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Webb v. Colvin

United States District Court, Second Circuit

September 23, 2013

MARK A. WEBB, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.[1]

DECISION AND ORDER

WILLIAM M. SKRETNY, District Court.

1. Plaintiff Mark A. Webb challenges an Administrative Law Judge's ("ALJ") determination that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act. Plaintiff now contends that the ALJ's determination is not based upon substantial evidence, and therefore reversal is warranted.

2. Plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits on August 27, 2008. Plaintiff also protectively filed a Title XVI application for supplemental security income on August 27, 2008. Both claims were initially denied on March 5, 2009. Following Plaintiff's written request, a hearing was held on October 14, 2010 at which both Plaintiff and a vocational expert testified. The ALJ considered the case de novo, and on October 28, 2010, issued a decision denying Plaintiff's application for benefits. On June 15, 2012, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the instant civil action on August 9, 2012, challenging the Commissioner's final decision.

3. On March 21 and 24, 2013, the Commissioner and Plaintiff filed Cross-Motions for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Commissioner filed a response to Plaintiff's motion on April 22, 2013. Although the time allotted in this Court's scheduling order has expired, no further submission was filed by Plaintiff, therefore this Court will consider the matter fully briefed.

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 only be reversed 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) (internal quotation marks and citation omitted). 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 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 & 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, 140-42, 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. While 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(g); Heckler v. Campbell , 461 U.S. 458, 460-61, 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 his disability (R. at 20);[2] (2) Plaintiff has severe impairments, specifically "cocaine, opiate, cannabis and alcohol dependence, bipolar disorder, obesity, and status post left leg gunshot wound, " and "may have" the following non-severe impairments: migraines, hypertension, left foot bunion, and Hepatitis B and C (R. at 20); (3) neither these impairments or any combination thereof meet or medically equal a recognized disabling impairment under the regulations (R. at 21); (4) Plaintiff has the residual functional capacity to perform light work with certain limitations, including non-exertional limitations regarding his ability to remember or carry out complex tasks (R. at 22); and (5) although Plaintiff is unable to perform any past relevant work, he has the capacity to perform simple work such as office helper or mail clerk (R. at 28).

10. Plainitff challenges the denial of benefits on the ground that the ALJ failed to include Plaintiff's "severe cognitive disorder" as one of his severe impairments, and further failed to "acknowledge or evaluate [Plaintiff's] Learning Disorder/Cognitive limitations" in the residual functional capacity (RFC) determination. (Pl's Mem of Law at 10-12.) Plaintiff argues that, because the record reflects his history of special education and low IQ, he satisfies the regulation listing for "mental retardation" found in 20 C.F.R., Subpart P, App'x 1, 12.05(C). In raising this objection, Plaintiff does not dispute that the ALJ assessed Plaintiff's claimed affective disorders, specifically depression and bipolar disorder, pursuant to the criteria in listing 12.04. (R. at 21-22, 44-45); See 20 C.F.R., Subpart P, App'x 1, 12.04. Instead, Plaintiff focuses on an IQ determination by a consulting psychologist, who found that Plaintiff had an IQ score consisting of 66 on the verbal scale, 73 on the performance scale, and a full scale IQ of 66, technically placing him within the "mildly mentally retarded range of intellectual functioning." (R. 25, 740). Plaintiff therefore argues that he should have been found per se disabled pursuant to listing 12.05(C) without further consideration of vocational factors such as age, education, and work experience.

In order to to meet or medically equal the listing under subsection 12.05(C), which defines mental retardation for purposes of social security regulations, a claimant must have "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." 20 C.F.R., Subpart P, App'x 1, 12.05; see Talavera v. Astrue , 697 F.3d 145, 153 (2d Cir. 2012). Specifically, a claimant must have a valid IQ score between 60 and 70 and related deficits in adaptive ...


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