United States District Court, N.D. New York
DONALD J. INSEL, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
EARL S. HINES, Magistrate Judge.
Donald John Insel ("Insel") seeks review of an adverse decision on his applications for disability-based social security benefits.
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").
Insel applied for disability insurance benefits and supplemental security income claiming disability due to "diabetes, back injury, depression, left and right shoulder injury, high blood pressure, high cholesterol, heart problems, and shortness of breath, " commencing May 29, 2009. (T. 168). An evidentiary hearing was held before an administrative law judge, Marie Greener ("ALJ Greener"). (T. 12, 30-58). Insel, represented by counsel, attended and testified. ( Id. ).
ALJ Greener denied Insel's applications. (T. 12-24). The Appeals Council denied Insel's request to review. (T. 1-6). Insel then instituted this proceeding.
III. Commissioner's Decision
Under the Social Security Act, "disability" means "inability 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 12 months." 42 U.S.C. 423(d)(1)(A); accord 42 U.S.C. 1382c(a)(3)(A). Physical or mental impairments must be "of such severity that [the individual] 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." 42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B).
The Commissioner prescribes by regulation a five-step sequential evaluation procedure which is approved by courts as a fair and just way to determine disability applications in conformity with the Social Security Act. ALJ Greener employed this method when adjudicating Insel's claim. Critical findings are summarized below.
A. Step 2 Findings
At Step 2, administrative adjudicators determine existence and severity of impairments. ALJ Greener found that Insel suffers from severe impairments consisting of right shoulder and back impairments and "a possible history of emphysema. " (T. 14) (emphasis added). She found other impairments not severe because they caused no more than minimal effect in Insel's ability to perform basic work activities. These additional but non-severe impairments are: diabetes mellitus type II, obesity, hypertension, hyperlipidemia, left shoulder impairment, and depression. (T. 14-15).
B. Step 3 Finding
At Step 3, administrative adjudicators decide whether severe impairments meet or medically equal a presumptively disabling impairment in the Commissioner's "Listings." ALJ Greener determined that Insel's severe shoulder and back impairments are not of Listings-level severity.
ALJ Greener's decision contains no finding or discussion relating to whether Insel's emphysema meets or medically equals a Listing for respiratory disorders.
C. Residual Functional Capacity Finding
Before proceeding to the remaining sequential steps, ALJ Greener determined Insel's "residual functional capacity." She found that, despite his impairments, Insel retains capacity to perform work at the light exertional level, except that he must avoid exposure to pulmonary irritants. (T. 17).
When making this determination, ALJ Greener weighed medical opinion and Insel's subjective testimony. With respect to Insel's physical residual functional capacity, she gave "little weight" to opinions of Insel's treating surgeon, Dr. John Cambareri, M.D. (T. 21). Instead, she relied on reports from Dr. Muhammad Toor, M.D., a consultative examining physician, and Dr. Mark L. Goodman, M.D., an "independent medical examiner" in a separate pending workers' compensation proceeding.
ALJ Greener made no findings and included no discussion of Insel's mental residual functional capacity. She did, however, find Insel's depression to be a "medically determinable mental impairment." (T. 15).
Finally, ALJ Greener concluded that Insel's subjective self-assessments concerning intensity, persistence and limiting effects of his impairment-related symptoms "are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (T. 18).
D. Step 4 and Step 5 Findings
ALJ Greener found that Insel's residual functional capacity for light work with no exposure to pulmonary irritants precludes performance of his past relevant work as a truck driver. (T. 22). Insel thus carried his burden to prove a prima facie case of disability. The burden then shifted to the Commissioner to show at Step 5 that Insel can still perform alternative and available work.
At Step 5, ALJ Greener determined that Insel can still engage in alternative, available work. (T. 23). To make this finding, ALJ Greener consulted Medical-Vocational Guidelines commonly referred to as "the grids." (T. 23). She concluded that a finding of "not disabled" was appropriate under the framework of Rule 202.21, and Insel's application was denied. ( Id. ). She acknowledged that the grids do not account for nonexertional limitations such as inability to tolerate pulmonary irritants, but concluded that this limitation has little or no effect on Insel's "occupational base of unskilled light work."
IV. Points of Alleged Error
Insel's brief proffers three points of error stated verbatim below:
1. The ALJ's RFC determination is not supported by substantial evidence;
A. The ALJ improperly discounted the opinion of treating physician, ...