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Tonya L. Jenkins v. Commissioner of Social Security

January 10, 2011


The opinion of the court was delivered by: David G. Larimer United States District Judge


In this action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner"), plaintiff Tonya Jenkins ("plaintiff") appeals from the Commissioner's denial of disability insurance benefits.

On August 18, 2005, plaintiff, then 33 years old, filed an application for disability insurance benefits and supplemental security income benefits under Title II of the Social Security Act. Plaintiff alleged an inability to work since April 1, 2002, due to back, neck, shoulder and leg impairments, carpal tunnel syndrome, and fibromyalgia. (T. 104-106, 111, 140). Her application was initially denied. (T. 86-93, 328-337). Plaintiff requested a hearing, which was held on July 28, 2008 before Administrative Law Judge ("ALJ") John P. Costello. (T. 338-374). The ALJ issued a decision on September 5, 2008, concluding that plaintiff was not disabled under the Social Security Act. (T. 19-31). That decision became the final decision of the Commissioner when the Appeals Council denied review on May 12, 2009 (T. 5-7). Plaintiff now appeals.

The plaintiff has moved for a judgment vacating the Commissioner's decision and for an order remanding for calculations and payment of benefits (Dkt. #6). The Commissioner has cross moved (Dkt. #9), for summary judgment dismissing the complaint. For the reasons discussed below, the Commissioner's cross motion for summary judgment is denied, plaintiff's motion is granted in part, and the matter is remanded for further proceedings.


Determination of whether a claimant is disabled within the meaning of the Social Security Act requires an ALJ to follow a five-step sequential evaluation. See Bowen v. City of New York, 476 U.S. 467, 470-71 (1986). At step one, the ALJ must determine whether the claimant is engaged in substantial gainful work activity. See 20 CFR §404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two, and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, e.g., that imposes significant restrictions on the claimant's ability to perform basic work activities. 20 CFR §404.1520(c). If not, the analysis concludes with a finding of "not disabled." If so, the ALJ continues to step three.

At step three, the ALJ examines whether the claimant's impairment meets or equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4. If the impairment meets or medically equals the criteria of a listing and meets the durational requirement (20 CFR §404.1509), the claimant is disabled. If not, analysis proceeds to step four, and the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or metal work activities on a sustained basis, notwithstanding limitations for the collective impairments. See 20 CFR §404.1520(e), (f). Then, the ALJ determines whether the claimant's RFC permits her to perform the requirements of her past relevant work. If so, the claimant is not disabled. If not, analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled, by presenting evidence demonstrating that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.1999) (quoting Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir.1986)). See 20 CFR §404.1560(c).

The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. See 42 U.S.C. § 405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)). "The Court carefully 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.'" Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997). Still, "it is not the function of a reviewing court to decide de novo whether a claimant was disabled." Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute our judgment for that of the Commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

ALJ Costello analyzed plaintiff's claim of disability in a lengthy, ten-page decision (seven pages of which comprises his analysis of the evidence). The ALJ set forth the medical evidence in detail, with particular focus on plaintiff's lumbar and cervical spine disorder and shoulder disorder, which he determined constituted a severe impairment not meeting or equaling a listed impairment. In analyzing the pertinent evidence of plaintiff's exertional limitations, the ALJ found that plaintiff could perform light work with certain additional limitations. Plaintiff makes no objection to the ALJ's determination of her RFC as it relates to these exertional limitations, and I find that that determination is supported by substantial evidence in the record.

With respect to non-exertional limitations, the ALJ referred to the plaintiff's history of mild depression, but emphasized that she had never sought or received treatment for depression, and found no evidence that plaintiff's alleged depression interfered with her ability to perform a wide range of personal, family, and household maintenance activities. To the contrary, the claimant testified that she fully and independently managed all aspects of personal care and household maintenance for herself and her three daughters, and it appears that plaintiff's counsel had not even raised the issue of non-exertional limitations at the hearing.

The ALJ also cited the report of consultative examining psychiatrist John Thomassen, who identified few limitations on plaintiff's residual functional capacity caused by her depression, and found plaintiff's mood, attention, concentration, memory, cognitive functioning, insight and judgment to be within the normal range. (T. 217-218). None of plaintiff's treating physicians submitted a report concerning plaintiff's mental RFC, or otherwise indicated the existence of any disabling non-exertional limitations.

Plaintiff nonetheless argues that the ALJ's decision failed to apply the correct legal standards. Plaintiff contends that because her medical records contained evidence of untreated depression and diagnoses of depressive, anxiety and mood disorders which imposed mild to moderate limitations on plaintiff's social and cognitive functioning, the ALJ should have developed the record and applied the "special technique" prescribed by the applicable regulations for assessing the severity of mental impairments.

Plaintiff contends that had the special technique been properly applied, the ALJ might well have concluded that plaintiff's depression did constitute or contribute to a severe impairment, and his ultimate conclusion as to her claim of disability might have been altered. The importance of complying with the regulations relating to the "special technique" has been underscored by the relatively recent Second Circuit decision in Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008; Sotomayor, J.).

The special technique, which applies to the evaluation of "physical and mental impairments" in adults at Steps 2 and 3 of the ALJ's analysis, requires an ALJ to assess four categories of functionality: "activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decomposition." 20 C.F.R. ยงยง404.1520a(c)(3), 416.920a(c)(3). Impairment in the first three categories must be ranked as "none, mild, moderate, marked" or "extreme," and the number of episodes of decomposition must be ranked as "none, one, two" or "three or more." The ALJ must document his analysis of the process in order to "reflect application of the technique, and . . . must include a specific finding as to the degree of limitation in each of the functional areas." Kohler v. Astrue, supra, 546 F.3d at 266 (internal quotations omitted). A finding of "mild" or less in ...

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