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Philomina P. Lukose v. Michael J. Astrue

October 29, 2011

PHILOMINA P. LUKOSE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

1. Plaintiff Philomina Lukose challenges an Administrative Law Judge's ("ALJ") determination that she is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that she has been disabled since June 19, 2007, due to depression, anxiety, panic attacks with chest tightness, memory/concentration problems, and knee pain. Plaintiff contends that her impairments have rendered her unable to work. She therefore asserts that she is entitled to disability benefits under the Act.

2. On October 19, 2007, Plaintiff filed a Title II application for disability insurance benefits. Her application was initially denied on March 3, 2008, and upon reconsideration on August 25, 2008. Pursuant to Plaintiff's request, an administrative hearing was held before ALJ D. Kevin Dugan on February 10, 2009, at which Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on May 8, 2009, denied Plaintiff's application for benefits. On September 14, 2009, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action on November 6, 2009, challenging Defendant's final decision.*fn1

3. On April 21, 2010, the Government filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. On April 22, 2010, Plaintiff filed a Cross-Motion for Judgment on the Pleadings pursuant to Rule 12(c). The Government and Plaintiff filed responses on May 13, 2010. This Court took the motions under advisement without oral argument.

4. 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 and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. 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 that which amounts to "more than a mere scintilla" and 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).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of 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 will 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled under the Social Security Act. See 20 C.F.R. § § 404.1520, 416.920. 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, 2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. 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, 584 (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).

9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since the alleged onset of her disability (R. at 19);*fn2 (2) Plaintiff's major depressive disorder with anxiety and knee pain are "severe" impairments within the meaning of the Act (Id.); (3) Plaintiff's impairments do not meet the criteria necessary for finding a disabling impairment under the regulations (Id.); (4) Plaintiff has retained the residual functional capacity to perform the exertional demands of a wide range of medium work as defined in 20 C.F.R. 404.1567, with limited exceptions (Id. at 23);*fn3 and (5) although Plaintiff is unable to perform any past relevant work, the ALJ concluded that given Plaintiff's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that she can perform. (Id. at 26). Ultimately, the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any time through the date of his decision May 8, 2009. (Id.)

10. Plaintiff raises two challenges to the ALJ's decision. First, Plaintiff argues that the ALJ failed to fulfill his duty to develop the record. Second, Plaintiff argues that the ALJ's decision is unsupported by substantial evidence.

11. Plaintiff's first challenge is that the ALJ failed to develop the record by not obtaining clarification of the medical opinions of Doctors Levine, Vassal, Plasencia, Comstock, or from Spectrum Human Services for counseling and treatment records. (Plaintiff's Memorandum of Law in Support of the Commissioner's Motion for Judgment on the Pleadings ("Pl.'s Mem."), Docket No. 8, 12-14.) Doctor Levine first treated Plaintiff between April 21, 2006 and October 24, 2007 and assessed Plaintiff as suffering from depression/grief due to the death of her son, as well as anxiety. (R. at 20.) Between August 20, 2007 and December 28, 2007, Plaintiff received treatment from Dr. Robert Vassal, whose notes reflect that Plaintiff described symptoms relating to depression, anxiety, including panic attacks, insomnia, and decreased concentration. (Id.) Between October 22, 2007 and November 29, 2007 Plaintiff received treatment from Dr. Carlos Plasencia who concluded that Plaintiff was unable to work in her past position or in any other position at that time based in part on a Global Assessment of Functioning exam range of 51, denoting moderate difficulty in social, occupational, or school functioning. (Id.) The record only refers to Dr. Gordon Comstock through a note dated January 22, 2009 that stated that Plaintiff suffered from significant depression, with sleep disturbances, and increased anxiety, ...


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