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Kelsey v. Colvin

United States District Court, N.D. New York

January 23, 2015

NIKKIA J. KELSEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION

EARL S. HINES, Magistrate Judge.

Nikkia J. Kelsey ("Kelsey") seeks review of an adverse decision on her 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").

II. Background

Kelsey obtained an educational GED certificate.[1] Thereafter, she worked as a cashier, nurse's aide, and door-to-door salesperson. (T. 46, 210). In April 2009, at age 33, when leaving a residence after a sales call, she slipped backwards on stairs and grabbed a railing with her right arm. (T. 327). She did not fall, but her body twisted, immediately causing left shoulder, neck, upper and lumbar back pain. ( Id. ).

Kelsey pursued a state worker's compensation claim for on-the-job injuries. In September, 2009, she also applied for social security disability insurance benefits and supplemental security income, [2] alleging that she became unable to work as of April 6, 2009, due to "depression, stomach tumor, herniated disc in neck, nerve damage left arm & torn left rotator cuff, carpal tunnel right wrist, and extreme anemia." (T. 194).

Kelsey's claim was assigned to administrative law judge, Bruce S. Fein ("ALJ Fein"), who conducted an evidentiary hearing. (T. 37-90). Kelsey, represented by legal counsel, attended and testified. ( Id. ). ALJ Fein denied Kelsey's applications in a written decision dated February 2, 2012. (T. 20-31).

The Appeals Council denied Kelsey's request for review. (T. 2-7). Kelsey then instituted this proceeding.

III. Decision[3]

ALJ Fein first found that Kelsey met the insured-status requirements of the disability insurance benefits program at all relevant times.[4] (T. 22). Next, he found that Kelsey has severe physical and mental impairments. Her severe physical impairments included borderline left carpal tunnel syndrome, mild left cubital tunnel syndrome, left shoulder adhesive capsulitis post decompression and distal clavicle excision. (T. 23). Her severe mental impairment was depression. ( Id. ).

ALJ Fein found that Kelsey's physical impairments reduce her work capacity such that she can now perform work only at the sedentary exertional level. (T. 25). That capacity is further reduced by a nonexertional postural impediment consisting of limited ability to push and/or pull with the left upper extremity. Her nonexertional mental impairment allows her to tolerate only low stress and perform only simple tasks and instructions. (T. 25).

With this reduced residual functional capacity, ALJ Fein found that Kelsey can no longer perform her past relevant work as a salesperson (light exertional) or nursing assistant (medium exertional). (T. 29). ALJ Fein further found, however, that Kelsey can perform alternative, available work despite her impairments. ALJ Fein relied on Medical-Vocational Guidelines, Section 201.28[5] and Social Security Ruling 96-9p[6] to make this finding (T. 29-30). Thus, Kelsey's application was denied. (T. 31).

IV. Points of Alleged Error

Kelsey's brief presents three points of error (with subparts), as follows:

1. The ALJ's RFC determination is not supported by substantial evidence:
A. The ALJ improperly discounted the opinion from treating surgeon, Dr. Cooke;
B. The ALJ improperly discounted the opinion from consultative examiner, Dr. Ross;
C. The ALJ's RFC determination is not consistent with his evaluation of the opinions from Drs. Carr, Wolf, and Setter;
D. The ALJ's RFC determination is not consistent with his evaluation of the opinion provided by Dr. Croyle;
2. The ALJ erred in failing to make a proper credibility finding; and
3. The ALJ's Step 5 finding is not supported by substantial evidence. (Dkt. No. 10, p. 1).

After considering Kelsey's arguments and the Commissioner's responses thereto on all points, the court concludes, for reasons that follow, that Kelsey's points of error I.A and I.C must be sustained.

V. Residual Functional Capacity

Points of error I.A and I.C both implicate ALJ Fein's finding of Kelsey's "residual functional capacity." As a threshold matter, therefore, it is appropriate to define "residual functional capacity" and delineate how it is determined.

A. Residual Functional Capacity

Administrative law judges assess and articulate claimants "residual functional capacity" before considering whether severely impaired persons can perform their prior relevant work or alternative available work. This term of art refers to what claimants can still do in work settings despite physical and/or mental limitations caused by their impairments and any related symptoms, such as pain. See 20 C.F.R. §§ 404.1545, 416.945. Administrative law judges thus decide whether applicants, notwithstanding their severe impairments, have physical and mental abilities to perform activities generally required by competitive, remunerative work on a regular and ...


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