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Aqil K. Al-Shimary v. Commissioner of Social Security

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


December 16, 2010

AQIL K. AL-SHIMARY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff Aqil K. Al-Shimary brought this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying his applications for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). Currently before this Court are Plaintiff's and Defendant's cross-motions for judgment on the pleadings or, in the alternative, for summary judgment.

II. BACKGROUND

Plaintiff, then 29, filed applications for SSI and DIB on June 22, 2004. See Administrative Record ("AR") at 58-61, 290-92. In his disability report, Plaintiff cited IGA neuropathy, a type of kidney disorder, as the condition that limited his ability to work. See id. at 81. Plaintiff maintained that he had been unable to work since February 23, 2004. See id. at 90. The Social Security Administration denied Plaintiff's claim on September 23, 2004. See id. at 29. Plaintiff filed a timely request for a hearing on November 15, 2004. See id. at 35. The hearing occurred via videoconference on September 20, 2005, in Syracuse, New York before Administrative Law Judge ("ALJ") Michael J. Brounoff. See id. at 298. Attorney Wayne Chariff represented Plaintiff, who appeared and testified. See id. at 298, 300. Plaintiff's girlfriend, Julie Karl, and a vocational expert (the "VE"), David Sypher, also appeared and testified. See id. at 298, 336, 342.

ALJ Brounoff considered the case de novo and issued a written decision denying Plaintiff's application on December 30, 2005. See AR at 17-25. In his decision, ALJ Brounoff made the following findings:

1) Plaintiff has not engaged in substantial gainful activity since the alleged onset date.

2) Plaintiff has the following severe impairments: IGA neuropathy and high blood pressure.

3) Plaintiff does not have an impairment or combination of impairments that meet or medically equal one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.

4) Plaintiff has the residual functional capacity ("RFC") to lift twenty pounds occasionally and ten pounds frequently, sit for at least six hours of an eight-hour workday, stand or walk for at least two hours of an eight-hour workday, use arm or leg controls to push or pull up to twenty pounds occasionally or ten pounds frequently, and climb stairs slowly.

5) Plaintiff is unable to perform his past relevant work.

6) Plaintiff was born on September 22, 1974, and was twenty-nine on the alleged disability onset date; he meets the definition of a younger individual, which here, is defined as under age fifty.

7) Plaintiff does not have transferable job skills.

8) Based on his RFC, Plaintiff is capable of performing a significant range of light work.

9) Given Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform.

10) Plaintiff has not been under a "disability" within the Act's definition of that term at any time through December 30, 2005, the date of the ALJ's decision.

See id. at 17-25.

The ALJ's decision became the Commissioner's final decision on or about November 2, 2006, when the Appeals Council of the Social Security Administration denied Plaintiff's request for review. See AR at 6-9.

Plaintiff commenced this action on December 29, 2006, see Dkt. No. 1, and filed a supporting brief on December 31, 2007, see Dkt. No. 8. Defendant filed a response brief on March 17, 2008. See Dkt. No. 13.

III. DISCUSSION

A. Standard of Review

Absent legal error, a court will uphold the Commissioner's final determination if there is substantial evidence to support it. See 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence to mean "'more than a mere scintilla'" of evidence and "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).

To be eligible for SSI and DIB, a claimant must show that he suffers from a disability within the meaning of the Act. The Act defines "disability" as an inability to engage in substantial gainful activity by reason of a medically determinable physical or mental impairment that can be expected to cause death or last for twelve consecutive months. See 42 U.S.C. § 1382c(a)(3)(A). To determine if a claimant has sustained a disability within the meaning of the Act, the ALJ follows a five-step process:

1) The ALJ first determines whether the claimant is engaged in substantial gainful activity. See 20 C.F.R. §§ 416.920(b), 416.972. If so, the claimant is not disabled. See 20 C.F.R. § 416.920(b).

