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Bartko v. Colvin

United States District Court, N.D. New York

September 5, 2014

THOMAS BARTKO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

REPORT AND RECOMMENDATION

EARL S. HINES, Magistrate Judge.

Thomas Bartko ("Bartko") seeks review of an adverse decision on his application for disability insurance benefits under the Social Security Act.

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). Reviewing 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").

II. Background

In 2001, while working as a garage maintenance worker, Bartko sustained a low-back injury while operating a power-washer at work. (T. 250). Nine years later, on November 22, 2010, Bartko protectively filed an application for disability insurance benefits, alleging that he became unable to work due to back pain as of September 25, 2001.[1] (T.51-52, 55-66, 101-07). His claim eventually was assigned to administrative law judge, Dale Black-Pennington ("ALJ Black-Pennington"), who conducted an evidentiary hearing. (T. 32-50).

ALJ Black-Pennington denied Bartko's application in a written decision dated February 22, 2012. (T. 18-27). The Appeals Council denied Bartko's request for review (T. 1-6). Bartko then instituted this proceeding.

III. Commissioner's Decision

ALJ Black-Pennington concluded that there was "no doubt" that Bartko was disabled due to degenerative disc disease of the lumbar spine as of the dates of the evidentiary hearing and written decision. (T. 26). But, as of the date Bartko was last insured - December 31, 2006 - Bartko still had residual functional capacity for a full range of sedentary work. (T.23). It precluded performance of Bartko's past relevant work as maintenance worker (T. 26), but permitted him to perform alternative, available work.[2] (T. 26-27). Therefore, Bartko's application was denied. (T. 27).

IV. Points of Alleged Error

Bartko argues that ALJ Black-Pennington erred as follows:

The Administrative Law Judge failed to comply with 20 C.F.R. 404.1527 by failing to accord adequate weight to the opinion of the claimant's treating orthopedic specialist, Stewart Kaufman, M.D.

(Dkt. No. 10, p. 1). Dr. Kaufman opined that Bartko was "totally disabled" from 1/23/03 thru 8/11/06. Bartko argues that this description necessarily indicates that Bartko was unable to perform any type of work. ( Id., p. 3). Bartko contends that Dr. Kaufman's opinion was well-supported by medically accepted clinical and diagnostic findings, and was consistent with other substantial evidence of record. ( Id., pp. 4-5). Bartko contends that ALJ Balck-Pennington erred by failing to afford Dr. Kaufman's opinion controlling weight or provide any reason for her "obvious rejection" thereof. ( Id., p. 6).

The Commissioner responds that Dr. Kaufman's "totally disabled" notations were not medical opinions, but rather statements that ALJ Black-Pennington was not required to accept on an issue reserved exclusively to the Commissioner. (Dkt. No. 11, p. 5). The Commissioner argues that Dr. Kaufman's opinion on disability was given in the context of state workers' compensation proceedings, which apply a different definition of disability. ( Id., p. 6).

The Commissioner further contends that ALJ Black-Pennington did not ignore evidence from Dr. Kaufman because Dr. Kaufman's treatment notes are mentioned expressly in ALJ Black-Pennington's residual functional capacity determination. (Dkt. No. 11., p. 7). The Commissioner acknowledges that ALJ Black-Pennington did not mention or expressly weigh Dr. Kaufman's total-disability opinion, but argues that administrative law judges are not required to state every reason justifying their decisions. ( Id. ).

Finally, the Commissioner argues that Bartko's condition worsened to its present state after his last-insured date, and such fact cannot support a finding of disability prior to his date last insured. (Dkt. No. 11, p. 14). The Commissioner points out, however, that even after Bartko's condition worsened, Dr. ...


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