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Elanie Cichocki v. Michael J. Astrue

July 28, 2012

ELANIE CICHOCKI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

DECISION AND ORDER

1. Plaintiff, Melanie Cichocki, 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 October 20, 2008 due to a seizure disorder, bipolar disorder, and arthritis in her back. Plaintiff contends that her impairments have rendered her unable to work. She therefore asserts that she is entitled to payment of disability benefits under the Act.

2. Plaintiff applied for disability insurance benefits on April 7, 2009. The Commissioner of Social Security ("Commissioner") initially denied her application. Pursuant to Plaintiff's request, ALJ W illiam M. W eir held an administrative hearing on January 6, 2011, at which time Plaintiff appeared with counsel and testified. The ALJ considered the case de novo, and on May 23, 2011, issued a decision denying Plaintiff's application for benefits. On August 11, 2011, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action on September 8, 2011, challenging Defendant's final decision.*fn1

3. On February 6, 2012, the Commissioner filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Docket No. 9.);

Plaintiff followed suit the next month. (Docket No. 13.) The Commissioner filed a response to Plaintiff's motion on March 20, 2012. (Docket No. 14.) For the following reasons, Defendant's motion is granted and Plaintiff's motion is denied.

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); W agner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990); Molina v. Barnhart, No. 04 Civ. 3201(GEL), 2005 W L 2035959, at *5 (S.D.N.Y. Aug. 17, 2005) (quoting Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998); see also 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). W here 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." W illiams ex rel. W illiams 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 & 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) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. W hile 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 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. § 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 16);*fn2 (2) Plaintiff has the following "severe" impairments, within the meaning of the Act: back pain with objective evidence of mild degenerative disc disease of the lumbar spine; mild facet arthropathy; and a history of seizure activity (R. at 16); (3) Plaintiff's impairments do not meet or equal the criteria necessary for finding a disabling impairment under the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (R. at 18); (4) Plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b) except that Plaintiff can occasionally be exposed to temperature extremes, and can never work at unprotected heights or around mechanical parts, or operate a motor vehicle in a work environment (R. at 19); and (5) Plaintiff retained the ability to perform her past relevant work as a supermarket cashier and as a bakery clerk. (R. at 21). Ultimately, the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any time from the alleged onset date through May 23, 2011, the date of his decision. (R. at 22.)

10. Plaintiff advances four challenges to the ALJ's decision. First, Plaintiff asserts that the ALJ erred at step two of the five-step analysis when he found Plaintiff's bipolar disorder to be non-severe; Plaintiff contends that the ALJ improperly assessed some of her treating physician's opinions pursuant to Social Security Ruling ("SSR") 96-2p, and that his ultimate conclusion is not supported by substantial evidence. Second, Plaintiff argues that the ALJ improperly discredited Plaintiff's statements concerning the intensity, persistence, and limiting effects of her mental symptoms. Third, Plaintiff contends that the ALJ's RFC determination is not supported by substantial evidence, in that he did not find any mental limitations. Plaintiff further asserts that the ALJ's failure to provide a function-by-function assessment warrants remand. Fourth, Plaintiff argues the ALJ erred in finding her capable of past work because he did not provide a specific and substantial inquiry into past work demands.

11. Plaintiff's first challenge is that the ALJ erred at step two of the analysis when he found Plaintiff's bipolar disorder was non-severe.*fn3 Plaintiff asserts several related arguments to this end, and, for the reasons set forth below, this Court rejects each of them.

Initially, Plaintiff argues that the ALJ's conclusion is not supported by substantial evidence. In support of her argument, Plaintiff relies heavily on treating physician Dr. Dham Gupta's opinions from two assessments of Plaintiff's ability to do work-related mental activities.*fn4 (See R. at 525-29, 602-04.) Plaintiff also cites the state agency non-examining review physician's "Mental Residual Functional Capacity Assessment," which found moderate limitations in seven of 20 areas of mental capacity, specifically in her abilities to: understand and remember detailed instructions; carry out detailed instructions; maintain attention and concentration for extended periods; perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances; complete a normal workday and workweek without interruptions from psychologically based symptoms and to perform at a consistent pace without an unreasonable number and length of rest periods; travel in unfamiliar places or use public transportation; and set realistic goals or make plans independently of others. (See R. at 470-71.) Additionally, Dr. Bela Ajtai, a neurologist, noted that Plaintiff's psychiatric problems were "the major source of her disability." (R. at 433.)

But this evidence does not necessarily help Plaintiff because, 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]." See Rosado, 805 F. Supp. at 153. If there was also substantial evidence that her bipolar disorder was non-severe, the ALJ's finding will be sustained. See, e.g., id. W hether the ALJ's conclusion was supported by substantial evidence is necessarily entwined with Plaintiff's related argument that the ALJ violated the treating physician rule at step two. As discussed at length below, this Court finds that the ALJ properly relied on substantial evidence when he found Plaintiff's bipolar disorder to be non-severe.*fn5

12. Plaintiff asserts that the ALJ violated the treating physician rule*fn6 at step two of the analysis. Plaintiff contends that the treating physician rule required the ALJ to give "controlling weight" to Dr. Gupta's assessments of Plaintiff's ability to complete mental work, and to his opinion that Plaintiff is "psychiatrically disabled."*fn7 Because the ALJ failed to do so, Plaintiff argues that he improperly cherry picked evidence to support a denial of benefits.

Under the "treating physician rule," an ALJ must give "controlling weight" to the medical opinion of a physician engaged in the primary treatment of a claimant if that opinion "is not inconsistent with the other substantial evidence in [the] record." 20 C.F.R. ยง 416.927, 416.912, 416.913; see Green-Younger, 335 F.3d at 106; Social Security Ruling ("SSR") ...


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