2) If the claimant is not engaged in substantial gainful activity, the ALJ determines if the claimant has a severe impairment or combination of impairments. See 20 C.F.R. § 416.920(c). If not, the claimant is not disabled. See id.

3) If the claimant has a severe impairment, the ALJ determines if the impairment meets or equals an impairment found in the appendix to the regulations (the "Listings"). If so, the claimant is disabled. See 20 C.F.R. § 416.920(d).

4) If the impairment does not meet the requirements of the Listings, the ALJ determines if the claimant can do his past relevant work. See 20 C.F.R. § 416.920(e), (f). If so, he is not disabled. See 20 C.F.R. § 416.920(f).

5) If the claimant cannot perform his past relevant work, the ALJ determines if he can perform other work, in light of his residual functional capacity, age, education, and experience. See 20 C.F.R. § 416.920(f), (g). If so, then he is not disabled. See 20 C.F.R. § 416.920(g). A claimant is only entitled to receive disability benefits if he cannot perform any alternative gainful activity. See id.

For this test, the burden of proof is on the claimant for the first four steps and on the Commissioner for the fifth step. See Balsamo v. Chater 142 F.3d75, 80 (2d Cir. 1998) (quotation omitted).

B. The ALJ's assessment of medical opinions

When assessing the opinions of a claimant's physicians, an ALJ must give controlling weight to the opinion of a treating physician where it is "supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence in the record." Audi v. Astrue, No. 07-CV-1220, 2009 WL 3199481, *13 (N.D.N.Y. Sept. 30, 2009) (quoting Anderson v. Astrue, 2009 WL 2824584, at *9 (E.D.N.Y. Aug. 28, 2009)); see also 20 C.F.R. § 404.1527(d)(2). However, "'the opinion of the treating physician is not afforded controlling weight where . . . the treating physician issued opinions that are not consistent with . . . the opinions of other medical experts[.]'" Arruda v. Comm'r of Soc. Sec., 363 Fed. Appx. 93, 95 (2d Cir. 2010) (quotation omitted).*fn1 If an ALJ does not give controlling weight to a treating physician's opinion, he must "'give good reasons'" for not doing so. See Audi, 2009 WL 3199481, at *13 (quotation omitted). In such cases, the ALJ should consider "'(i) the frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; and (iv) whether the opinion is from a specialist.'" Id.(quoting Anderson v. Astrue, 2009 WL 2824584, at *9 (E.D.N.Y. Aug. 28, 2009) (quoting Clark v. Comm'r of Social Security, 143 F.3d 115, 118 (2d Cir. 1998))); see also 20 C.F.R. § 404.1527(d)(2).*fn2

In this case, Plaintiff's treating medical source was Dr. Kevin O'Brien, a nephrologist, who issued reports on April 30, 2004, March 21, 2005, and September 29, 2005. See AR at 237-38, 252-56, 287-88. In his April 2004 report, Dr. O'Brien stated that Plaintiff could lift twenty pounds occasionally and ten pounds frequently, could sit for six hours and stand or walk for two hours in an eight-hour workday, and could operate arm or leg controls. See AR at 238. In this report, Dr. O'Brien discouraged climbing and indicated that Plaintiff's condition caused weakness, swelling, and loss of muscle mass. See AR at 237-38. In his March 21, 2005 report, Dr. O'Brien stated that Plaintiff could not perform even low stress jobs, that he could sit and stand or walk for less than two hours each out of an eight-hour workday, that he would require a thirty-minute break from work every fifteen minutes, and that he would likely miss work more than four times per month due to his renal condition. See AR at 252-55. Finally, in his September 29, 2005 report, Dr. O'Brien stated that Plaintiff's chronic swelling made it difficult for him to walk or close his hands and that, given the chronic nature of Plaintiff's disease, he would eventually suffer from progressive kidney disease, which might result in the need for a transplant. See AR at 287.

