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Kathy L. Dutcher v. Michael J. Astrue

March 7, 2011




In February of 2007, Plaintiff Kathy L. Dutcher applied for disability insurance benefits ("DIB") under the Social Security Act. Plaintiff alleges that she has been unable to work since June of 2005 due to physical impairments. The Commissioner of Social Security denied Plaintiff's application. Plaintiff, through her attorney of record, Jonathan P. Foster, 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 December 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. 14).


The relevant procedural history may be summarized as follows: Plaintiff applied for DIB on February 23, 2007, alleging disability beginning June 1, 2005. (T at 81-83).*fn1 The application was denied initially and Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was scheduled for April 15, 2009, before ALJ Barry E. Ryan in Corning, New York. (T at 35). Plaintiff appeared on that date with her attorney, but no testimony was taken. (T at 36). The hearing was adjourned at the request of Plaintiff's counsel for the specific purpose of allowing counsel to obtain additional medical records relevant to the time period at issue. (T at 38-39). A further hearing was held on July 8, 2009, before ALJ Thomas P. Tielens. Plaintiff appeared with counsel and testified. (T at 18-34).

On July 24, 2009, ALJ Tielens issued a decision denying Plaintiff's application. (T at 43-49). The ALJ's decision became the Commissioner's final decision on September 24, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 1-3).

Plaintiff, through counsel, commenced this action on October 19, 2009, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). The Commissioner interposed an Answer on February 8, 2010. (Docket No. 7). Plaintiff filed a supporting Brief on May 24, 2010. (Docket No. 12). The Commissioner filed a Brief in opposition on July 8, 2010. (Docket No. 13).

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 granted, Plaintiff's motion be denied, and that this case be dismissed.


A. Legal Standard

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).

B. Analysis

1. Commissioner's Decision

The ALJ concluded that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2005. He found that Plaintiff did not engage in substantial gainful activity between June 1, 2005, the alleged onset date, through June 30, 2005, the date last insured. The ALJ determined that Plaintiff had the following medically determinable impairments considered "severe" under the Social Security Act: diabetes mellitus, obesity, knee pain, and degenerative disc disease of the lumbar spine. (T at 45).

However, the ALJ found that, between the alleged onset date and the date last insured, Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 45-46). This significant finding had the practical effect of foreclosing receipt of any benefits, as she would have only been eligible beyond her date last insured, had she been found disabled between the onset date and the date last insured.

The ALJ concluded that, during the relevant time period, Plaintiff retained the residual functional capacity ("RFC") to perform the full range of sedentary work, as defined in 20 CFR § 404.1567 (a). (T at 46).

The ALJ found that, during the time period at issue, Plaintiff was unable to perform her past relevant work as a cashier or animal care worker because those jobs required lifting/carrying or standing/walking beyond a sedentary level of exertion. (T at 48).

The ALJ considered Plaintiff's age (46 years old on the date last insured), education,*fn3 work experience, and RFC (full range of sedentary work), and concluded that, as of the date last insured there were jobs that existed in significant numbers in the national economy that Plaintiff could perform. (T at 48). Accordingly, the ALJ found that Plaintiff had not been under a disability, as defined under the Act, from the alleged onset date through the date last insured. (T at 48). As noted above, the ALJ's decision became the Commissioner's final decision on September 24, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 1-3).

As discussed in greater detail below, Plaintiff filed an application for benefits prior to filing the application under review here. That application was denied by the Commissioner via a decision issued on May 30, 2005. (T at 20). No appeal was taken from that decision and, as such, the parties concede that it is entitled to res judicata effect. Thus, the question presented here is whether Plaintiff was disabled during the approximately one-month period between the date of the decision denying Plaintiff's prior application and the date last insured. (T at 20).

2. Plaintiff's Claims

Plaintiff contends that the Commissioner's decision should be reversed. She offers three (3) principal arguments in support of this position. First, Plaintiff contends that the ALJ did not give proper consideration to the opinion of her treating physician. Second, Plaintiff argues that the ALJ did not adequately develop the record. Third, Plaintiff asserts that the ...

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