) Plaintiff has the following severe combination of impairments: status post resection of the distal clavicle and acromion left shoulder (1998), status post left rotator cuff repair and distal clavicle resection left shoulder (9/5/2001), right elbow degenerative changes and chronic obstructive pulmonary disease with a moderate restriction and status post cannabis use (20 C.F.R. §§ 404.1520(c) and 416.920(c)) (R. at 19); (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, 404.1526, 416.920(d), 416.925, and 416.926) (R. at 20); (5) Plaintiff has the residual functional capacity during the course of an eight-hour workday to lift/carry and push/pull up to 10 pounds occasionally with the left upper extremity and 20 pounds overall without right upper extremity restrictions, to stand and/or walk up to six hours and sit for up to six hours, and should avoid overhead and repetitive reaching with the upper left extremity and avoid exposure to respiratory irritants (R. at 21); (6) Plaintiff is unable to perform his past relevant work (20 C.F.R. §§ 404.1565 and 416.965) (R. at 26); (7) Plaintiff was born on December 6, 1960 and was 41 years old on the alleged disability onset date (August 8, 2002), which is defined as a younger individual age 18-44 (20 C.F.R. §§ 404.1563 and 416.963) (R. at 26); (8) Plaintiff has a limited education with formal schooling completed only through the 9th grade. He testified that he was in special education some of those years, but is able to speak, read, and write in English and do basic addition, subtraction, and multiplication (20 C.F.R. §§ 404.1564 and 416.964) (R. at 26); (9) Transferability of job skills is not an issue because Plaintiff's past work is unskilled (20 C.F.R. §§ 404.1568 and 416. 968) (R. at 26); (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), 404.1566, 416.960(c) and 416.966) (R. at 26); and (11) Plaintiff has not been under a disability, as defined in the Social Security Act, from August 9, 2000, through the date of this decision (20 C.F.R. §§ 404.1520(g) and 416.920(g)) (R. at 27). Ultimately, the ALJ determined Plaintiff was entitled to neither a period of disability and disability insurance benefits as set forth in sections 216(i) and 223(d) of the Social Security Act, nor supplemental security income as set forth under section 1614(a)(3)(A) of the Act (R. at 27-28).

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 ignored the opinion of Plaintiff's treating physician that Plaintiff was restricted from all work activity because of left shoulder pain and diabetes, (b) the ALJ ignored relevant evidence that Plaintiff had patellofemoral arthritis in both knees, and moderate degenerative joint disease in his right knee, and failed to properly assess these impairments in the residual functional capacity assessment, (c) the ALJ erroneouslydiscounted Plaintiff's credibility, (d) the ALJ erroneouslydiscounted the assessment of State agency examining physician, Dr. Myra Shayevitz, that Plaintiff was limited to less than the full range of sedentary work*fn6 , and (e) the ALJ failed in his burden at step five of the sequential evaluation because (i) he did not consider all of Plaintiff's exertional and non- exertional limitations when considering the occupational base that might be available to Plaintiff, and (ii) the ALJ erroneously relied on the Grids, absent other vocational evidence, to deny benefits to Plaintiff. 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. 1, 12-24.

a. The ALJ Properly Considered the Opinion of Plaintiff's Treating Physician

Plaintiff's first challenge to the ALJ's decision is that he failed to follow the treating physician rule by ignoring the opinion of Plaintiff's treating physician, Dr. Harry Black, that Plaintiff was restricted from all work activity because of left shoulder pain, diabetes, and the ability to walk and stand for less than two hours in an eight-hour workday (R. at 158-159, 184-185, 208, 214-217). Plaintiff claims Dr. Black's opinion should have been given controlling weight as he was Plaintiff's long-time treating physician and his opinion is consistent with the opinions of other providers who examined or treated Plaintiff. See Plaintiff's Brief, 15-18. The Commissioner argues that the ALJ, as a trier of fact, properly evaluated the medical opinion of Dr. Black, and his decision not to give Dr. Black's opinion controlling weight is consistent with the record as a whole. See Defendant's Brief, pp. 13-18.

According to the "treating physician's rule,"*fn7 the ALJ must give controlling weight to the treating physician's opinion when the opinion is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. § 404.1527(d)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

Even if a treating physician's opinion is deemed not to be deserving of controlling weight, an ALJ may nonetheless give it "extra weight" under certain circumstances. Under C.F.R. ยง 404.1527(d)(1)-(6), the ALJ should consider the following factors when determining the proper weight to afford the treating physician's opinion if it is not entitled to controlling weight: (1) length of the treatment relationship and the frequency of examination, (2) nature and extent of the treatment relationship, (3) supportability of opinion, (4) consistency, (5) specialization of the treating physician, and (6) other factors that are brought to the attention of the court. ...


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