United States District Court, N.D. New York
STEVEN R. DOLSON, ESQ., for Plaintiff.
MONIKA K. CRAWFORD, Special Asst. U.S. Attorney, for Defendant.
ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me for report and recommendation by the Honorable Norman A. Mordue, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.
I. PROCEDURAL HISTORY
On January 22, 2009, plaintiff "protectively filed" applications for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits, alleging disability beginning November 22, 2008. (Administrative Transcript ("T.") 12, 80-81, 200-209, 241, 246). The claims were initially denied on or about May 22, 2009, and plaintiff filed a timely request for an administrative hearing. (T. 12, 80-81, 110-11). On March 23, 2011, a hearing was conducted before Administrative Law Judge ("ALJ") Bruce S. Fein, at which plaintiff testified. (T. 52-72). On May 27, 2011 ALJ Fein issued an unfavorable decision. (T. 85-98). Plaintiff timely appealed the determination to the Appeals Council, which subsequently granted review on September 8, 2011 and remanded the matter to ALJ Fein. (T. 101-02).
On February 15, 2012 a second hearing was conducted before ALJ Fein, at which plaintiff and vocational expert Victor Alberigi testified. (T. 28-51). On April 23, 2012, ALJ Fein issued an unfavorable decision in the matter (T. 9-27), which became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on April 22, 2013. (T. 1-6).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any 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 twelve months...." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se] disabled.... 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.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
B. Scope of Review
In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417 (quoting Talavera v. Astrue, 697 F.3d at 151; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera, 697 F.3d at 151 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review "- even more so than the clearly erroneous standard.'" Brault, 683 F.3d at 448.
"To determine on appeal whether an 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). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id . See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
As of the date of the second administrative hearing in February 2012, plaintiff was 39 years old. (T. 28, 200, 241). She reported earning her GED (T. 68, 251), and had past work experience as a cashier, construction worker, home health aide, and waitress (T. 247-48, 267-75). Plaintiff claimed disability based on chronic, radiating neck and back pain; vasovagal syncope; and mental health disorders variously characterized as depression, anxiety, and bipolar disorder. (T. 32-36, 58, 62, 64, 246, 281, 374, 379, 459, 585).
The ALJ's April 23, 2012 decision provides a detailed statement of the medical and other evidence of record (T. 15-17, 18, 19-21), which the defendant's brief (at 1, Dkt. No. 15), adopts by reference. Rather than detailing the evidence in this case at the outset, the court will discuss the relevant facts below, as necessary to address the issues raised by plaintiff.
IV. ALJ's DECISION
The ALJ determined that plaintiff met the insured status requirements for DIB through September 30, 2009, and found that she had not engaged in substantial gainful activity since her alleged onset date of November 22, 2008. (T. 15). Next, the ALJ determined that plaintiff had the following severe impairments: chronic neck and back pain, depressive disorder, and anxiety disorder. (T. 15-17). The ALJ found that plaintiff's impairments did ...