The ALJ did not give controlling weight to any one of Dr. O'Brien's reports, and he did not err when he gave substantial weight to Dr. O'Brien's April 30, 2004 medical assessment. See AR at 22. This is because Dr. O'Brien was a treating source, substantial evidence supported his April 30, 2004 assessment, and that assessment was consistent with multiple sources in the record.*fn3

Finally, it is worth noting that the ALJ also had good reasons for the weight he accorded Dr. O'Brien's April 30, 2004 assessment, consistent with the considerations of 20 C.F.R. § 404.1527(d)(2): (1) plaintiff treated with Dr. O'Brien for nearly two years; (2) of all of Dr. O'Brien's assessments of Plaintiff, his April 30, 2004 report found the most support in the record;

(3) this evaluation is consistent with the record as a whole; and (4), as a nephrologist, Dr. O'Brien is a medical specialist. See generally AR.

In sum, since substantial evidence in the record supports the weight that the ALJ assigned to the medical opinions in the record and because the ALJ gave good reasons for his assignments of weight, the Court finds that the ALJ did not err in assessing the medical opinions in this case.

C. Plaintiff's credibility

When assessing a claimant's credibility, the ALJ must consider both his medical records and his reported symptoms. See 20 C.F.R. § 404.1529. A claimant's statements about his condition, on their own, are not enough to establish disability. See id.; see also SSR 96-7p, *1. A claimant's complaints of pain and limitation are, however, "'entitled to great weight where . . . [they are] supported by objective medical evidence.'" Futia v. Astrue, No. 1:06-CV-0961, 2009 WL 425657, *6 (N.D.N.Y. Feb. 19, 2009) (quoting Simmons v. U.S.R.R. Retirement Bd., 982 F.2d 49, 56 (2d Cir. 1992)).

If a claimant's testimony is not supported by medical evidence, the ALJ employs a two-step process to evaluate a plaintiff's reported symptoms. See SSR 96-7p, at *2. First, the ALJ determines if the plaintiff has medically determinable impairments that could produce the alleged symptoms. See 20 C.F.R. § 404.1529(a); see also SSR 96-7p, at *2. Second, if impairments do exist, the ALJ evaluates the intensity, persistence, and limiting effects of the symptoms to determine the extent to which the symptoms limit the plaintiff's ability to work. See 20 C.F.R. § 404.1529(a); see also SSR 96-7p, at *2. In so doing, the ALJ considers (i) claimant's daily activities; (ii) the location, duration, frequency, and intensity of the claimant's symptoms; (iii) precipitating and aggravating factors; (iv) type, dosage, effectiveness, and side effects of any medication the claimant has taken to relieve symptoms; (v) other treatment the claimant has received to relieve symptoms;

(vi) any measures the claimant has taken to relieve symptoms; and (vii) any other factors concerning the claimant's functional limitations and restrictions due to symptoms. See 20 C.F.R. 416.929(c)(3) (i)-(vii); see also SSR 96-7p, at *3.

In addition, where an ALJ assesses a plaintiff's subjective statements of pain in light of medical evidence that indicates that the plaintiff can work and finds that the plaintiff's statements cannot overcome the medical evidence to the contrary, "there is no need for further articulation by the ALJ regarding the plaintiff's credibility." Francis v. Astrue, No. 09-1826, 2010 WL 3432839, *4 (D. Conn. Aug. 30, 2010).

Here, the ALJ determined that substantial objective medical evidence did not support the Plaintiff's subjective statements of limitation; therefore, he employed the two-step credibility-assessment process. See SSR 96-7p, at *2. First, the ALJ found that Plaintiff's renal problems could be the source of his pain. See AR at 20. Second, the ALJ deemed that Plaintiff's complaints regarding the intensity, persistence, and effects of the pain were inconsistent with his daily activities and with Dr. O'Brien's finding that Plaintiff was in remission. See id. at 20-21. Since neither the medical records nor Plaintiff's daily activities supported Plaintiff's statements of limitation, the ALJ concluded that Plaintiff's statements about his limitations were not entirely credible. See id.

