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Ford v. Astrue

September 24, 2010




In January of 2004, Plaintiff Kenneth Ford filed an application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") under the Social Security Act, alleging that he had been unable to work since December 1, 2001. The Commissioner of Social Security denied Plaintiff's application.

Plaintiff, acting through his attorney, commenced this action on October 6, 2006, by filing a Complaint in the United States District Court for the Northern District of New York. Compl. (Dkt. No. 1). Plaintiff seeks judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3). For the reasons that follow, the Commissioner's findings are affirmed and Defendant's Motion for judgment on the pleadings is granted.


At the time the ALJ's decision was issued, Plaintiff was a 40-year old individual with an 11th grade education; he received his GED in 1989. R. 17, 76.*fn1 He had previously been employed as a pizza maker, food prep worker, and pizza deliveryman. R. 17, 80. Plaintiff alleged that he became disabled on December 31, 2001 due to a combination of impairments. R. 17, 70. He has a history of low back pain resulting from a back and neck injury in 1992 and a history of head trauma sustained when he was 18 years old. R. 227. In 1998, Plaintiff's then-treating chiropractor, Robert Otten, DC, assessed him as having a "marked to moderate disability" in connection with a Workers' Compensation hearing. R. 153. No medical records exist prior to the expiration of claimant's insured status for DIB on December 31, 2001, the alleged onset date. R. 72-73, 82-83. A letter from Karyn Dornemann, DC, dated March 17, 2004 indicates that she treated Plaintiff prior to August 6, 2001 for a work-related injury and diagnosed brachial neuritis and lower back pain/lumbosacral joint disorder. R. 155. Because she had not seen Plaintiff in almost three years, however, she was unable to provide an assessment of his physical capacity in support of his application for SSI and DIB benefits. R. 155. Plaintiff's primary care physican, Elizabeth Howard, D.O., provided records beginning on January 22, 2004 when Plaintiff made no report of back pain.

R. 215. At that point, Dr. Howard assessed Plaintiff with sinusitis, infection of the left eye, depression/anxiety, drug and alcohol abuse by history, and joint pain. R. 215. Dr. Howard's progress notes assess Plaintiff with "diffuse arthralgias" due to Plaintiff's complaints of pain in his hips, knees, shoulders, low back, and fingers. R. 202--15. Dr. Howard noted Plaintiff was obese and recommended weight loss and an exercise regime; she also referred Plaintiff for mental health treatment. R. 215-16.

In June 2005, Plaintiff was referred to neurologist Lore Lisa Garten, M.D. for complaints of numbness and tingling in the legs, pain in the back and hips, as well as "shaking" in the legs. R. 227--31. Dr. Garten ordered an MRI of the brain, to rule out demyelinating disease, and an EMG of the lower extremities to rule out neuropathy or radiculopathy. R. 227--31. Both tests were essentially normal. R. 227--31. At the request of the Social Security Administration ("SSA"), Plaintiff was examined by William Rogers, M.D., on March 16, 2005. R. 195--201. Plaintiff described back pain as present daily, aggravated by lifting, and numbness of both thighs aggravated by prolonged standing. R. 195--201. Upon examination, Dr. Rogers found Plaintiff to be obese, found a full range of motion in the cervical spine, but reduced motion in the lumbar spine, and a full range of motion in both hips, knees, and ankles. R. 197. A motor exam was 5/5 in all muscular groups in both upper and lower extremities, and Plaintiff was able to make a full grip. R. 197. In addition to obesity, Dr. Rogers assessed Plaintiff with a history of chronic low back pain and arthalgias with an unremarkable exam. R. 197.

Plaintiff also initiated mental health treatment in January 2004 at the Columbia County Mental Health Center for dysthymic disorder and polysubstance dependence in sustained full remission. R. 220--25. Plaintiff was treated by therapist Angela Schwarze, LMSW, and provided with medication by psychiatrist, Carl Rinzler, M.D. According to Dr. Rinzler, Plaintiff is noted to have completed a substance abuse course of treatment with Twin County Substance Abuse services as an outpatient and has described problems such anxiety, irritability, difficult concentrating, low tolerance to frustration, and sleep difficulties. R. 232--39. Finally, at the request of the State agency, Plaintiff underwent psychiatric evaluation by Joseph Bernier, Ph.D. on March 23, 2005. R. 185--94. At this examination, Plaintiff described a history of anxiety, difficulty concentrating, and stated that he did not like to be outside or around people.

The relevant procedural history may be summarized as follows: Plaintiff filed an application for DIB and SIS benefits on January 8, 2004, alleging disability beginning December 1, 2001. R. 16. The application was denied initially and upon reconsideration. R. 29--34. Plaintiff timely requested a hearing before an Administrative Law Judge (ALJ). R. 16. On July 29, 2005, Plaintiff appeared, along with his attorney, in Albany, New York, and testified at a hearing before ALJ Thomas P. Zolezzi. R. 16, 244--90; Pl.'s Br. (Dkt. No. 6) at 2. On November 22, 2005, ALJ Zolezzi issued a written decision denying the application for benefits. R. 16--25. On November 30, 2005, Plaintiff filed a timely request for review by the Appeals Council. R. 10--12. The ALJ's decision became the Commissioner's final decision on August 23, 2006, when the Appeals Council denied Plaintiff's request for review. R. 4--6.

