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Major v. Astrue

United States District Court, Second Circuit

May 24, 2013

ANGELA MAJOR, Plaintiff,
v.
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, District Judge.

1. Plaintiff challenges an Administrative Law Judge's ("ALJ") decision, dated October 15, 2010, wherein the ALJ determined that Plaintiff was not disabled under section 1614(a)(3)(A) of the Social Security Act. Plaintiff protectively filed an application for supplemental security income in January 2009, alleging that she became disabled beginning September 4, 2008. She now contends that the ALJ's determination is not based upon substantial evidence, and reversal is warranted.

2. On October 5, 2010, the ALJ held a hearing at which Plaintiff and a vocational expert testified. After consideration of the evidence, including Plaintiff's medical records, the ALJ denied Plaintiff's application for supplemental security income. On February 13, 2012, the Appeals Council denied Plaintiff's request for review after consideration of additional evidence. Plaintiff filed the current civil action challenging Defendant's final decision in this Court on April 11, 2012.

3. Plaintiff filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on October 1, 2012. Defendant also moved for such judgment in its favor on the same date. This Court finds the matter fully briefed and oral argument unnecessary. Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible based on the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc. , 842 F.2d 639, 642 (2d Cir. 1988).

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 and 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), cert denied 459 U.S. 1212 (1983).

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

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 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 January 7, 2009, the date of her protective application (R. 42);[1] (2) Plaintiff has the following severe impairments: "diabetes, chronic low back pain, knee pain, calcaneal spur, hypercholesterolemia, cognitive disorder NOS, depressive disorder NOS and attention deficit/hyperactivity disorder and anxiety" (R. 42); (3) neither these impairments nor any combination of these impairments meets or medically equals a recognized disabling impairment under the regulations (R. 42-44); (4) Plaintiff retains the residual functional capacity ("RFC") to perform sedentary work with certain limitations, such as the option to sit or stand alternatively (R. 44-48); and (5) although Plaintiff cannot perform any past relevant work, she retains the ability to perform other jobs, such as surveillance system monitor or telemarketer. (R. 49-50.)

10. Plaintiff contends that remand is required because the ALJ failed in his affirmative duty to develop the record with respect to Plaintiff's cognitive disorder, which the ALJ found to be a severe impairment, and further failed to evaluate her mental impairments in accordance with Listing 12.02 of the Listing of Impairments, 20 C.F.R. § 404 subpt. P. app. 1. (Pl's Mem of Law at 13-14, Docket No. 7-1.) Initially, although the ALJ referenced only Listings 12.04 and 12.06, which pertain to affective and anxiety related disorders respectively, the "B" and "C" criteria for all three listings are identical. 20 C.F.R. § 404 subpt. P. app. 1. Thus, the ALJ did evaluate Plaintiff's cognitive impairment in relation to Listing 12.02. (R. 42-44.)

Nonetheless, there is merit to Plaintiff's argument, although inartfully framed, that the ALJ failed to appropriately develop the record with respect to Plaintiff's mental impairments. An ALJ has the affirmative duty to request RFC assessments from treating sources, even where the record contains an otherwise complete medical history or where, as here, a claimant is represented by counsel. Rosa v. Callahan , 168 F.3d 72, 79 (2d Cir. 1999); Johnson v. Astrue , 811 F.Supp.2d 618, 630 (E.D.N.Y. 2011); see 20 C.F.R. 404.1512(d) ("every reasonable effort to help you get medical reports from your own medical sources" will be made). Indeed, "it is not ...


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