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Wilbur v. Colvin

United States District Court, N.D. New York

May 30, 2014

JAMES A. WILBUR, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


EARL S. HINES, Magistrate Judge.

James A. Wilbur ("Wilbur") seeks review of a partially adverse-decision on his application for disability-based benefits under the Social Security Act.[1]

I. Judicial Review

A reviewing court's limited role under 42 U.S.C. § 405(g) is to determine whether (a) the Commissioner applied proper legal standards and (b) the decision is supported by substantial evidence. See Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also 42 U.S.C. § 405(g). When reviewing acts of administrative agencies, courts also must take "due account" of "the rule of prejudicial error." 5 U.S.C. § 706; see also 28 U.S.C. § 2111 (directing that judgments given upon examination of records be "without regard to errors or defects which do not affect the substantial rights of the parties"); see also FED. R. CIV. P. 61 (stating that "the court must disregard all errors and defects that do not affect any party's substantial rights").

I. Background

Wilbur alleged disability commencing September 6, 2005, due to lower back pain and nerve damage. (T. 194, 223). After lengthy administrative proceedings, [2] an administrative law judge, John P. Ramos (ALJ Ramos) granted Wilbur's application and awarded benefits based on disability commencing on November 16, 2010. (T. 22-34). Wilbur requested Appeals Council review of that portion of ALJ Ramos's decision holding Wilbur not disabled prior to November 16, 2010 - i.e., the period between September 6, 2005, and November 16, 2010. (T. 1-8). The Appeals Council denied that request, and Wilbur instituted this proceeding.

II. Commissioner's Decision[3]

With respect to the period of alleged disability before November 16, 2010, ALJ Ramos found that Wilbur never engaged in substantial gainful activity, and met insurance requirements of the Act. (T. 25). He found that Wilbur had a severe impairment consisting of degenerative disc disease of the lumbar spine status-post surgery. ( Id. ). This impairment reduced his residual functional capacity such that he could perform only a full range of sedentary work.[4] ( Id. ).

Due to reduced residual functional capacity, ALJ Ramos found that Wilbur lacked physical ability to perform past relevant work as a steel mill worker. (T. 31) He further found, however, that Wilbur could perform alternative, available work. In this respect, ALJ Ramos applied Medical-Vocational Guidelines commonly referred to as "the grids" (T. 32), and concluded that a finding of "not disabled" was directed by Rule 201.21. ( Id. ).

III. Points of Alleged Error

Wilbur's brief articulates three points of alleged error:

1. The ALJ erred by failing to recontact Plaintiff's treating physician, Dr. Silverstein, for clarification of his opinion;
2. The ALJ's credibility findings that are unsupported by substantial evidence because the ALJ erred in considering the required factors when assessing Plaintiff's credibility; and
3. The ALJ's Step 5 determination is unsupported by substantial evidence because the ALJ failed to obtain testimony of a vocational expert despite the presence of significant nonexertional impairments.

(Dkt. No. 12).

IV. Residual Functional Capacity

Wilbur's first two points ultimately relate to ALJ Ramos's determination of Wilbur's "residual functional capacity" during the contested 2005-2010 period. This term refers to what persons can still do in work settings despite physical and/or mental limitations caused by their impairments and related symptoms, such as pain. See 20 C.F.R. § 404.1545(a)(1); see also SSR 96-8p, TITLES II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 1996 WL 374184, at *2 (SSA July 2, 1996). When arriving at such determinations, administrative law judges consider and assess credibility of all relevant evidence, including forensic medical opinions and subjective lay testimony.

Wilbur's first point argues that ALJ Ramos erred in assessing credibility of a treating physician's medical opinion. Wilbur's second point argues that ALJ Ramos erred when evaluating credibility of Wilbur's subjective testimony.

A. Medical Opinion of Dr. Silverstein

Dr. Bruce N. Silverstein, M.D., treated Wilbur on a monthly basis from the alleged date of onset (September 2005) through and beyond the established onset date (November 16, 2010). In connection with separate worker compensation proceedings, Dr. Silverstein repeatedly opined that Wilbur was totally disabled, and unable to return to work. (T. 634-59, 674, 725, 727, 733, 882, 888, 900, 932, 997-98).

ALJ Ramos's decision does not mention Dr. Silverstein by name, but it references (by exhibit numbers) testimony given by Dr. Silverstein (and other treating sources) "during several depositions that took place prior to November 16, 2010 in connection with the claimant's Workers' Compensation claim."[5] ALJ Ramos stated that he considered these treating provider reports only for their reported clinical and diagnostic findings and functional limitations, because "conclusory statements assessing disability under Workers' Compensation guidelines or rules... are... not binding... and represent an opinion on an issue reserved to the Commissioner." (T. 30). ALJ Ramos stated, nonetheless, that he afforded some weight to testimony given by ...

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