REPORT AND RECOMMENDATION
In November of 2004, Plaintiff Shawn G. Dillingham applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under the Social Security Act. Plaintiff alleges that he has been unable to work since August 15, 2004, due to several physical and mental impairments. The Commissioner of Social Security denied Plaintiff's applications. Plaintiff, by and through his attorneys, Olinsky & Shurtliff, Jaya Shurtliff, Esq., commenced this action seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
On July 22, 2010, 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. 19).
The relevant procedural history may be summarized as follows:
Plaintiff applied for SSI benefits and DIB on November 5, 2004, alleging disability beginning on August 15, 2004. (T at 44, 165).*fn1 The applications were denied initially on February 3, 2005. (T at 29). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"), but completed and signed a written waiver of his right to appear at the hearing. (T at 35).
On January 26, 2006, ALJ Joseph G. Medicis, Jr. issued a decision denying Plaintiff's applications. (T at 16-22). Plaintiff timely requested review by the Appeals Council, which denied the request on May 18, 2006. (T at 6-8). On July 17, 2006, Plaintiff, through counsel, commenced an action in the United States District Court for the Northern District of New York, which was assigned case number 06-CV-862. On April 12, 2007, the Honorable Randolph F. Treece, United States Magistrate Judge, issued a Consent Order remanding the case for further proceedings pursuant to sentence four of 42 U.S.C. § 405 (g). (T at 194-95). On remand, the Appeals Council referred the matter to ALJ Medicis for further proceedings. (196-99).
ALJ Medicis held a hearing on January 17, 2008, in Syracuse, New York. Plaintiff appeared with counsel and testified. (T at 385-416). On February 13, 2008, the ALJ issued a decision denying Plaintiff's applications. (T at 183-93). The ALJ's decision became the Commissioner's final decision on January 17, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 169-171).
Plaintiff timely commenced this action on February 26, 2009. (Docket No. 1). The Commissioner interposed an Answer on July 22, 2009. (Docket No. 8). Plaintiff filed a Brief in support of the action on January 4, 2010. (Docket No. 13). The Commissioner filed a Brief in opposition on February 18, 2010. (Docket No. 18).
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.
For the reasons that follow, it is respectfully recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and that this case be remanded for further administrative proceedings.
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.*fn2
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).
1. Commissioner's Decision
The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through March 31, 2009. (T at 186). The ALJ also determined that Plaintiff had not engaged in substantial gainful activity since August 15, 2004, the alleged onset date. (T at 186). The ALJ concluded that Plaintiff had the following impairments considered severe under the Act: generalized anxiety disorder (mild-to-moderate) and alcohol abuse in questionable remission. (T at 186). However, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in 20 CFR Part 404, Subpart P, Appendix I (the "Listings"). (T at 189).
The ALJ determined that Plaintiff had the residual functional capacity to perform medium work, with some non-exertional limitations. (T at 190). The ALJ concluded that Plaintiff had not demonstrated an inability to perform his past relevant work but, out of an abundance of cautions, he proceeded on the assumption that Plaintiff had made such a showing. (T at 192).
Considering Plaintiff's age (47 on the date of alleged onset), education (limited), work experience, and RFC, the ALJ concluded that Plaintiff was able to perform a significant number of jobs in the national economy. (T at 192). Thus, the ALJ found that Plaintiff had not been under a disability as defined under the Act from the date of onset to the date of the ALJ's decision. (T at 192). As noted above, the ALJ's decision became the Commissioner's final decision on January 17, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 169-171).
Plaintiff challenges the Commissioner's decision. He offers five (5) principal arguments in support of this position. First, Plaintiff contends that the ALJ erred with respect to the severity analysis at step two of the sequential evaluation. Second, he argues that the ALJ failed to follow the treating physician's rule. Third, Plaintiff challenges the ALJ's RFC determination. Fourth, Plaintiff asserts that the ALJ did not properly evaluate his credibility. Fifth, he contends that the ALJ should have consulted a vocational expert. This Court will address each argument in turn.
a. Severity of Impairments
At step two of the sequential evaluation process, the ALJ must determine whether the claimant has a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. See 20 C.F.R. §§ 404.1520(c), 416.920(c). The following are examples of "basic work activities": "walking, standing, sitting, lifting, pushing, pulling, reaching, carrying, or handling... seeing, hearing, and speaking... [u]nderstanding, carrying out, and remembering simple instructions... [u]se of judgment... [r]esponding appropriately to supervision, co-workers and usual work situations." Gibbs v. Astrue, No. 07-Civ-10563, 2008 WL 2627714, at *16 (S.D.N.Y. July 2, 2008); 20 C.F.R. § 404.1521(b)(l)-(5). The claimant bears the burden of presenting evidence establishing severity. Miller v. Comm'r of Social Sec., No. 05-CV-1371, 2008 WL 2783418, at *6-7 (N.D.N.Y. July 16, 2008); see also 20 C.F.R. § 404.1512(a).
