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Catherine L. Kaminski v. Michael J. Astrue

February 21, 2012

CATHERINE L. KAMINSKI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. INTRODUCTION

In April of 2006, Plaintiff Catherine L. Kaminski filed an application for supplemental security income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she is unable to work due to physical and mental impairments. The Commissioner of Social Security denied Plaintiff's applications.

Plaintiff, by and through her attorneys, Conboy McKay Bachman & Kendall, LLP, Lawrence D. Hasseler, Esq., of counsel, commenced this action for judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

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. 19).

II. BACKGROUND

The relevant procedural history may be summarized as follows: Plaintiff applied for SSI benefits on April 17, 2006. (T at 66, 105).*fn1 The application was denied initially and Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). A hearing was held before ALJ Elizabeth Koennecke on June 23, 2008, in Watertown, New York. (T at 517). Plaintiff appeared with her attorney and testified. (T at 396-408). Plaintiff's mother, Margaret Kaminski, also appeared and testified at the hearing. (T at 409-421).

On September 16, 2008, ALJ Koennecke issued a written decision finding that Plaintiff was not disabled and denying her application for benefits. (T at 25-38). The ALJ's decision became the Commissioner's final decision on May 20, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-8).

Plaintiff, through counsel, timely commenced this action on June 5, 2009. (Docket No. 1). The Commissioner interposed an Answer on September 21, 2009. (Docket No. 9). Plaintiff filed a supporting Brief on November 3, 2009. (Docket No. 11). The Commissioner filed a Brief in opposition on February 4, 2010. (Docket No. 21).

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.*fn2

For the reasons that follow, it is respectfully recommended that the Commissioner's motion be granted, Plaintiff's motion be denied, and this case be dismissed.

III. DISCUSSION

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.*fn3

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 found that Plaintiff had not engaged in substantial gainful activity since March 30, 2006, the application date. The ALJ concluded that Plaintiff had the following impairment, which the ALJ considered "severe" under the Act: mild mental retardation. (T at 30). However, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 32).

The ALJ concluded that Plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels, but was limited by her non-exertional impairment to unskilled work. (T at 34).

Applying the Medical-Vocational Guidelines (commonly referred to as the "Grids"), the ALJ concluded that a finding of "not disabled" was required based upon Plaintiff's residual functional capacity. (T at 38). As noted above, the ALJ's decision became the Commissioner's final decision on May 20, 2009, when the Appeals Council denied Plaintiff's request for review. (T at 5-8).

2. Plaintiff's Claims

Plaintiff contends that the Commissioner's decision should be reversed. She offers six (6) principal arguments in support of this position. First, Plaintiff asserts that she has an impairment or combination of impairments that meets or equals one of the impairments set forth in the Listings. Second, Plaintiff argues that the ALJ did not properly consider the medical opinion evidence of record. Third, Plaintiff contends that the ALJ erred when assessing her mental disorder. Fourth, Plaintiff alleges that the ALJ did not properly assess her credibility. Fifth, she asserts that the ALJ incorrectly relied upon the Medical-Vocational Rules (the "Grids") and should have consulted a vocational expert. Sixth, Plaintiff argues that the Appeals Council should have considered additional evidence submitted after the ALJ's decision was rendered. This Court will address each argument in turn.

a. Listings § 12.05

As discussed above, if a claimant suffers from an impairment or combination of impairments that meets or medically equals one of the impairments contained in the Listings, the claimant will be considered disabled.

Impairments listed in Appendix 1 of the Regulations are "acknowledged by the [Commissioner] to be of sufficient severity to preclude" substantial gainful activity. Accordingly, a claimant who meets or equals a Listing is "conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.1995); see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii) ("If you have an impairment(s) that meets or equals one of our listings in appendix 1 of this subpart and meets the duration requirement, we will find that you are disabled.").

The claimant bears the burden of establishing that his or her impairments match a Listing or are equal in severity to a Listing. See Naegele v. Barnhart, 433 F. Supp.2d 319, 324 (W.D.N.Y. 2006) ("It must be remembered that plaintiff has the burden of proof at step 3 that she meets the Listing requirements.").

To show that an impairment matches a Listing, the claimant must show that his or her impairments meet all of the specified criteria. Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20 C.F.R. § 416.925(d). If a claimant's impairment "manifests only some of those criteria, no matter how severely," the impairment does not qualify.Sullivan, 493 U.S. at 530. To satisfy this burden the claimant must offer medical findings equal in severity to all requirements, which findings must be supported by medically acceptable clinical and laboratory diagnostic techniques. 20 C.F.R. § 416.926(b). Abnormal physical findings "must be shown to persist on repeated examinations despite therapy." 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.00(B). Further, the medical reports must indicate physical limitations based upon actual observations and/or clinical tests, rather than the claimant's subjective complaints. Id.

In the present case, Plaintiff contends that her mental impairments meet or medically equal the impairment set forth in § 12.05 (c) of the Listings. Listing § 12.05(C) concerns sub-average intellectual functioning caused by mental retardation. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C). An adult will be considered disabled under the Social Security Act due to mental retardation if certain criteria set forth in the Listing are met. Meashaw v. Chater, No. 94-CV-1154, 1997 WL 16345, at *3 (N.D.N.Y. Jan. 7,1997).

Specifically, to satisfy the requirements of Listing § 12.05(C), the claimant must show: (1) a valid verbal, performance, or full scale IQ of 60 through 70; (2) an onset of the impairment before age 22; and (3) a physical or other mental impairment imposing an additional and significant work-related limitation of function. See id., at *3; see also Alvarado v. Barnhart, 432 F. Supp.2d 312, 315 (W.D.N.Y.2006); 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.05(C).

In this case, the ALJ concluded that the requirements of ยง 12.05 (C) were not met because"the claimant does not have a valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional ...


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