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Anthony Rokitka v. Michael J. Astrue

June 23, 2012

ANTHONY ROKITKA, 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 Anthony Rokitka challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that he has been disabled due to back, shoulder, and wrist injuries, and colon problems since January 22, 2007. Plaintiff contends that his impairments render him unable to work. He therefore asserts that he is entitled to disability insurance benefits ("DIB") and Supplemental Security Income ("SSI") under the Act.

2. Plaintiff filed an application for DIB under Title II of the Act on June 10, 2009, alleging disability since January 22, 2007. On the same day, Plaintiff also filed an application for SSI under Title XVI. The Commissioner of Social Security ("Commissioner") denied Plaintiff's initial application, and Plaintiff requested a hearing. An administrative hearing was then held on February 1, 2011 by video conference before ALJ Jeffrey M. Jordan at which Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on February 15, 2011, issued a decision denying Plaintiff's application for benefits. Plaintiff filed a request for review with the Appeals Council, which, on June 24, 2011, denied Plaintiff's request for review. Plaintiff filed the current civil action on July 19, 2011, challenging Defendant's final decision.*fn1

3. On February 16, 2012, the Commissioner filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing on the motion concluded May 7, 2012, at which time this Court took it 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 made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since January 22, 2007 (R. at 14);*fn2 (2) Plaintiff's disorders of the back, shoulders, and wrist, and chronic pain syndrome versus gout constituted "severe" impairment within the meaning of the Act (R. at 14); (3) Plaintiff does not have an impairment or combination of impairments that meets or medically equals the criteria necessary for finding a disabling impairment under the regulations (R. at 15); (4) Plaintiff retained the residual functional capacity ("RFC") to perform less than a full range of sedentary work as defined in 20 C.F.R. 404.1567(a) and 416.967(a) (R. at 15);*fn3 and (5) considering Plaintiff's age, education, work experience, and RFC, there are jobs in significant numbers in the national economy that Plaintiff could perform (R. at 23). Ultimately, the ALJ concluded that Plaintiff was not under a disability as defined by the Act from January 22, 2007, through February 15, 2011, the date of the ALJ's decision. (R. at 25.)

10. Plaintiff advances two primary challenges to the ALJ's decision. Nestled within those arguments are a series of additional challenges, typically presented in the form of a single sentence. The first challenge comprises Plaintiff's assertion that the ALJ "succumb[ed] to the temptation to play doctor." (Pl.'s Mem. 2, Docket No. 13.) As part of that challenge, Plaintiff also variously alleges that the ALJ provided the Vocational Expert ("VE") with an incomplete hypothetical, disregarded Plaintiff's subjective testimony, and committed an arithmetical error calculating how long Plaintiff could remain standing. The second challenge principally argues that the ALJ did not conduct a proper credibility determination of Plaintiff's testimony.

11. This Court first considers those arguments that, while included under Plaintiff's primary challenges, actually raise other grounds on which remand might be appropriate. For example, Plaintiff asserts that the ALJ failed to impose any limitations on him as a result of injuries to his left arm and shoulder. But a review of the ALJ's lengthy RFC assessment shows that a majority of the limitations did not distinguish between extremities, and so applied equally to both. Thus, Plaintiff needed to avoid above-shoulder lifting, carrying, pushing, pulling, and reaching with either arm.

Plaintiff points to a workers' compensation award, finding 45% permanent loss of use of his left arm. (R. at 301.) But workers' compensation boards apply different standards than those governing disability determinations under the Act, and are accordingly not binding on an ALJ. See Rosado v. Shalala, 868 F. Supp. 471, 473 (E.D.N.Y. 1994) (citing Coria v. Heckler, 750, F.2d 245, 247 (3d Cir. 1984)); see also Gray v. Chater, 903 F. Supp. 293, 301 n. 8 (N.D.N.Y. 1995). Further, even substantively considered the opinion adds little of value to the discussion. The opinion makes no mention of the ability to engage in "constant reaching and constant fine and gross manipulation" (the additional limitations imposed by the ALJ on Plaintiff's right upper extremity) (R. at 15). Nor does a 45% loss of use finding make clear how the ALJ's identified limitations are erroneous. The workers' compensation award does not specify what additional limitations should be imposed, or whether those limitations would comport with those found by the ALJ.*fn4 Given that, as already observed, ...


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