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Berrios v. Colvin

United States District Court, Second Circuit

August 29, 2013

CAROLYN W. COLVIN in place of Michael Astrue, Defendant.

CHRISTOPHER CADIN, ESQ., LEGAL SERVICES OF CENTRAL NEW YORK, Inc., Syracuse, New York, Attorneys for Plaintiff

SOCIAL SECURITY ADMINISTRATION, STEPHEN P. CONTE, ESQ., Office of Regional General Counsel New York, New York, Attorneys for Defendant.


Mae A. D'AGOSTINO, District Judge.


Plaintiff Migdoel Berrios brings this action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny his application for supplemental security income ("SSI").


Plaintiff is forty-one years old and was last employed in 2006. See Dkt. No. 8-5 at 136. Plaintiff grew up in Puerto Rico and is a native Spanish speaker. See Dkt. No. 1 at 18. At the hearing, through an interpreter, Plaintiff testified that he has difficulty reading, writing and expressing himself in English. See id. Plaintiff completed high school in Puerto Rico. See id. at 17. Thereafter, Plaintiff went to college for two years, where he pursued studies in English and liberal arts. See id.

On December 30, 2009, Plaintiff protectively filed an application for SSI alleging a disability beginning on April 4, 2000. See Dkt. No. 1 at 2, 13.[1] Plaintiff's claim was denied, and he requested a hearing by an Administrative Law Judge ("ALJ"). See Dkt. No. 1 at 2. On April 5, 2011, ALJ F. Patrick Flanagan held a hearing by video teleconference. See id. In his hearing, Plaintiff claimed that he was disabled due to depression, low back pain, asthma, an inability to stand for more than thirty minutes at a time, difficulties sleeping, depersonalization, a hernia, stomach problems, and anxiety. See Dkt. No. 8-2 at 41-43, 47-52. On August 26, 2011, the ALJ issued a decision denying Plaintiff's claim for benefits. See Dkt. No. 1 at 2. Plaintiff appealed, and on April 27, 2012, the Appeals Council denied Plaintiff's request for review. See Dkt. No. 1 at 3. The ALJ's decision is therefore the Commissioner's final decision. See Perez v. Chater, 77 F.3d 41, 44 (2d Cir. 1996).


The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). The plaintiff carries the initial burden of proving that he or she is disabled within the meaning of the Act. See 42 U.S.C. § 423(d)(5)(A); see also Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002).

The Commissioner follows a five-step process to evaluate disability claims, determining the following:

(1) whether the claimant is currently engaged in substantial gainful activity - if so, the claimant is not disabled, (2) whether the claimant has a severe impairment that limits the claimant's mental or physical ability to do basic work activities, (3) if the claimant has a severe impairment, whether the claimant has a "listed impairment" (an impairment listed in 20 C.F.R., Part 404, Subpart P, Appendix 1) - if so, there is an irrebuttable presumption of disability, (4) if the impairment is not "listed", whether the claimant has residual functional capacity to perform the claimant's past work, notwithstanding the claimant's severe impairment, and (5) if the claimant is unable to perform past work, whether there is other work the claimant would be able to perform.

Credle v. Apfel, 4 Fed.Appx. 20, 22 (2d Cir. 2001) (citing Shaw v. Carter, 221 F.3d 126, 132 (2d Cir. 2000) (summarizing five-step analysis under 20 C.F.R. §§ 404.1520, 416.920)); see also Sweet v. Astrue, 510 Fed.Appx. 26, 27-28 (2d Cir. 2013) (quoting Rivera v. Schweiker, 717 F.2d 719, 722 (2d Cir. 1983)). "The claimant bears the burden of proof at steps one through four; at step five, the SSA bears a limited burden, but need only show that there is work in the national economy that the claimant can do; [it] need not provide additional evidence of the claimant's residual functional capacity.'" Pellam v. Astrue, 508 Fed.Appx. 87, 89 (2d Cir. 2013) (quoting Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009) (per curiam)).

According to 42 U.S.C. § 405(g), the Commissioner's finding "as to any fact, if supported by substantial evidence, shall be conclusive." Substantial evidence "means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Schaal v. Apfel, 134 F.3d 496 at 501 (2d Cir. 1998) (citing Richardson v. Perales, 402 U.S. 389, 401); see also Rosa, 168 F.3d at 77 ("Substantial evidence" means "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion'") (quoting Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)). A court must set aside an ALJ's ruling "only where it is based upon legal error or is not supported by substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citation omitted).

