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McCracken v. Colvin

United States District Court, N.D. New York

May 13, 2014

LAURA McCRACKEN, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

LEWIS B. INSLER, ESQ., INSLER & HERMANN, LLP, Tarrytown, New York, Attorneys for Plaintiff.

BENIL ABRAHAM, ESQ., SOCIAL SECURITY ADMINISTRATION, 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 Laura McCracken 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 her application for Disability Insurance Benefits ("DIB"). Presently before the Court are the parties' respective motions for judgment on the pleadings. See Dkt. Nos. 13, 14.

II. BACKGROUND

On November 18, 2008, Plaintiff filed an application for DIB, alleging a disability onset date of December 20, 2007. Dkt. No. 10, Administrative Transcript ("T."), at 278-81. On April 7, 2009, Plaintiff's application was denied, T. 143, 161-65, and on July 28, 2010, Plaintiff and her counsel appeared at a requested hearing before Administrative Law Judge ("ALJ") Roberto Lebron, T. 33-81. ALJ Lebron issued a decision denying Plaintiff's claims for benefits on September 24, 2010. T. 147-53 ("First Decision").

In the First Decision, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since December 20, 2007. T. 149. At step two, the ALJ concluded that Plaintiff suffered from Crohn's disease and depressive disorder, which qualified as severe impairments within the meaning of the Social Security Regulations (the "Regulations"). 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. 149-50. In reaching this conclusion, the ALJ found that Plaintiff's mental impairment did not satisfy the paragraph B or C criteria under listings 12.04 and 12.06 of 20 C.F.R. Part 404, Subpt. P, App. 1. The ALJ's discussion of the paragraph B criteria was limited, and the ALJ failed to discuss the paragraph C criteria in any detail. T. 150. The ALJ then found that Plaintiff had the residual functional capacity ("RFC") to perform a full range of light work. Id. In so doing, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but found her subjective complaints regarding those impairments to be not credible. T. 151. The ALJ considered medical records from treating physician Dr. Kenneth Svensson, but did not describe the weight given to such evidence. T. 151. Similarly, the ALJ considered the opinions of consultative examiner Dr. Nabila Salama, but did not describe the weight given to Dr. Salama's opinions. Id. The ALJ last considered the opinions of treating source Dr. Annetta Kimball, who had seen Plaintiff on a monthly basis since March 23, 2006. Dr. Kimball's opinion that Plaintiff was capable of low stress jobs was given controlling weight. Id. At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 152. 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. 152. Therefore, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Act. Id. Thereafter, Plaintiff requested review by the Appeals Council, which review was granted in a December 7, 2010, order. T. 158-60 ("Remand Order").

In the Remand Order, the Appeals Council vacated the First Decision and remanded the case for the resolution of a number of issues. As an initial matter, the Appeals Council found that the First Decision did not contain an adequate evaluation of the treating source opinion submitted by Dr. Kimball. The First Decision indicated that the ALJ gave controlling weight to Dr. Kimball's opinion. However, the ALJ failed to adopt Dr. Kimball's opinion in its entirety, as is required when a treating source's opinion is given controlling weight. T. 158. The Remand Order further noted that the ALJ failed to provide a sufficient rational for the "B" and "C" criteria used to evaluate whether Plaintiff's mental impairment met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpt. P, App. 1. Moreover, the ALJ's First Decision did not account for Plaintiff's mental limitations in the RFC assessment. T. 158-59. Finally, the Remand Order stated that the First Decision failed to consider the requisite factors in evaluating the intensity, persistence, and limiting effects of Plaintiff's subjective complaints. T. 159.

The Appeals Council further ordered that, upon remand, the ALJ would address these issues by way of the following instructions. The ALJ was instructed to "[g]ive further consideration to the claimant's maximum residual functional capacity during the entire period at issue and provide rationale with specific references to evidence of record in support of assessed limitations." T. 159. Specifically, the ALJ was instructed to evaluate the treating source opinion in accordance with the relevant Regulations, and explain the weight given to such opinion evidence. The ALJ was also instructed to "[f]uther evaluate the claimant's mental impairment" and her subjective complaints in accordance with the Regulations. Finally, the ALJ was instructed,

[i]f warranted by the expanded record, [to] obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on the claimant's occupational base[.] The hypothetical questions should reflect the specific capacity/limitations established by the record as a whole. The [ALJ] will ask the vocational expert to identify examples of appropriate jobs and to state the incidence of such jobs in the national economy[.]

