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Luis Angel Velez v. Michael J. Astrue

January 26, 2013

LUIS ANGEL VELEZ, 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, Luis Angel Velez, challenges an Administrative Law Judge's ("ALJ") determination that he is not disabled within the meaning of the Social Security Act ("the Act"). Velez alleged that he has been disabled since July 10, 2008 due to cervical pain, low back pain, thoracic pain, left arm pain, berderline intellectual functioning, a generalized pain disorder, hypertension, knee pain, and obesity, and that these impairments render him unable to work. He therefore asserts that he is entitled to disability insurance benefits and supplemental security income (collectively "benefits") under the Act.

2. Velez filed an application for benefits under Titles II and XVI of the Act on March 10, 2009, alleging an inability to work since July 10, 2008, when he was injured in an automobile accident. The Commissioner of Social Security ("Commissioner") denied Velez's initial application and, as a result, he requested an administrative hearing. A hearing was held on March 30, 2011, before Administrative Law Judge ("ALJ") Scott Staller, sitting in Maryland. Velez appeared via video teleconference from New York, along with counsel, and testified. The ALJ considered the case de novo, and on April 29, 2011, he issued a decision denying Velez's application for benefits. Velez filed a request for review with the Appeals Council, but the Council denied his request on September 23, 2011. Velez filed the current civil action on October 20, 2011, challenging Defendant's final decision.*fn1

3. On April 16, 2012, the Commissioner and Velez each filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Briefing on the motions concluded on June 4, 2012, at which time this Court took the motions under advisement without oral argument. For the reasons set forth below, the Commissioner's motion is denied, and Velez's motion is granted in part and denied in part.

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"; 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 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) Velez has not engaged in substantial gainful activity since July 10, 2008 (R. at 21);*fn2 (2) his cervical pain, low back pain, thoracic pain, left arm pain, borderline intellectual functioning, generalized pain disorder, hypertension, knee pain, and obesity are "severe" impairments within the meaning of the Act (R. at 21); (3) his impairments do not meet or medically equal any of the impairments listed in 20 CFR Part 404, Subpart P, Appendix 1 (R. at 21); (4) he retains the residual functional capacity to perform light work with certain postural limitations*fn3 (R. at 23-24); (5) he is unable to perform any past relevant work (R. at 26); and (6) at age 32, he is a "younger individual" with a limited education who retains the residual functional capacity to perform jobs that exist in significant numbers in the national economy (R. at 27). Ultimately, the ALJ concluded that Velez was not under a disability as defined by the Act from July 10, 2008 through the date of his decision. (R. at 26-27.)

10. Velez contends that, in light of his low IQ scores, the ALJ erred when he failed to find Velez disabled due to "mental retardation." "Mental retardation" is listed as a per se disability under 20 C.F.R. Pt. 404, Subpt. P, App'x 1 Part A, § 12.00. Establishing the applicability of this listing is a two-part process. Per SSA regulations, a claimant must first demonstrate: significantly subaverage general intellectual functioning with deficits in adaptive functioning initially manifested during the developmental period; i.e., the evidence demonstrates or supports onset of the impairment before age 22.

Id. Listing 12.05; see MacMillan v. Astrue, 2009 U.S. Dist. LEXIS 125597, at *17 (N.D.N.Y. Nov. 17, 2009) (courts have found evidence that a claimant attended special education classes, failed to complete high school, or had difficulties in reading, writing, or math sufficient to infer deficits in adaptive functioning prior to age 22) (citations omitted). Once this diagnostic criteria is met, a claimant must establish that his limitations are sufficiently severe by meeting one of four sets of criteria listed in subsections A through D of 12.05. Here, the ALJ examined each of these subsections and concluded that none apply. Velez challenges the ALJ's finding with respect to 12.05C, and first argues that his impairments meet, or alternatively, medically equal, the 12.05C requirements of: [a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function."

The record shows that Velez was enrolled in special education classes at a public school and completed 9th grade before dropping out. (R. 46, 227.) He has not obtained a GED. (R. 64.) His school's Committee on Special Education recorded the results of a WISC*fn4 IQ test administered to him at age six as 72. (R. 255.) Another WISC IQ test, administered at age twelve, shows an IQ score of 78. (Tr. 254.) After Velez applied for benefits, he was examined by a licensed psychologist, Dr. Baskin. She administered a standardized intelligence test for adults, the VAIS-IV, which resulted in the following scores: full scale IQ 63, verbal comprehension 72, perceptual reasoning 69, working memory 71, and processing speed 62. (R. 257-58.) Dr. Baskin opined that the testing results "are considered to be a valid and reliable estimate of current functioning," but due to certain of Velez's behaviors, "may be a lower estimate of his true cognitive abilities." (R. 257.) She noted that Velez's style of responding was inconsistent, he worked slowly, did not appear to make a concerted effort to do his best, and appeared someone lethargic, which "may have had a negative impact on his Full Scale IQ." (R. 257-58.) Dr. Baskin then stated ...

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