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Morrow v. Astrue

July 30, 2010


The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge



A. Procedural History

On February 7, 2007, Plaintiff Jamielyn Morrow applied for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Administrative Transcript ("T") 20, 66-71. On March 7, 2007, the applications were denied by the Social Security Administration. T 20.

On November 5, 2008, a hearing was held before an Administrative Law Judge ("ALJ"). T 447-62. On February 19, 2009, the ALJ determined that Plaintiff was not disabled. T 17-29. Plaintiff appealed to the Appeals Council. T 53. On July 29, 2009, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T 4-7. Plaintiff commenced this action on August 31, 2009. Dkt. No. 1.

B. The Contentions

Plaintiff makes the following claims:*fn2

1. The Commissioner did not meet his burden to prove that Plaintiff can perform work. Dkt. No. 11 at 11-12.

2. The ALJ erred in concluding that Plaintiff had the residual functional capacity ("RFC") to perform work. Dkt. No. 11 at 12-14.

3. Plaintiff is disabled by her mental illness either by itself or in combination with her other impairments. Dkt. No. 11 at 14-19.

4. Plaintiff did not have the RFC to perform work because of her non-exertional limitation of pain. Dkt. No. 11 at 19-20.

5. The ALJ erred in not using a vocational expert. Dkt. No. 11 at 20.

6. The ALJ violated the treating physician rule in denying benefits to Plaintiff. Dkt. No. 11 at 21-25.

7. The ALJ erred as a matter of law in not crediting Plaintiff's testimony regarding her limitations. Dkt. No. 11 at 25-28.

8. The ALJ erred in determining that Plaintiff was not disabled because she did not continue with her psychological therapy. Dkt. No. 11 at 28-30.

Defendant disagrees, and argues that the decision should be affirmed. Dkt. No. 13.


A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or supplemental security income benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental 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 twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security Administration ("SSA") has promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520. "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R. §§] 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled.[] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.[] [20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f), 416.9630(c). Barnhart v. Thomas, 540 U.S. at 24-25 (footnotes omitted).

The plaintiff-claimant bears the burden of proof regarding the first four steps. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002). If the plaintiff-claimant meets his or her burden of proof on all four steps, the burden then shifts to the defendant-Commissioner to prove that the plaintiff-claimant is capable of performing other jobs which exist in significant numbers in the national economy. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986. In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Ferraris v. Heckler, 728 F.2d 582, 587-88 (2d Cir. 1984).

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams o/b/o Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938)). "To determine on appeal whether an 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, 859 F.2d at 258 (citations omitted). However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert. denied, 459 U.S. 1212 (1983).


Plaintiff, who was twenty-two years old at the time of the hearing, completed high school. T 450-51. Plaintiff lives with some family members. T 450. She has two children. T 454.

Plaintiff last worked as a certified nurses' assistant. T 110, 451. She previously worked in various positions, including as a housekeeper and kitchen helper. T 110.

Plaintiff claimed disability due to problems with her knees, hip, and back, as well as depression, bipolar disorder, and anxiety. T 109, 118. She also states that she experiences difficulty reading. T 456.


In determining that Plaintiff was not disabled, the ALJ made the following findings:

1. Plaintiff had not engaged in substantial gainful activity since the alleged onset date. T 22.

2. Plaintiff's bipolar disorder II and post-traumatic stress disorder ("PTSD") were severe impairments. T 22.

3. Plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. T 22.

4. Plaintiff had the RFC to perform a full range of work at all exertional levels but with the following non-exertional limitations: limited to understanding, remembering, and carrying out simple, routine repetitive tasks in a low stress work environment with minimal interaction with the public. T 25.

5. Plaintiff is unable to perform any past relevant work. T 28. Considering Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. T 28. Therefore, Plaintiff is not disabled. T 28-29.


A. Listed Impairments

Plaintiff summarily argues that she meets Listings 12.04 and 12.06. Dkt. No. 11 at 14-19. Plaintiff vaguely refers to certain diagnoses and other information contained in the record. Id. She also summarily claims that the ALJ failed to discuss the paragraph B and C criteria of the listings in question. Id. Defendant argues that the ALJ properly determined that Plaintiff did not meet or equal a listed impairment. Dkt. No. 13 at 5-6. Defendant also points out that the ALJ clearly discussed the criteria set forth in paragraphs B and C. Id.

A claimant is automatically entitled to benefits if his or her impairment(s) meets criteria set forth in "the Listings." 20 C.F.R. § 404.1520(d). The burden is on the plaintiff to present medical findings that show that his or her impairments match a listing or are equal in severity to a listed impairment. Zwick v. Apfel, No. 97 Civ. 5140, 1998 WL 426800, at *6 (S.D.N.Y. July 27, 1998). In order to show that an impairment matches a listing, the claimant must show that his or her impairment meets all of the specified medical criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20 C.F.R. § 404.1525(d). If a claimant's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify. Sullivan, 493 U.S. at 530.

Listing 12.04 provides as follows:

12.04 Affective Disorders: Characterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation. The required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied.

A. Medically documented persistence, either continuous or intermittent, of one of the following:

1. Depressive syndrome characterized by at least four ...

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