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Wahrmann v. Commissioner of Social Security

United States District Court, N.D. New York

August 19, 2014

JOHN K. WAHRMANN, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

JOHN K. WAHRMANN, plaintiff, pro se.

TOMASINA DIGRIGOLI, ESQ., for defendant.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

This matter was referred to me for report and recommendation by the Honorable David N. Hurd, 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 May 3, 2010, plaintiff protectively filed[1] his application for disability insurance benefits and an application for SSI benefits, claiming disability beginning May 1, 2010. (Administrative Transcript ("Tr.") 155-63, 184, 149-54). Plaintiff's applications were denied initially on November 14, 2010 (Tr. 76, 83, 90-95), and he requested a hearing before an ALJ (Tr. 96-98). The hearing, at which plaintiff testified, was conducted on January 26, 2012. (Tr. 28-75).

In a decision dated April 25, 2012, the ALJ found that plaintiff was not disabled. (Tr. 6-23). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on February 19, 2013. (Tr. 1-4).

On April 19, 2013, plaintiff filed a pro se complaint[2] with this court, appealing the Commissioner's decision, along with a motion for leave to proceed in forma pauperis. (Dkt. Nos. 1, 2). This court issued General Order 18, describing the process followed in this District for Social Security appeals. (Dkt. No. 3). Defendant filed an answer and the administrative record on August 16, 2013. (Dkt. Nos. 11, 13). When plaintiff did not file a brief in accordance with General Order 18, the court ordered defendant to file a brief within 60 days, and provided plaintiff with an additional 45 days after that to file a response brief in support of his position. (Dkt. No. 15). Plaintiff did not do so.

II. FACTS

Defendant's counsel has incorporated the ALJ's summary into her brief. (Def. Br. at 4). This court will also incorporate the facts as stated by the ALJ and defense counsel, with any exceptions as noted in the discussion below.

III. ALJ's DECISION

The ALJ found that plaintiff had not engaged in substantial gainful activity since May 1, 2010, the alleged onset date.[3] (Tr. 11). The ALJ then found that plaintiff had three "severe" impairments: degenerative disc disease, fibromyalgia, and depressive disorder NOS.[4] (Tr. 12). The ALJ concluded, however, that these impairments did not meet the severity of the listed impairments.[5] (Tr. 14-15). The ALJ explained that his analysis of plaintiff's limitations in the context of the listed impairments did not constitute an RFC finding, and that his RFC would contain a more detailed assessment of plaintiff's limitations. (Tr. 15).

The ALJ then proceeded to Step 4 and found that plaintiff had the physical RFC to lift/carry 20 pounds on an occasional basis; lift/carry 10 pounds on a frequent basis; sit for a total of six hours; stand/walk for a total of six hours; and occasionally climb, balance, stoop, kneel, crouch, and crawl. The ALJ further found that despite plaintiff's claimed difficulty maintaining concentration, persistence and pace, plaintiff would be capable of performing low-stress work requiring only occasional decisionmaking, occasional changes in the work setting, occasional judgment, and occasional interaction with the public, co-workers, and supervisors. (Tr. 15, 18).

The ALJ analyzed plaintiff's symptoms and determined that despite plaintiff's claimed lower extremity pain and weakness and back pain, there were minimal positive diagnostic and clinical findings to corroborate these complaints. The ALJ found that the significant gaps in plaintiff's medical and psychiatric treatment history were inconsistent with plaintiff's complaints of continued pain and psychiatric problems. (Tr. 18). The ALJ found that while plaintiff's impairments could reasonably be expected to cause the alleged symptoms, the reported intensity, persistence and limiting effects were not fully credible. (Tr. 18). The ALJ further observed that plaintiff's credibility was weakened by his failure to report his alcohol history to a consultative examiner, and by the observations of his treating providers who found him to be "an unreliable historian and... manipulative, " and who believed that "there was a psychogenic origin" to some of his complaints. (Tr. 18-19).

The ALJ concluded that plaintiff's subjective complaints of pain could not overcome the medical opinions in the record, which did not support the existence of a disabling impairment. (Tr. 20). The ALJ cited reports authored by Roberto Rivera, M.D.; Dennis Noia, M.D.; H. Ferrin; and Stephen Hudyncia, M.D. (Tr. 19-20). The ALJ also discussed the observations of plaintiff's treating pain management provider and treating nurse practitioner. (Tr. 19). The ALJ assigned great weight to Dr. Rivera's consultative internal medicine examination. Dr. Rivera opined that plaintiff had no limitations to sitting or standing, but as a result of his lower back pain, had mild limitations to walking, lifting, and carrying; and mild to moderate limitations to pushing and pulling. (Tr. 19). The ALJ further noted that there were no opinions from treating sources regarding plaintiff's physical limitations. (Tr. 19).

The ALJ assigned significant weight to Dr. Noia, who performed a psychiatric examination of plaintiff and opined that despite having some difficulty dealing with stress, plaintiff could understand and follow simple instructions and directions; perform simple and some complex tasks with supervision and independently; maintain attention and concentration for tasks; regularly attend to a routine and maintain a schedule; learn new tasks; make appropriate decisions; and relate to and interact moderately well with others. (Tr. 19). The ALJ placed substantial weight on the RFC assessment completed by the State Agency review psychologist, Dr. Ferrin, who determined that plaintiff was still capable of handling both the simple and most of the complex work-related tasks within a work setting. (Tr. 20). The ALJ assigned little weight to the medical source statement completed by Dr. Hudyncia, observing that there was no evidence suggesting that plaintiff was treated by Dr. Hudyncia, and that his restrictive opinion "contrasts sharply with the other opinions of record." (Tr. 20).

The ALJ next determined that plaintiff would be unable to perform his past relevant work as a security officer and licensed practical nurse, and analyzed whether, considering his age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that he could perform. (Tr. 20-22). Based on the physical limitations in the ALJ's RFC determination, the ALJ found that plaintiff would be able to perform the full range of light work. (Tr. 21). However, the ALJ then considered plaintiff's nonexertional limitations, concluding that his postural restrictions had very little impact on the occupational base for unskilled light work, and that despite his nonexertional mental limitations, he "continues to possess the ability, on a sustained basis, to understand, carry out, and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and deal with changes in a routine work setting. (Tr. 22). The ALJ determined that plaintiff maintained the capacity to meet the three basic mental demands required for competitive and remunerative unskilled work. ( Id. ). The ALJ found that the testimony of a vocational expert was unnecessary as plaintiff's nonexertional limitations would have "little or no effect" on his occupational base. ( Id. ). Therefore, the ALJ found that plaintiff was not disabled.

IV. 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 ...

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