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Rodda v. Colvin

United States District Court, Second Circuit

December 27, 2013

THOMAS RODDA, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, in place of Michael J. Astrue, Defendant.

THE ANTONOWICZ GROUP PETER W. ANTONOWICZ, ESQ., Rome, New York, Attorneys for Plaintiff.

SOCIAL SECURITY ADMINISTRATION AMANDA J. LOCKSHIN, ESQ., Office of the General Counsel Region II, New York, New York, Attorney for Defendant.

MEMORANDUM-DECISION AND ORDER

MAE A. D'AGOSTINO, District Judge.

I. INTRODUCTION

Plaintiff Thomas Rodda brings the above-captioned 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 Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). Presently before the Court are Plaintiff's motion for judgment on the pleadings, Dkt. No. 12, and Defendant's opposition and cross-motion for judgment on the pleadings, Dkt. No. 13.

II. BACKGROUND

On March 18, 2010, Plaintiff protectively filed an application for DIB and SSI, alleging a disability onset date of October 15, 2009. Dkt. No. 10, Administrative Transcript ("T."), at 148-53; 154-57. On August 18, 2010, Plaintiff's applications were denied, T. 90-95, and on June 22, 2011, Plaintiff and his counsel appeared by video at a hearing before Administrative Law Judge ("ALJ") Bruce S. Fein, T. 42-87. ALJ Fein issued a decision denying Plaintiff's claims for benefits on September 22, 2011. T. 18-34. Thereafter, Plaintiff requested review by the Appeals Council, T. 15, which review was denied on September 10, 2012, T. 1-6, thereby making the ALJ's decision the final decision of the Commissioner of Social Security.

Plaintiff was 37 years old at the time of the ALJ's decision, with a high school education and past work experience as a cook, cable technician, guide, caretaker, and laborer. T. 32. Plaintiff alleges disability as a result of non-epileptic seizure disorder, narcolepsy, sleep apnea, status post anterior cruciate ligament tear and multiple surgeries in the left knee, depressive disorder-NOS, panic disorder, and alcohol abuse in early remission. T. 34.

III. DISCUSSION

For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or 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), 1382c(a)(3)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a severe impairment, ' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)) (other citations omitted).

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether a plaintiff 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 Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial evidence" is evidence that 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 (1971).

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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since October 15, 2009. T. 23. At step two, the ALJ concluded that Plaintiff suffered from post anterior cruciate ligament tear and multiple surgeries in the left knee, depressive disorder-NOS, panic disorder, and alcohol abuse in early remission, which qualified as a "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). T. 24-26. The ALJ also concluded that "[a]s for the claimant's alleged narcolepsy, seizures, and sleep apnea, there is not enough conclusive medical evidence in the record to show that these conditions rise to the level of a severe impairment." Id. At the third step of the analysis, the ALJ determined that Plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. T. 26-28. The ALJ then found that Plaintiff had the residual functional capacity ("RFC") to perform "medium work" as defined in the Regulations and was

able to lift and/or carry fifty pounds occasionally and twenty-five pounds frequently, stand and/or walk for about six hours in an eight-hour workday, and sit for about six hours in an eight-hour workday. The claimant is able to frequently climb, balance, stoop, and crouch, and he is only able to occasionally crawl and kneel. The claimant must avoid concentrated exposure to respiratory irritants and workplace hazards such as machinery and heights due to his history of non-epileptic seizure-like activity. Additionally, the claimant can engage in simple work in that he is able to (on a sustained basis) understand, carry out, and remember simple instructions and directions, respond appropriately to supervision, co-workers, and usual work situations, and deal with changes in a routine work setting.

T. 28. At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 32. At step five, relying on the medical-vocational guidelines set forth in the Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the national economy. T. 32. Therefore, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Act. T. 33.

In seeking federal judicial review of the Commissioner's decision, Plaintiff argues that: (1) the Commissioner erred when he failed to find that Plaintiff's sleep and seizure disorders were severe medical impairments; (2) the Commissioner erred in determining Plaintiff's RFC; (3) the ALJ improperly assessed Plaintiff's credibility.

I. Severity of Sleep and Seizure Disorder Impairments

Plaintiff argues that the ALJ erred by failing to find that Plaintiff's sleep and seizure disorders were severe impairments. Plaintiff contends that the ALJ's decision in this regard was not supported by substantial evidence. In addition, the Court discerns two related points in support of that argument: (1) the ALJ did not fulfill his duty to develop the record with respect to Plaintiff's seizures, and (2) the ALJ failed to properly consider whether Plaintiff's concurrent impairments, in combination, were severe.

A "severe" impairment is one that significantly limits an individual's physical or mental ability to do basic work activities. Meadors v. Astrue, 370 Fed.Appx. 179, 182 (2d Cir. 2010) (citing 20 C.F.R. §§ 404.1520(c), 416.920(c)). The Regulations define "basic work activities" as the "abilities and aptitudes necessary to do most jobs, " examples of which include,

(1) Physical functions such as walking, standing, lifting, pushing, pulling, reaching, carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering ...

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