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John Borer, Jr. O/B/O Wayne Adam Borer, Deceased v. Michael J. Astrue

March 15, 2012

JOHN BORER, JR. O/B/O WAYNE ADAM BORER, DECEASED, 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 John Borer, Jr., on behalf of Wayne Adam Borer, challenges an Administrative Law Judge's ("ALJ") determination that the deceased, Mr. Wayne Borer, was not disabled within the meaning of the Social Security Act ("the Act"). Decedent was allegedly disabled as of January 2, 2001, due to blindness. Plaintiff contends that this impairment rendered decedent unable to work, and therefore asserts that decedent was entitled to payment of Disability Insurance Benefits ("DIB") by virtue of disability or statutory blindness under Title II of the Act.

2. Decedent filed a Title II application for DIB payments on October 26, 2007. His application was initially denied on January 11, 2008, after which he timely filed a request for a hearing. Prior to such a hearing being held, decedent passed away from an unrelated illness. On October 20, 2009, decedent's father filed a Notice of Substitution of Party Upon Death of Claimant. Thereafter, decedent's father designated Plaintiff, decedent's brother, to prosecute this claim. An administrative hearing was then held before ALJ Robert T. Harvey at which Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on November 3, 2009, issued a decision denying Plaintiff's application for benefits. Plaintiff filed a request for review with the Appeals Council, which, on October 21, 2010, denied Plaintiff's request for review. Plaintiff filed the current civil action on November 29, 2010, challenging Defendant's final decision.*fn1

3. On June 8, 2011, the Commissioner and Plaintiff both filed motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing of the motions concluded on July 15, 2011, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is granted.

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 & 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 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).

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 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).

6. 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. §§ 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); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. Although 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 found that decedent last met the insured status requirements of the Act on September 30, 1993. (R. at 14.)*fn2 The ALJ further found that benefits based on blindness would require Plaintiff to establish that decedent was blind on or before December 31, 2006. (Id.) The ALJ then found that decedent was not legally blind and also that he had not been under a disability prior to his date last insured ("DLI"), September 30, 1993. (R. at 15.)

10. Plaintiff argues that the ALJ's decision must be reversed because he erred in determining that Plaintiff was not blind and substituted his opinion for that of the treating physicians' expert medical opinions. Plaintiff also argues that the ALJ erred in not considering the opinion of the New York State Department of Social Services Commission for the Blind and Visually Handicapped ("State Commission") that found decedent blind.*fn3

11. A claimant is considered statutorily blind under the regulations if he or she has "central visual acuity of 20/200 or less in the better eye with the use of correcting lens." 20 C.F.R. § 404.1581. Further, an eye that suffers from a limitation in the field of vision "so that the widest diameter of the visual field subtends an angle no greater than 20 degrees is considered to have a central visual acuity of 20/200 or less." Id. Lastly, a claimant's blindness must meet the regulations' durational requirement. 20 C.F.R. § 404.1509 (impairments not expected to result in death must have lasted or be expected to last for continuous period of at least 12 months).

12. After reviewing the ALJ's decision, this Court finds no error requiring remand. The ultimate determination of whether a plaintiff meets the statutory definition of disability is reserved to the Commissioner. See 20 C.F.R. § 404.1527(e)(1). However, "[i]n analyzing a treating physician's report, the ALJ cannot arbitrarily substitute his own judgment for competent medical opinion." Rosa, 168 F.3d at 79 (quotation marks omitted). Here the ALJ considered the opinions of both decedent's treating physicians, Doctors Michael Johnson and Saralyn Notaro Rietz. Dr. Johnson opined that decedent was blind and determined that decedent's visual acuity was variously 20/300 and 20/400, well within the range of statutory blindness. But as the ALJ observed, Dr. Johnson's notes did not make clear whether this was with or without correcting lens. Specifically, on November 9, 2005 a visual acuity of 20/400 was recorded, which was changed from "SC" (without correction) to "CC" (with correction) and was changed from either "OD" (right eye) to "OS" (left eye), or vice versa. (R. at 152.) On November 22, 2005, decedent's visual acuity was recorded as 20/300, but did not indicate whether this was with or without correcting lens. (Id.) Then, on December 22, 2005, a visual acuity rating without correction was recorded as 20/CF and 20/300. (R. at 153.)*fn4 The ALJ then inferred from the low visual acuity readings in all the entries that decedent's visual acuity ...


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