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Tom E. Pearson v. Michael J. Astrue

February 17, 2012

TOM E. PEARSON, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANTS.



The opinion of the court was delivered by: Mae A. D'Agostino, U.S. District Judge:

MEMORANDUM-DECISION AND ORDER

INTRODUCTION

Plaintiff Tom E. Pearson, brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking a review of the Commissioner of Social Security's decision to deny his applications for disability insurance benefits ("DIB") and supplemental social security ("SSI").

BACKGROUND

On September 18, 2007, plaintiff protectively filed an application for DIB and SSI benefits. (Administrative Transcript at p.13, 88-95).*fn1 Plaintiff was 43 years old at the time of the applications with past work experience as a case manager for an insurance agency. In 1992, plaintiff attended Schenectady Community College and obtained an Associate's Degree. (T. 255). Plaintiff attended Syracuse University and obtained a Bachelor's Degree and a Master's Degree in Business Administration. (T. 255). Plaintiff claimed that he was disabled, beginning on December 1, 2004, due to depression, oppositional defiance disorder, attention deficit disorder, knee pain, diabetes and carpal tunnel syndrome. On March 14, 2008, plaintiff's applications were denied and plaintiff requested a hearing by an ALJ which was held on August 31, 2009. (T.13; 49-56). On October 8, 2009, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 13-23). The Appeals Council denied plaintiff's request for review on March 5, 2010 making the ALJ's decision the final determination of the Commissioner. (T. 1-5). This action followed.

DISCUSSION

The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).

A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

Here, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date, December 1, 2004. (T. 15). At step two, the ALJ concluded that plaintiff suffered from major depression, oppositional defiance disorder and attention deficit disorder, all of which qualified as "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 15). At the third step of the analysis, the ALJ determined that plaintiff did not have an impairment or combination of impairments that meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 16). The ALJ found that plaintiff had the residual functional capacity ("RFC") to, "perform a full range of work at all exertional levels but with the following non-exertional impairments: simple work in a low contact with the public setting". (T. 17-18). At step four, the ALJ concluded that plaintiff was unable to perform his past relevant work. (T. 21). At step five, relying on the medical-vocational guidelines ("the grids") set forth in the Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the national economy. (T. 22). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 23).

In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:

(1) the ALJ committed reversible error in failing to find that plaintiff's mental impairments met or medically equaled a listed impairment; (2) the ALJ erred when he failed to find that plaintiff's carpal tunnel syndrome was a severe impairment; (3) the Appeals Council improperly rejected "new evidence" relating to plaintiff's carpal tunnel syndrome; (4) the ALJ failed to consider plaintiff's impairments "in combination" at Step Three of the analysis; and (5) the Commissioner did not sustain his burden at the fifth step of the sequential evaluation process. (Dkt. No. 10).

I. Severity of Impairments at Step Two

"The Listing of Impairments describes, for each of the major body systems, impairments which are considered severe enough to prevent a person from doing any gainful activity." 20 C.F.R. § 416 .925(a). If a claimant's impairment or combination of impairments meets or equals a listed impairment, the evaluation process is concluded and the claimant is considered disabled without considering the claimant's age, education, or work experience. Campbell v. Astrue, 2009 WL 2152314, at *4 (N.D.N.Y. 2009) (citing 20 C .F.R. § 416.920(a)(4)(iii)). A "severe" impairment is one that significantly limits an individual's physical or mental ability to do basic work activities. Meadors v. Astrue, 370 F. App'x 179, 182 (2d Cir. 2010) (citing 20 C.F.R. §§ 404.1520( c ), 416.920( c )). The Regulations define "basic work activities" as the "abilities and aptitudes necessary to do most jobs," examples of which include,

(1) Physical functions such as walking, standing, lifting, pushing, pulling, reaching, carrying, or handling;

(2) Capacities for seeing, hearing, and speaking;

(3) Understanding, carrying out, and remembering simple instructions;

(4) Use of judgment;

(5) Responding appropriately to supervision, co-workers and usual work situations; and

(6) Dealing with changes in a routine work setting.

20 C.F.R. § 404.1521(b); see also Social Security Ruling 85--28, 1985 WL 56856, at *3--4, Titles II and XVI: Medical Impairments That Are Not Severe (S.S.A.1985).