Plaintiff, through counsel, commenced this action on October 6, 2006. (Dkt. No. 1). The Commissioner interposed an Answer on January 10, 2006. Def.'s Answ. (Dkt. No. 5). Plaintiff filed a supporting Brief on February 1, 2007. Pl.'s Br.. The Commissioner filed a Memorandum in support on April 18, 2007. Mem. in Support. (Dkt. No. 10). Both parties have moved for judgment on the pleadings. Dkt. Nos. 6, 10.


District courts have jurisdiction to review claims contesting a final decision by the Commission of Social Security denying disability benefits. 42 U.S.C. § 405(g); 42 U.S.C. § 1383(c)(3). In reviewing any such claim, a district court may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, it must defer to the Commissioner's determination unless the correct legal standards were not applied or the determination is not supported by substantial evidence in the record. 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.").

"'Substantial evidence' requires more than a mere scintilla of evidence, yet less than a preponderance." Sanchez v. NLRB, 785 F.2d 409 (2d Cir. 1986). It has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "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) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). Where evidence is susceptible to more than one rational interpretation, a district court 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) (citation omitted); see also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Barnett v. Apfel, 12 F. Supp. 2d 312, 314 (N.D.N.Y. 1998).

A district court has the authority to affirm, reverse, or modify a final decision of the Commissioner with or without remand. 42 U.S.C. § 405(g). Granting judgment on the pleadings is appropriate where the material facts are undisputed and where a court may make a judgment on the merits with reference only to the contents of the pleadings. Fed. R. Civ. P. 12(c); Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639 (2d Cir. 1988). Remand is warranted where there are gaps in the record and further development of the evidence is needed, or where the ALJ has applied an improper legal standard. See Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2004); Rosa v. Callahan, 168 F.3d 72, 82--83 (2d Cir. 1999); Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980). Remand is most appropriate where further findings or explanation will clarify the rationale for the ALJ's decision. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996) (citation omitted). Additionally, remand is appropriate to allow for the consideration of additional new evidence which is material to the case and where good cause exists for the failure to submit that evidence in prior proceedings. Melkonyan v. Sullivan, 501 U.S. 89 (1991); Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983). By contrast, reversal and remand solely for calculation of benefits is appropriate when there is "persuasive proof of disability" and further development of the record would not serve any purpose. Rosa, 168 F.3d at 83; Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 644 (2d Cir. 1983); Parker, 626 F.2d at 235.


A. Legal Standard

Under the Social Security Act, an individual is disabled if he or she is unable "to do 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 12 months." 20 C.F.R. § 416.905(a). The SSA has established a five-step sequential evaluation process to determine whether a claimant over the age of 18 is disabled under the Social Security Act. See 20 C.F.R. §§ 416.920, 404.1520; see also Bowen v. Yuckert, 482 U.S. 137 (1987) (upholding the validity of this evaluation process). The plaintiff bears the burden of proof for the first four steps, and the Commissioner bears that burden in step five. See Bowen, 482 U.S. at 146; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984).

20 C.F.R. § 404.1520 details the SSA's five-step analysis: in step one, the ALJ considers whether the claimant is currently engaged in substantial gainful activity.*fn2 If the claimant is not engaged in such activity, the ALJ advances to step two of the analysis and considers whether the claimant has a severe impairment meeting the "durational requirement"*fn3 and significantly limiting his or her physical or mental ability to perform basic work activities. In making this determination, the ALJ does not consider the claimant's age, education, or work experience. Assuming the ALJ finds the claimant has one or more severe impairment(s), the ALJ continues to step three and determines whether the impairment(s) meets or equals any of those listed in Appendix 1, Subpart P of Regulation No. 4 ("the Listings"). If the ALJ concludes that the claimant's impairment(s) meets or equals one or more of the Listings, the claimant shall be deemed disabled. If the claimant's impairment(s) does not meet or equal one of the Listings, the fourth step of the evaluation requires the ALJ to assess whether, despite the claimant's severe impairment, the claimant's residual functional capacity ("RFC")*fn4 allows her to perform his or her past work. If the answer to that inquiry is that the claimant is unable to perform his or her past work, the fifth step asks the ALJ to determine, in light of the claimant's RFC and other vocational factors, including the claimant's age, education, and work experience, whether the claimant could perform other work that exists in significant numbers in the national economy. 20 C.F.R. § 404.1520; 20 C.F.R. § 404.1560; Heckler v. Campbell, 461 U.S. 458, 460 (1983).

B. Analysis

1. Commissioner's ...

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