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Outley v. Astrue

August 26, 2010

VIVIAN A. OUTLEY PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. Introduction

In February of 2005, Plaintiff Vivian Outley filed an application for Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges she has been unable to work since January 25, 2003, due to arthritis, knee replacement, back impairment, depression, schizophrenia, anxiety, and posttraumatic stress disorder. The Commissioner of Social Security ("Commissioner") denied Plaintiff's application.

Plaintiff, through her attorneys, Legal Services of Central New York, Christopher Cadin, Esq., of counsel, commenced this action on February 5, 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 decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

On December 17, 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. 17).

II. Background

The relevant procedural history may be summarized as follows: Plaintiff initially applied for SSI benefits on February 17, 2005, alleging disability beginning on January 25, 2003 (R. at 24, 48).*fn1 Plaintiff alleged disability due to arthritis, knee replacement, back impairment, depression, schizophrenia, anxiety, and posttraumatic stress disorder. The application was denied (R. at 25-27). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ") (R. at 28). A hearing was held in Syracuse, New York, on September 7, 2007, before ALJ Brounoff (R. at 472). Plaintiff, represented by counsel, appeared and testified (R. at 472). On November 30, 2007, ALJ Brounoff issued a decision finding Plaintiff not disabled (R. at 13-23). Plaintiff filed a request for review of that decision (R. at 12). The ALJ's decision became the Commissioner's final decision on December 19, 2008, when the Appeals Council denied Plaintiff's request for review (R. at 5-9).

Plaintiff, through counsel, timely commenced this action on February 5, 2009. (Docket No. 1). The Commissioner interposed an Answer on May 21, 2009. (Docket No. 8). Plaintiff filed a supporting Brief on September 8, 2009. (Docket No. 13). The Commissioner filed a Brief in opposition on October 15, 2009. (Docket No. 16).

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 recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and that this case be remanded for further proceedings.

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

The Commissioner has established a five-step sequential evaluation process*fn2 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 (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. The Commissioner's Decision

The ALJ followed the sequential analysis and concluded that Plaintiff was not disabled within the meaning of the Act. (R. at 16). At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 7, 2005, her protective filing date (R. at 18).

At step two, the ALJ concluded that Plaintiff had the following severe impairments: "symptoms status post left total knee replacement, lateral meniscus tear and lateral collateral ligament tear of the right knee, lumbar degenerative disc disease at L5-S1 with impingement of the left L5 nerve root, depression, anxiety, and paranoid schizophrenia" (R. at 18). The ALJ also found that Plaintiff's gastroesophageal reflux disease, asthma, and diagnoses to "rule out" schizoaffective disorder and posttraumatic stress disorder were not severe impairments within the meaning of the regulations (R. at 18).

At step three, the ALJ found that Plaintiff's impairments, individually or in combination, did not meet an impairment set forth in the Listings (R. at 19). At step four, the ALJ considered Plaintiff's subjective complaints of pain and other symptoms, but found her "not fully credible" (R. at 21).

The ALJ also considered the medical opinions of record and granted limited weight to the opinions of Plaintiff's treating psychiatrist, Jean D'Souza, M.D. and "greater weight" to the opinions of consultative examining psychologist, Kristen Barry, Ph.D. (R. at 20). The ALJ also considered, but did not explicitly weigh, the opinions and findings of consultative examining physician Kalyani Ganesh, M.D., state agency disability analyst J. Shelp, Plaintiff's psychologist Paula Trief, Ph.D., and consultative reviewing psychiatrist Zenaida Mata, M.D. (R. at 20).

Based on these conclusions, that ALJ found that Plaintiff retained the residual functional capacity ("RFC") to lift, carry, push or pull ten pounds occasionally and less than ten pounds frequently, stand and walk for two hours in a workday, sit for six hours a day, and only occasionally climb, balance, stoop, kneel, crouch, or crawl (R. at 19). Further, the ALJ found Plaintiff was "limited to low stress work, defined as work that does not require working at a production pace, does not involve supervisory responsibilities, does not require multi-tasking, and does not requires the ability to make more than simple decisions," but still capable of the mental demands of unskilled work

(R. at 19, 22).

The ALJ then concluded Plaintiff could not perform her past relevant work (R. at 21-22). At step five, considering Plaintiff's RFC and the testimony of vocational expert ("VE") Victor Alberigi, the ALJ found that there were jobs in the national economy that Plaintiff could perform, such as weight tester/inspector, waxer/grinder or polisher, and stone setter (R. at 22). ...


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