Plaintiff has the burden at step two in the sequential evaluation process to demonstrate the severity of his impairment. See 20 C.F.R. § 404.1520( c ). The severity analysis at step two may do no more than screen out de minimis claims. Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir.1995). The "mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment" is not, itself, sufficient to deem a condition severe. McConnell v. Astrue, 2008 WL 833968, at *2 (N.D.N.Y.2008) (citing Coleman v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y.1995)).

"When evaluating the severity of mental impairments, the regulations require the ALJ to apply a 'special technique' at the second and third steps of the review, in addition to the customary sequential analysis." Lint v. Astrue, 2009 WL 2045679, at *4 (N.D.N.Y. 2009) (citing Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir.2008) (citing 20 C.F.R. § 404.1520a)). First, the ALJ must evaluate the claimant's symptoms, as well as other signs and laboratory findings, and determine whether the claimant has a "medically determinable mental impairment." 20 C.F.R. §§ 404.1520a(b)(1), 416.920a(b)(1); see also Dudelson v. Barnhart, 2005 WL 2249771, at *12 (S.D.N.Y. 2005). If a medically determinable impairment exists, the ALJ must "rate the degree of functional limitation resulting from the impairment [ ]." 20 C.F.R. §§ 404.1520a(b)(2), 416.920a(b)(2). This process requires the ALJ to examine all relevant clinical and laboratory findings, as well as the effects of the symptoms on the claimant, the impact of medication and its side effects, and other evidence relevant to the impairment and its treatment. 20 C.F.R. §§ 404.1520a(c)(1), 416.920a(c)(1). The ALJ must rate the degree of the claimant's functional limitation in four specific areas, referred to as "Paragraph B" criteria: activities of daily living; social functioning; concentration, persistence, or pace; and episodes of decompensation. 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). The ALJ rates the first three areas on a five-point scale of "none," "mild," "moderate," "marked," and "extreme," and the fourth area on a four-point scale of "none," "one or two," "three," and "four or more." 20 C.F.R. §§ 404.1520a(c)(4), 416.920a(c)(4). If the first three areas are rated as "none" or "mild," and the fourth as "none," the ALJ will conclude that the mental impairment is not severe "unless the evidence otherwise indicates that there is more than a minimal limitation in [the claimant's] ability to do basic work activities." 20 C.F.R. §§ 404.1520a(d)(1), 416.920a(d)(1).

A diagnosis of a mental impairment, such as depression, without more, does not suggest that a plaintiff's mental impairment severely impairs his performance of any major life activity. See Torres v. Astrue, 550 F.Supp.2d 404, 411 (W.D.N.Y. 2008). The medical evidence must show that the mental impairment precludes a plaintiff from performing basic mental work activities. See Snyder v. Astrue, 2009 WL 2157139, at *4 (W.D.N.Y. 2009). Moreover, evidence that medication provides relief from the severity of a mental condition can provide substantial evidence to support a finding that a plaintiff is not disabled. Pennay v. Astrue, 2008 WL 4069114, at *5 (N.D.N.Y. 2008).

A. Relevant Medical Evidence

In February 2007, plaintiff underwent an Initial Psychiatric Evaluation at Glens Falls Hospital Behavioral Health Outpatient Center ("BHOC").*fn2 (T. 361). Plaintiff described a history of substance and alcohol abuse and several attempts at rehabilitation. Plaintiff claimed he was sober and in recovery for two years. Plaintiff also discussed his legal problems including a recent arrest for burglary for which he claimed he was currently serving probation. Plaintiff complained of being depressed and admitted to a history of violence while using drugs with one prior suicide attempt. Plaintiff was diagnosed with adjustment disorder with depressed mood and poly substance abuse. (T. 362). Plaintiff was admitted to the BHOC, referred for individual therapy and prescribed Ambien. On March 7, 2007, Arshad William, M.D. prepared a Progress Note stating that plaintiff was "huffing solvents" and would like to go to "rehab". (T. 363). Plaintiff was given a referral for a drug rehabilitation program.

In April 2007, plaintiff was admitted as an outpatient at Conifer Park. Plaintiff was referred for problems involving "inhalants - air dusters". (T. 221). During his initial evaluation, plaintiff admitted to overdosing on drugs, experiencing suicidal thoughts, attempting suicide resulting in hospitalization and a history of being molested by family members. (T. 226). On intake, plaintiff was diagnosed ...


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