Although the Second Circuit has held that this step is limited to "screen[ing] out de minimis claims," Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995), the "mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment" is not, by itself, sufficient to render a condition "severe." Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995). Indeed, a "finding of 'not severe' should be made if the medical evidence establishes only a 'slight abnormality' which would have 'no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727 at *5 (E.D.N.Y. March 19,1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).
In this case, the ALJ rejected Plaintiff's arguments that his diverticulitis, degenerative disc disease of the lumbar spine, transitional rib pain, and unspecified sleep disorder were "severe" impairments. (T at 186). Plaintiff challenges the ALJ's decision as to the degenerative disc disease of his lumbar spine and his diverticulitis. Plaintiff contends that these impairments are severe.
With regard to the lumbar spine, Plaintiff points to x-ray testing indicating spondylosis between the L3 and L5 vertebrae. (T at 311). Plaintiff was treated with pain medication by his primary care physician. (T at 328, 338, 362, 365). A report from the New York Pain Center indicated a diagnosis of lumbar paraspinous tenderness and antalgic gait, with an initial impression of mechanical low back pain and lumbar radiculopathy. (T at 325). MRI results indicated mild disc bulging and early degenerative changes. (T at 326). Plaintiff testified that he experiences "constant" back pain, which he described as a "quite severe" stabbing pain. (T at 396-97). Plaintiff described the pain as a nine or a ten on a scale of one to ten, with ten being the most severe pain. (T at 397). He indicated that the pain would prevent him from sitting for more than ten minutes before needing to change positions. (T at 398). Plaintiff testified that he could only stand for fifteen minutes before needing to sit down. (T at 398).
Concerning diverticulitis, Plaintiff points to September 2005 treatment in the emergency room for abdominal pain, at which point CT scans indicated diverticulitis of the sigmoid colon. (T at 290, 297). Repeat CT scans continued to show diverticulitis, along with other gastrointestinal disorders. (T at 242, 285).
For the following reasons, this Court finds the ALJ's conclusion that these impairments were not "severe" as defined under the Act was supported by substantial evidence. Regarding Plaintiff's lumbar issues, when asked in December 2004 to state the illnesses, injuries, or conditions that limit his ability to work, Plaintiff listed "Sleep disorder/depression," with no mention of any back pain. (T at 49).*fn3 In fact, Plaintiff indicated that his illness, injuries, or conditions did not cause him pain. (T at 50).
In addition, the clinical findings were generally mild and frequently associated with heavy lifting or other rigorous activities. For example, Plaintiff was treated in an emergency room for lower back pain in September 2005 following an altercation with his brother. (T at 304). Images of Plaintiff's lumbar spine showed normal vertebral body height and alignment and no bone destruction. (T at 310). A mild narrowing of the disc space between L4 and L5 was noted. (T at 310). Plaintiff was discharged with Motrin and Tylenol. (T at 305).
An October 2007 visit to the Pain Center was brought on by heavy lifting. (T at 324). Although the treating nurse practitioner gave an initial impression of mechanical low back pain and lumbar radiculopathy (T at 325), subsequent imaging showed only "mild" disc bulging and early degenerative changes, with no evidence of focal disc herniation or nerve root entrapment. (T at 326).
With respect to diverticulitis, a July 2006 treatment note indicated that Plaintiff's condition was "better now" and he was not planning to see a gastrointestinal specialist. (T at 360). Dr. Ajoy Roy performed a colonoscopy and esophagogastroduodenoscopy on April 12, 2007. Notes from a follow-up visit indicated that Plaintiff had no complaints and had not experienced any return of abdominal pain. (T at 314). Endosonographic images of the rectum were taken on December 12, 2007, and noted to be "unremarkable." (T at 320).
As noted above, the claimant bears the burden of proving severity. In light of the foregoing, this Court finds that substantial evidence supports the ALJ's conclusion that Plaintiff did not meet that burden with respect to these two impairments.
Lastly, because the ALJ concluded that Plaintiff's anxiety disorder was a severe impairment and continued with the sequential analysis, any errors in his findings at step two of the analysis were harmless. See Maziarz v. Secretary of Health & Human Services, 837 F.2d 240, 244 (6th Cir. 1987)("[T]he Secretary found that Maziarz suffered from the severe impairment of coronary artery disease, status post right coronary artery angioplasty and angina pectoris. Accordingly, the Secretary continued with the remaining steps in his disability determination. Since the Secretary properly could consider claimant's cervical condition in determining whether claimant retained sufficient residual functional capacity to allow him to perform substantial gainful activity, the Secretary's failure to find that claimant's cervical condition constituted a severe impairment could not constitute reversible error."); McCartney v. Commissioner of Social Sec., Civil Action No. 07-1572, 2009 WL 1323578, at *16 (W.D.Pa. May 8, 2009)("Even if the Court was to find that the ALJ did err in excluding headaches from the list of severe impairments, any such error was harmless because the ALJ found other severe impairments at step two and proceeded through the sequential evaluation on the basis of Plaintiff's severe and non-severe impairments."); Portorreal v. Astrue, No. C.A. 07-296ML, 2008 WL 4681636, at *3 (D.R.I. Oct. 21, 2008).
Accordingly, this Court finds no reversible error as to this aspect of the ALJ's decision does not ...