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Burgen v. Colvin

United States District Court, N.D. New York

November 26, 2014

BRENTON C. BURGEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant

For Plaintiff: HOWARD D. OLINSKY, ESQ., OF COUNSEL, THE OLINSKY LAW GROUP, Syracuse, New York.

For Defendant: DAVID L. BROWN, ESQ., Special Assistant United States Attorney, OF COUNSEL, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Albany, New York.

OPINION

Christian F. Hummel, United States Magistrate Judge.

REPORT-RECOMMENDATION AND ORDER[1]

Plaintiff Brenton Burgen (" Burgen") brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Acting Commissioner of Social Security (" Commissioner") denying his application for benefits under the Social Security Act. Burgen moves for a finding of disability and the Commissioner cross-moves for a judgment on the pleadings. Dkt. Nos. 12, 13. For the reasons which follow, it is recommended that the Commissioner's decision be affirmed.

I. Background

A. Facts

Born on September 18, 1969, Burgen was thirty-nine years old on the alleged disability onset date. T. 23, 45, 178.[2] Burgen completed the ninth grade, but recently prior to his hearing received his high school diploma from BOCES. T. 45. Burgen's previous work experience included baking, driving taxi cabs, and working in warehouses for factories and manufacturing. T. 50-54, 216. Burgen alleges disability from headaches, polysubstance abuse, anxiety, panic attacks, depression, and posttraumatic stress disorder (" PTSD"). T. 26, 215.

B. Procedural History

On February 23, 2011, Burgen protectively filed a Title II application for disability and disability insurance benefits claiming an alleged onset date of January 12, 2009. T. 178-82. That application was denied on May 12, 2011. T. 85-95. Burgen requested a hearing before an administrative law judge (" ALJ") and a hearing was held before ALJ Elizabeth W. Koennecke on July 26, 2012. T. 40-66 (hearing transcript), 97-177. In a decision dated September 7, 2012, the ALJ held that Burgen was not entitled to disability benefits. T. 20-39. Burgen filed a timely request for review, and on January 15, 2014, the Appeals Council denied Burgen's request, thus making the ALJ's findings the final decision of the Commissioner. T. 1-6, 17-19. This action followed.

II. Discussion

A. Standard of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Berry, 675 F.2d at 467. Substantial evidence is " more than a mere scintilla, " meaning that in the record one can find " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal citations omitted)).

" In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Barringer v. Comm'r of Soc. Sec., 358 F.Supp.2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 USC § 405(g) (2006); Halloran, 362 F.3d at 31.

B. Determination of Disability[3]

" Every individual who is under a disability shall be entitled to a disability. . . benefit. . . ." 42 U.S.C. § 423(a)(1) (2004). Disability is defined as the " inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months." Id. § 423(d)(1)(A). A medically determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by " medically acceptable clinical and laboratory diagnostic techniques." Id. § 423(d)(3). Additionally, the severity of the impairment is " based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience." Ventura v. Barnhart, No. 04-CV-9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based upon 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a 'severe impairment' which significantly limits his [or her] 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 is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a 'listed' impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

C. ALJ Koennecke's Findings

Burgen, represented by an attorney, testified at the hearing held on July 26, 2012. T. 42-66 (transcript from the administrative hearing). Using the five-step disability sequential evaluation, the ALJ found that Burgen (1) had not engaged in substantial gainful activity since January 12, 2009, the alleged onset date; (2) had the following severe medically determinable impairments: post-traumatic stress disorder (variously characterized) and polysubstance abuse; (3) did not have an impairment, alone or in combination, sufficient to meet the listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404; (4) maintained

the residual functional capacity [(" RFC")] to perform a full range of work at all exertional levels . . . [as Burgen] retain[ed] the ability, on a sustained basis, to frequently understand, carry out, and remember simple instructions; to frequently respond appropriately to supervision, co-workers, and usual work situations; and to frequently deal with changes in a routine lower contact work setting[; ]

and thus, (5) remained capable of performing past relevant work as a warehouse worker.

D. Burgen's Contentions

Burgen contends that the ALJ erred in concluding that substantial evidence in the record supported a finding that Burgen retained sufficient residual functional capacity (RFC) to perform work. Specifically Burgen alleges that the ALJ did not properly evaluate the medical evidence or his credibility when determining his RFC, or correctly support Step 4 of the disability determination by concluding that vocational expert testimony was not required.

1. RFC

The ALJ determined that Burgen retained the RFC to perform work at all exertional levels with specific limitations. T. 30-34. RFC describes what a claimant is capable of doing despite his or her impairments considering all relevant evidence, which consists of physical limitations, symptoms, and other limitations beyond the symptoms. Martone v. Apfel, 70 F.Supp.2d 145, 150 (N.D.N.Y. 1999); 20 C.F.R. § § 404.1545, 416.945. " In assessing RFC, the ALJ's findings must specify the functions plaintiff is capable of performing; conclusory statements regarding plaintiff's capacities are not sufficient." Martone, 70 F.Supp.2d at 150. RFC is then used to determine whether the claimant can perform his or her past relevant work in the national economy. New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990); 20 C.F.R. § § 404.1545, 416.960 (2003). The Second Circuit has clarified that, in Step 5 of the Commissioner's analysis, once RFC ...


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