T. 159.

On remand, ALJ Lebron held another hearing on February 7, 2011. T. 103-42. Thereafter, on April 18, 2011, the ALJ issued another unfavorable decision. T. 8-17, 89-98 ("Second Decision"). In the Second Decision, the ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since December 20, 2007. T. 10. At step two, the ALJ concluded that Plaintiff suffered from Crohn's disease, which qualified as a severe impairment within the meaning of the Regulations. Id. The ALJ also concluded that Plaintiff's mental impairments of depression, anxiety were non-severe impairments. In reaching this conclusion, the ALJ considered the paragraph B criteria in detail and found that Plaintiff's "medically determinable mental impairment causes no more than mild' limitation in any of the first three functional areas and no' episodes of decompensation which have been of extended duration in the fourth area." T. 11-12. As in the First Decision, the ALJ concluded, without analysis, that Plaintiff's mental impairment did not satisfy the paragraph C criteria. T. 12. The ALJ also stated the following, the meaning of which is not clear to the Court:

The limitations identified in the "paragraph B" criteria are not a residual functional capacity assessment but are used to rate the severity of mental impairments at steps 2 and 3 of the sequential evaluation process. The mental residual functional capacity assessment used at steps 4 and 5 of the sequential evaluation process requires a more detailed assessment by itemizing various functions contained in the broad categories found in paragraph B of the adult mental disorders listings in 12.00 of the Listing of Impairments (SSR 96-8p). Therefore, the following residual functional capacity assessment reflects the degree of limitation the undersigned has found in the "paragraph B" mental function analysis.

T. 12. 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. Specifically, the ALJ found that there was no evidence that Plaintiff's severe impairment met or medically equaled the criteria listed for "Irritable bowel disease, " and relied on the opinion of consulting examiner Dr. Paul Fulford who testified that Plaintiff's mental impairment did not meet or equal a listing. T. 12. The ALJ then found that Plaintiff had the RFC to perform a full range of medium work. Id. In so doing, the ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but found her "statements concerning the intensity, persistence and limiting effects of these symptoms [we]re not credible to the extent they [we]re inconsistent with the above residual functional capacity assessment." T. 14. The ALJ considered medical records from treating physician Dr. Svensson and consulting expert Dr. Fulford, but did not describe the weight given to such evidence. T. 14-15. As to Dr. Kimball's opinions, the ALJ found the January 2011 functional capacity assessment submitted by Dr. Kimball for the remand proceedings was not supported by substantial evidence of record. Accordingly, the ALJ gave Dr. Kimball's October 2009 opinion which had been given controlling weight in the First Decision greater weight, and found that Plaintiff was precluded from heaving lifting and needed access to a bathroom. T. 14. In addition, the ALJ gave Dr. Kimball's opinions regarding any psychological limitations little weight, as those opinions were unsubstantiated and outside of her expertise as a gastroenterologist. T. 15. At step four, the ALJ concluded that Plaintiff was unable to perform any past relevant work. T. 15-16. 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. 16. Consistent with the Appeals Council's directions set forth in the Remand Order, the ALJ relied upon vocational expert testimony in response to hypotheticals, and found that testimony to be consistent with the information contained in the Dictionary of Occupational Titles. Therefore, the ALJ concluded that Plaintiff was not under a disability as defined by the Social Security Act. T. 17. On September 21, 2011, the Appeals Council denied Plaintiff's request for review of the Second Decision, T. 27-31, thereby making the ALJ's Second Decision the final decision of the Commissioner of Social Security.

Plaintiff was 49 years old at the time of the ALJ's Second Decision, with high school education and past work experience as a Title Examiner. T. 16. Plaintiff alleges disability as a result of Crohn's Disease and depressive disorder. T. 143, 293. Since Plaintiff's arguments are limited to legal error and Defendant does not object to Plaintiff's recitation of the facts, that recitation is adopted herein. See Dkt. No. 13-1 at 3-7.

III. DISCUSSION

A. Legal Standards

For purposes of DIB, 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). 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)).

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 ...


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