United States District Court, N.D. New York
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
Kristine Miley ("Miley") seeks review of an adverse decision on her application for disability-based supplemental security income 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). Courts cannot retry factual issues de novo or substitute their interpretations of administrative records for that of the Commissioner when substantial evidence supports the decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Neither can they overturn administrative rulings because they would have reached a different conclusion had the matter come before them in the first instance. See Campbell v. Astrue, 465 Fed.App'x 4, 5 (2d Cir. 2012) (summary order).
Miley, born in 1981 and morbidly obese (5'2" and 330 lbs. in 2012), has a tragic personal history. She applied for benefits due to post-traumatic stress disorder ("PTSD"), depression, stomach problems, leg problems, and intestinal problems commencing May 30, 2007. (T. 100). An evidentiary hearing was held before an administrative law judge, John P. Ramos ("ALJ Ramos"). (T. 15, 282-315). Miley, represented by counsel,  attended and testified. ( Id. ).
ALJ Ramos denied Miley's application in a written decision dated October 23, 2012. (T. 15-24). Miley requested Appeals Council review. After considering Miley's objections and additional evidence (consisting of treatment notes of Scott Rosman, CNP, dated September 14, 2012), the Appeals Council denied Miley's request to review. (T. 6-9). Miley then instituted this proceeding.
III. Commissioner's Decision
Utilizing a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just way to determine disability applications in conformity with the Social Security Act,  ALJ Ramos found that Miley suffers from severe impairments consisting of morbid obesity, PTSD, anxiety disorder, and depressive disorder. (T. 15). He considered none of these impairments presumptively disabling under 20 C.F.R. Pt. 404, Subpt. P, App. 1 (the "Listings"). ALJ Ramos next determined that Miley retains residual functional capacity to perform simple, low-stress, consistent, repetitive tasks with supervision at the sedentary exertional level that do not require managing or supervising others' work. (T. 19).
Miley has no past relevant work. Thus, ALJ Ramos consulted the Medical-Vocational Guidelines, commonly referred to as "the grids, " to determine if there is any available work that a person with Miley's residual functional capacity can perform. (T. 23-24). He concluded that a finding of "not disabled" was appropriate under the framework of Rule 201.24 and SSR 85-15. Miley's application, therefore, was denied. (T. 24).
IV. Points of Alleged Error
Miley's brief presents four points of error, as follows:
1. ALJ errs in failing to determine the functional limitations associated with headaches and strong body odor and in failing to find that they constitute a severe condition;
2. ALJ's RFC to impairments created by Plaintiff's mental illness is erroneously understated;
3. ALJ's credibility determination is not proper; and expert to determine the erosion of the job base.
(Dkt. No. 19, p. 2).
In response, the Commissioner argues that ALJ Ramos employed correct legal principles and his factual findings are supported by substantial evidence. (Dkt. No. 15, pp. 5-23).
V. Step 2 Severity Determination
While ALJ Ramos agreed that Miley has severe impairments (listed above), he declined to find her body odor, leg pain, back pain, stomach pain, headaches, nausea, numbness, and dizziness as severe impairments. Miley complains that ALJ Ramos erred in failing to find that her headaches and strong body odor constitute severe conditions. (Dkt. No. 19, p. 7). Miley maintains that her body odor limits employment opportunities and, accordingly, must be assessed as a severe impairment. ( Id., p. 8). She further contends that her headaches must be assessed both as a severe condition and in terms of their episodic limiting effect upon employment. ( Id. ).
A. Governing Principles
Existence and severity of impairments are determined at Step 2 of the sequential evaluation process (described earlier in note 5). "Impairments" are "anatomical, physiological, or psychological abnormalities... demonstrable by medically acceptable clinical and laboratory techniques." Severe impairments significantly limit an individual's physical or mental ability to do basic work activities.
In this Circuit, a Step 2 severity inquiry serves only to "screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). Consequently, "[a] finding of not severe' should be made if the medical evidence establishes only a slight abnormality'... [with]...no more than a minimal effect on an individual's ability to work.'" Rosario v. Apfel, No. 97 CV 5759, 1999 WL 294727, at *5 (E.D.N.Y. Mar. 19, 1999) (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)).
1. Body Odor
Miley's assertions that her strong body odor has "cost her jobs" and "diminishes her ability to work with others, " may be accurate. Such repulsive condition, however, does not constitute a severe impairment unless it is an impairment within the specialized meaning of the Social Security Act. Miley has not been diagnosed by a physician as having an anatomical, physiological or psychological abnormality that produces body odor. Only one progress note from a physician's assistant, Joseph Brunt, P.A. ("PA Brunt"), even records a strong body odor. (T. 216-17). PA Brunt, however, did not diagnose a medical condition related to Miley's odor; rather, he observed and noted that Miley appeared disheveled, suggestive of inadequate personal grooming, not an impairment demonstrable by diagnostic techniques. (T. 216). PA Brunt did not ...