The ALJ used the correct procedure to evaluate Plaintiff's subjective complaints in light of medical evidence that indicated that Plaintiff could work. Therefore, the ALJ did not need to further address his finding that Plaintiff's statements were less credible in light of contrary medical evidence. Accordingly, the Court finds that the ALJ did not err in assessing the credibility of Plaintiff's subjective statements of limitation.

D. Plaintiff's capacity to engage in substantial gainful employment

When a claimant cannot perform his past relevant work, an ALJ may seek the opinion of a VE regarding which jobs the claimant could perform, often phrased in terms of the capabilities of a hypothetical person in a similar medical situation to the claimant. See 20 C.F.R. § 404.1566. Where the ALJ seeks the VE's opinion regarding a hypothetical claimant with limitations that correspond to the actual claimant's RFC, "[t]he Commissioner may rely on [the] vocational expert's testimony concerning the availability of jobs suited to [the] hypothetical person's capabilities so long as the hypothetical is based on substantial evidence." Mancuso v. Astrue, 361 Fed. Appx. 176, 179 (2d Cir. 2010) (citation omitted). However, a VE's testimony will not constitute substantial evidence to support an ALJ's decision where the ALJ relies on a VE's testimony regarding a hypothetical claimant whose limitations do not mirror the actual claimant's. See Aubeuf v. Schweiker, 649 F.2d 107, 114-15 (2d Cir. 1981); see also Gilliam v. Califano, 620 F.2d 691, 693-94 (8th Cir. 1980) (holding that a VE's testimony was "fatally deficient" where the hypothetical question did not identify all of the claimant's limitations (citations omitted)).

Here, ALJ Brounoff concluded that Plaintiff had the RFC to lift twenty pounds occasionally and ten pounds frequently, sit for at least six hours of an eight-hour workday, stand or walk for at least two hours of an eight-hour workday, use arm or leg controls to push or pull up to twenty pounds occasionally or ten pounds frequently, and climb stairs slowly. See ARat 22-23. This RFC draws support from the medical evidence in the record, particularly Dr. O'Brien's April 30, 2004 opinion. See AR at 237-38.

Next, the ALJ presented the VE with a hypothetical that contemplated an individual with the same RFC as the one that the ALJ had determined for Plaintiff.*fn4 See AR at 24, 345. The VE opined that this hypothetical person, and thus Plaintiff, could perform the duties of a shipping-and- receiving weigher, a taxi dispatcher, or a museum attendant and that these jobs existed in significant numbers in the national economy. See id. at 24, 346-47.

The ALJ considered, but did not rely on, two other hypotheticals on which the VE opined. During the hearing, the ALJ asked the VE whether someone with Plaintiff's RFC could still perform light work if his symptoms caused him to miss work more than four times per month. See AR at 348. The VE stated that that situation would result in an inability to work. See id. Second, Plaintiff's counsel asked the VE whether someone with Plaintiff's RFC and also Plaintiff's claimed side effects from medication could perform light work. See id. at 350-53. Again, the VE stated that no suitable work was available for such a person. See id. at 353.

The ALJ did not err when he chose not to rely on the VE's answers to the two alternative hypotheticals because both of those hypotheticals included limitations that Plaintiff did not have. See Aubeuf, 649 F.2d at 114-15. Instead, the ALJ properly relied on the VE's opinion regarding the hypothetical that the ALJ proposed that correlated with Plaintiff's RFC. As a result, the Court finds that the ALJ did not err when he determined that Plaintiff retained the ability to engage in substantial gainful employment.

IV. CONCLUSION

After carefully reviewing the entire record in this matter, the parties' submissions, and the applicable law, and for the above-stated reasons, the Court hereby

ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED; and the Court further

ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the Court further

ORDERS that the Commissioner's decision is AFFIRMED and Plaintiff's complaint is DISMISSED; and the Court further

ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and close this case.

IT IS SO ORDERED.

Syracuse, New York


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