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Carr v. Colvin

United States District Court, N.D. New York

March 25, 2014

LISA CARR, Plaintiff,
CAROLYN W. COLVIN, Acting Comm'r of Soc. Sec., Defendant.

LACHMAN & GORTON PETER A. GORTON, ESQ. Counsel for Plaintiff Endicott, NY.



GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Lisa Carr ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 10, 11.) For the reasons set forth below, Plaintiff's motion is granted and Defendant's motion is denied.


A. Factual Background

Plaintiff was born on July 28, 1985. Plaintiff has completed education through the eleventh grade. She received special education services. Plaintiff has attempted to earn her General Equivalency Diploma, but failed the exam. She has most recently worked as a cashier and stock clerk for a convenience store. Generally, Plaintiff's alleged disability consists of depression, anxiety, panic disorder, Attention Deficit Hyperactivity Disorder ("ADHD"), sleep disorder, migraine headaches, vertigo and ankle pain. Her alleged disability onset date is February 28, 2009, and her date last insured is December 31, 2009.

B. Procedural History

On October 26, 2011, Plaintiff applied for Social Security Disability Insurance and Supplemental Security Income ("SSI"). Plaintiff's application was initially denied, after which she timely requested a hearing before an Administrative Law Judge ("the ALJ"). On August 9, 2012, Plaintiff appeared before the ALJ, Elizabeth Koennecke. (T. 47-66.) On August 28, 2012, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 26-46.) On October 26, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (T. 32-40.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (T. 32.) Second, the ALJ found that, as of the date of Plaintiff's application for SSI, her panic disorder was a severe impairment, but that none of Plaintiff's mental impairments were severe on and after her alleged onset date through her date last insured. (T. 32-34.) Third, the ALJ found that Plaintiff does not have a severe impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 34-35.) The ALJ considered Listing 12.06. ( Id. ) Fourth, the ALJ found that Plaintiff has no exertional limitations and that mentally, she retains the ability (on a sustained basis) to frequently understand, carry out and remember simple instructions, frequently respond appropriately to supervisors, coworkers and ususal work situations, and frequently deal with changes in a routine, low contact work setting. (T. 35-39.) Fifth, the ALJ found that Plaintiff has no past relevant work. (T. 39.) Sixth, and finally, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T. 39-40.)


A. Plaintiff's Arguments

Plaintiff makes seven separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues that the failure to consider relevant evidence submitted to the Appeals Council warrants reversal, or, in the alternative, remand. (Dkt. No. 10 at 9-11 [Pl.'s Mem. of Law].) Second, Plaintiff argues that the ALJ erred, at step two of the sequential analysis, when she concluded that no mental impairment has been shown on and after Plaintiff's alleged onset date. ( Id. at 11-14.) Third, Plaintiff argues that the ALJ erred in finding, at step three of the sequential analysis, that Plaintiff's anxiety disorder does not meet or equal Listing 12.06. ( Id. at 14-17.) Fourth, Plaintiff argues that the ALJ violated the treating physician rule. ( Id. at 17-18.) Fifth, Plaintiff argues that the ALJ failed to properly assess her RFC and improperly assessed her credibility. ( Id. at 18-22.) Sixth, Plaintiff argues that the ALJ erred at step five of the sequential analysis when she failed to elicit testimony from a vocational expert. ( Id. at 22-23.) Seventh, and finally, Plaintiff argues that the ALJ erred in failing to address her low Global Assessment Functioning ("GAF") scores. ( Id. at 23-24.)

B. Defendant's Arguments

In response, Defendant makes six arguments. First, Defendant argues that the ALJ properly considered all of Plaintiff's mental impairments at step two of the sequential analysis. (Dkt. No. 11 at 6-8 [Def.'s Mem. of Law].) Second, Defendant argues that the ALJ properly determined that Plaintiff's mental impairment does not meet Listing 12.06. ( Id. at 9-12.) Third, Defendant argues that the ALJ properly evaluated the medical evidence, including the opinion of the treating physicians, and reasonably found that Plaintiff retained the RFC for routine work in a low contact setting. ( Id. at 12-18.) Fourth, Defendant argues that the ALJ properly evaluated Plaintiff's credibility. ( Id. at 18-20.) Fifth, Defendant argues that the ALJ properly found that Plaintiff could do other work. ( Id. at 20-22.) Sixth, and finally, the ALJ argues that remand is not required for the ALJ to consider the additional evidence submitted. ( Id. at 22-24.)


A. Standard of Review

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 the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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 evidence that amounts to "more than a mere scintilla, " and 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 (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).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." 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).

B. Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). The five-step process is as follows:

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. Under the cases previously discussed, the claimant bears the burden of the proof as to the first four steps, while the [Commissioner] must prove the final one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).


A. Whether New Evidence Submitted to the Commissioner Warrants Reversal, or, in the Alternative, Remand

After carefully considering the matter, the Court answers this question in the negative in part and the affirmative in part, generally for the reasons stated in Plaintiff's memorandum of law. (Dkt. No. 10 at 9-11 [Pl.'s Mem. of Law].) The Court would only add the following brief analysis.

Plaintiff argues that the Commissioner erred when the Appeals Council to failed to consider new evidence she submitted. To be sure, "new evidence submitted to the Appeals Council following the ALJ's decision becomes part of the administrative record for judicial review when the Appeals Council denies review of the ALJ's decision." Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). However, "the new evidence submitted to the Appeals Council forms part of the administrative record under review... only to the extent that it relates to the time frame encompassed in the ALJ's decision." Baladi v. Barnhart, 33 F.Appx. 562, 564 (2d Cir. 2002) (citing Perez, 77 F.3d at 45). Here, Plaintiff submitted to the Appeals Council treatment records and medical source statements from her treating physician, Dr. Thomas Osborne, M.D., for the period June 2010 through August 2012 and a psychological and intellectual assessment of employability conducted by Mary Ann Moore, Psy. D., for Broome County Department of Social Services in August 2012. (T. 551-628.) All of these records relate to a period relevant to the decision rendered by the ALJ in this case. Accordingly, those records are part of the administrative record under review.

Defendant counters that the Appeals Council did consider the new evidence but found that it did not provide a basis for changing the ALJ's decision. However, "[w]hen[, as here, ] the Appeals Council denies review after considering new evidence, [the Court] simply review[s] the entire administrative record, which includes the new evidence, and determine[s], as in every case, whether ...

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