In the present case, the ALJ first found that Plaintiff had "not engaged in substantial gainful activity since December 30, 2009, the application date." See Dkt. No. 1 at 15. At the second step, the ALJ concluded that Plaintiff's severe impairments consist of "major depressive disorder, asthma, and low back disorder." See id. The ALJ concluded that these disorders "cause significant limitations in the claimant's ability to perform basic work activities." See id. At the third step of the analysis, the ALJ determined that "[t]he claimant does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments" in the regulations. See id. at 20. At step four, the ALJ found that, during an eight-hour work day, Plaintiff "has the residual functional capacity (RFC) to lift and/or carry 20 pounds occasionally; lift and/or carry 10 pounds frequently; stand and/or walk for a total of six hours; and sit for a total of six hours; but he needs to avoid concentrated exposure to fumes, dusts, and other known pulmonary irritants." See id. at 21. The ALJ also found that "the claimant is able to follow and understand simple directions and instructions, maintain a regular schedule, learn new tasks, perform some complex tasks, make appropriate decisions, relate adequately with others, and has adequate stress-management skills." See id. Thereafter, the ALJ determined that Plaintiff has no past relevant work, his age is "defined as a younger individual, " he "is not able to communicate in English, which is considered the same as being an individual who is illiterate in English, " and that "transferability of job skills is not an issue, because the claimant does not have past relevant work." See id. at 25. The ALJ determined that "[c]onsidering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform." See id. The ALJ therefore concluded that Plaintiff was not under a disability as defined in the Act. See id. at 27.

In seeking federal judicial review of the Commissioner's decision, Plaintiff raises the following arguments: (1) the ALJ "improperly evaluated and weighed" medical evidence; (2) "the ALJ's severity determination is inaccurate and not based upon substantial evidence;" (3) "[t]he determined Residual Functional Capacity (RFC) is inaccurate and not based upon substantial evidence;" and (4) "[v]ocational evidence was required; reliance on the GRIDS was improper." See Dkt. No. 11 at 18-31.

A. Duty to Develop the Record

"An ALJ has an obligation to develop the administrative record, including, in certain instances, recontacting a source of a claimant's medical evidence, sua sponte, to obtain additional information." Lukose v. Astrue, No. 09-CV-962S, 2011 U.S. Dist. LEXIS 125497, *9 (W.D.N.Y. Oct. 31, 2011) (citing Schaal, 134 F.3d at 505). The ALJ will obtain additional evidence if he or she is unable to make a disability determination based on the current record. See 20 C.F.R. § 404.1527(c)(3) (2011).[2] The regulations provide that, "[i]f the evidence is consistent but we do not have sufficient evidence to decide whether you are disabled, or if after weighing the evidence we decide we cannot reach a conclusion about whether you are disabled, we will try to obtain additional evidence." 20 C.F.R. § 404.1527(c)(3) (2011). This duty exists even if Plaintiff is represented by counsel. See Perez, 77 F.3d at 47.

Plaintiff claims that the ALJ "recognized that no treating source gave an opinion as to Plaintiff's specific physical functioning, " and that "[t]he ALJ has an affirmative duty to fully and fairly develop the record." See Dkt. No. 11 at 27. Although the burden is on the ALJ to develop the record because of the non-adversarial nature of SSI cases, the Court has received no indication that Plaintiff has a treating physician. Plaintiff has never mentioned the name of, or that he even has, a treating physician in his memoranda; the existence of a treating physician was not asserted in Plaintiff's hearing. Further, no treating physician was mentioned in the records from Plaintiff's hospital visits over the years. The ALJ, therefore, assigned great weight to the consultative physician's opinion, which was thorough and based on an in-person examination of Plaintiff. The consultative physician's opinion is consistent with both Plaintiff's medical records and Plaintiff's treating psychiatrist's and therapist's evaluations of his physical abilities. As such, the Court finds that the lack of evidence regarding a treating physician does not necessitate remand.

B. The Evaluation and Weight of Medical Evidence

Plaintiff claims that the ALJ improperly evaluated and weighed the medical evidence in determining that he is not disabled. See Dkt. No. 11 at 18. Plaintiff asserts that the ALJ incorrectly gave the medical opinion of Dr. Argiro, Plaintiff's treating psychiatrist, authoritative weight. See id. at 19. Plaintiff asserts that Dr. Argiro's opinion is "not consistent with the record as a whole." See id. Plaintiff claims that the ALJ should have instead given more weight to Dr. Moore's consultative evaluation. See id. at 19-21. After two consultative examinations, Dr. Moore concluded that Plaintiff had weak adaptive behaviors and interpersonal relationships; she also concluded that Plaintiff suffered from mild mental retardation. See id. at 20. Plaintiff argues that Dr. Moore's "opinions are not widely inconsistent' with the preponderance of the evidence" and should be given authoritative weight. See id. Plaintiff further asserts that Dr. Argiro did not submit him to "medically acceptable clinical and laboratory diagnostic tests." See id. at 21. In addition, Plaintiff argues ...

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