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Bushey v. Colvin

United States District Court, N.D. New York

September 30, 2014

Tina Bushey, Plaintiff,
Carolyn Colvin, Comm'r of Soc. Sec., Defendant.

OFFICE OF MARK A. SCHNEIDER MARK A. SCHNEIDER, ESQ., Plattsburgh, NY, Counsel for Plaintiff.



GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Tina Bushey ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 17, 21.) For the reasons set forth below, Defendant's motion is granted, and Plaintiff's motion is denied.


A. Factual Background

Plaintiff was born on May 10, 1982. She was in special education initially, but was in regular classes once she reached "higher grades." (T. 29.) Plaintiff completed her education through the eighth grade but did not obtain a General Equivalency Diploma. She has worked as a stock clerk in the produce department of a grocery store and has also worked for a jewelry packaging company. Generally, Plaintiff's alleged disability consists of degenerative disc disease, sciatica, nerve blockages in both legs, deficiency in vitamins B12 and D, bilateral hand pain, an autoimmune disorder, alopecia and joint pain in her hands and knees. Plaintiff's alleged disability onset date is June 16, 2010 and her date last insured is September 30, 2012.

B. Procedural History

On January 10, 2011, Plaintiff applied for Social Security Disability Insurance. Plaintiff also applied for Supplemental Security Income on January 26, 2011. Plaintiff's applications were initially denied, after which she timely requested a hearing before an Administrative Law Judge ("the ALJ"). On April 5, 2012, Plaintiff appeared before the ALJ, Thomas Grabeel. (T. 25-38.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on April 18, 2012. (T. 8-24.) On June 14, 2013, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-5.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following five findings of fact and conclusions of law. (T. 13-20.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (T. 13.) Second, the ALJ found that Plaintiff's degenerative disc disease, scoliosis and cognitive disorder are severe impairments. (T. 13-14.) Third, the ALJ found that Plaintiff's impairments did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 14.) The ALJ considered the 12.00 Listings. ( Id. ) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b).[1] (T. 14-19.) The ALJ further found that Plaintiff

is able to perform the basic mental demands of work from which the vocational guidelines are predicated. [Plaintiff] has the ability to understand, carry out and remember simple and some slightly more detailed instructions and tasks. She can respond appropriately to others and usual work situations on a sustained basis, and deal with changes in a routine work setting. However, [Plaintiff] may have some difficulty consistently performing work of a skilled (or more complex) nature. Regardless, the overall light job base is not significantly reduced or eroded by the restriction of some semi-skilled tasks and higher skilled occupations.

( Id. ) Fifth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T. 19-20.)


A. Plaintiff's Arguments

Plaintiff makes four separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues that the ALJ violated the treating physician rule by improperly weighing the opinions of various treating physicians and consultative examiners as well as Plaintiff's treating physician assistant. (Dkt. No. 17 at 12-19 [Pl.'s Mem. of Law].) Second, Plaintiff argues that the ALJ erred in concluding that Plaintiff has the RFC to perform work, despite her combination of limitations from her spinal disorder, pain, mental disabilities, side effects from medications and autoimmune disorder. ( Id. at 19-25.) Third, Plaintiff argues that the ALJ erred when he rejected her credibility without clear and convincing evidence. ( Id. at 25-29.) Fourth, and finally, Plaintiff argues that the ALJ erred when he failed to fully develop the record when he did not perform an IQ test on Plaintiff and when he failed to consider the records from Plaintiff's previous claim when deciding her current claim. ( Id. at 29-39.)

B. Defendant's Arguments

In response, Defendant makes seven arguments. First, Defendant argues that the administrative record before the ALJ and before this Court properly excludes most of the documents from Plaintiff's prior claim for benefits because (1) the record in this case is complete in that it includes Plaintiff's medical records beginning one year prior to her application filing date; (2) Plaintiff is collaterally estopped from arguing that the December 24, 2009 opinion of physician assistant, Thomas Gavin, would be entitled to any weight; and (3) Plaintiff waived any inclusion of records from her prior claim other than those already included in the administrative record in this case. (Dkt. No. 21 at 5-11 [Def.'s Mem. of Law].) Second, Defendant argues that the ALJ properly evaluated the opinions of Plaintiff's treating sources in determining her RFC. ( Id. at 12-14.) Third, Defendant argues that the ALJ properly evaluated Plaintiff's mental impairments. ( Id. at 15-16.) Fourth, Defendant argues that the ALJ was not required to test Plaintiff's IQ. ( Id. at 16-17.) Fifth, Defendant argues that Plaintiff's impairments did not meet or equal Listing 1.04. ( Id. at 17-18.) Sixth, Defendant argues that the ALJ properly assessed Plaintiff's credibility. ( Id. at 18-20.) Seventh, and finally, Defendant argues that the ALJ properly evaluated Plaintiff's alopecia. ( Id. at 21.)


A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

"Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably ...

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