United States District Court, S.D. New York
ANTHONY D. CROTHERS, Plaintiff,
ACTING CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Social Security Administration, Defendant.
REPORT AND RECOMMENDATION
KEVIN NATHANIEL FOX, Magistrate Judge.
TO THE HONORABLE VALERIE E. CAPRONI, UNITED STATES DISTRICT JUDGE
Anthony D. Crothers ("Crothers") commenced this action against the Commissioner of Social Security ("Commissioner"), seeking review of an administrative law judge's ("ALJ") decision, dated October 26, 2011, finding him ineligible for disability insurance benefits ("DIB"), pursuant to Title II of the Social Security Act ("SSA"), 42 U.S.C. §§ 401-434, and Supplemental Security Income ("SSI") benefits, pursuant to SSA Title XVI, 42 U.S.C. §§ 1381-1385. Before the Court are the parties' respective motions for judgment on the pleadings, made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The plaintiff seeks an order: (1) reversing the Commissioner's final decision with remand for additional administrative proceedings, "including but not limited to, a supplemental administrative hearing and a new decision"; and (2) "[a]pproving the contingent fee agreement between plaintiff and [his] counsel under 42 U.S.C. § 406(b) and awarding plaintiff reasonable attorney's fees pursuant to the Equal Access to Justice Act [EAJA'], 28 U.S.C. § 2412(d)." The defendant seeks an order affirming the finding that the plaintiff is ineligible for benefits.
Administrative Procedural History
Crothers filed his DIB application on July 6, 2010, and his SSI application on July 9, 2010, alleging he became disabled beginning January 1, 2006. On July 20, 2011, an administrative hearing was postponed to allow Crothers time to obtain an attorney. On October 6, 2011, the ALJ conducted a hearing, at which Crothers testified without counsel. On October 26, 2011, the ALJ denied Crothers's applications. On May 20, 2013, the Appeals Council denied review of the ALJ's decision, rendering it the final decision of the Commissioner. This action followed.
The issue before the ALJ was whether Crothers was disabled from January 1, 2006. The ALJ found that Crothers: (1) meets SSA's insured status requirements, through September 30, 2009; (2) has not engaged in substantial gainful activity, since January 1, 2006; (3) has severe impairments: depression, posttraumatic stress disorder, hypertension, history of sleep apnea and history of bronchitis, and these impairments cause more than minimal functional limitations; (4) does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1; (5) has the residual functional capacity to perform light work, except he cannot perform fast-paced production work or tasks requiring more than 2 to 3-step instructions, can interact occasionally with supervisors, coworkers and the public and should avoid excessive smoke, dust and other known respiratory irritants; (6) has no past relevant work; (7) was born in 1965; (8) has at least a high school education and is able to communicate in English; and (9) does not have past relevant work and transferability of job skills is not an issue. Moreover, the ALJ concluded that, considering Crothers's age, education, work experience and residual functional capacity, jobs exist in significant numbers in the national economy that he can perform, and he has not been under disability, from January 1, 2006.
In determining whether Crothers has an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments, the ALJ found that Crothers had mild restrictions in activities of daily living and moderate difficulties in social functioning. Crothers experienced no episodes of decompensation of extended duration. The ALJ found that Crothers can wash dishes, wash clothes, sweep and mop the floor, vacuum, make beds, shop for groceries, cook meals, dress and groom himself. The ALJ noted that Dr. Christopher Flach ("Dr. Flach") found in a consultative psychological evaluation that Crothers: (i) was able to follow and understand simple directions and instructions; (ii) could perform simple tasks independently; (iii) had mild problems maintaining attention and concentration; (iv) was able to maintain a regular schedule; (v) was learning new tasks and performed complex tasks independently; and (vi) seemed to make appropriate decisions, although he had mild problems relating to others and dealing with stress. According to Dr. Flach, the results of his examination of Crothers appeared consistent with psychiatric problems, which by themselves do not seem to interfere significantly with Crothers's ability to function on a daily basis. Thus, the ALJ concluded that Crothers's mental impairments do not cause at least two marked limitations or one marked limitation and repeated episodes of decompensation, each of extended duration.
The ALJ found that no medical documented history exists of a chronic mental disorder of at least two years in duration, and no evidence exists of repeated episodes of decompensation or a residual disease process that has resulted in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause Crothers to decompensate. Moreover, no evidence exists that Crothers cannot live outside a highly supportive living arrangement or function independently outside his home.
The ALJ assessed Crothers's residual functional capacity to perform work. He noted that Crothers testified at the hearing that he graduated from high school and was in special education classes. Crothers had problems with "big" words in the newspapers. He is divorced, has six children and lived with his sister. He was incarcerated from 1996 to 1997, and from 2006 to 2009, for assault. Crothers testified that he was taking anger management classes. He admitted that he had no physical limitations and was able to take care of his hygiene. Crothers used to work for a moving company and would do that again if he had a job. He suffered from sleep apnea. Crothers arrived at the hearing via the subway, but he does not like being in a crowded subway.
The ALJ noted that Crothers received treatment and services from the Federation Employment Guidance Service ("FEGS"). On March 29, 2010, a FEGS social worker gave Crothers a Patient Health Questionnaire PHQ-9 score of 23, severe depression. In a FEGS psychiatric assessment, completed in March 2010, it was noted that Crothers had mild functional impairment in his ability to follow work rules and moderate functional impairment accepting supervision, dealing with the public, maintaining attention, relating to coworkers, adapting to change and stressful situations. Crothers was diagnosed with impulse control disorder and posttraumatic stress disorder, and was found disabled from work temporarily, likely to return to full-time work, with treatment, in three months.
In November 2009, Crothers was mandated by parole to Greenwich House for treatment of cannabis abuse and to attend anger management classes. Psychiatric nurse practitioner, Meredith Conroy, noted in a letter, dated June 30, 2010, that Crothers had been a client at Greenwich House's Chemical Dependency Program, since November 2009, where he received substance abuse counseling, attended anger management classes and obtained psychiatric services. She noted that Crothers was diagnosed with major depression, single episode, moderate, anxiety disorder not otherwise specified and antisocial personality disorder. Crothers reported, in an assessment, dated June 16, 2010, that he felt much better and was sleeping well. He also tested positive for cocaine, but denied using it, alleging his hand came into contact with it.
On July 30, 2010, Dr. Barbara Ballen ("Dr. Ballen") conducted a consultative physical examination of Crothers. Dr. Ballen diagnosed Crothers with sleep apnea, hypertension and bronchitis. On the same day, Dr. Flach found that Crothers was able to follow and understand simple directions and instructions, could perform simple tasks independently, had mild problems maintaining attention and concentration, was able to maintain a regular schedule, was learning new tasks and performed complex tasks independently and seemed to make appropriate decisions and have mild problems relating to others and dealing with stress.
The ALJ explained that he gave fairly considerable weight to the consultative examiners' reports because they gave Crothers thorough examinations and their findings were consistent with other evidence in the record. The ALJ found that Crothers's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but Crothers's statements concerning the intensity, persistence and limiting effects of his symptoms were not credible, to the extent that they were inconsistent with the residual functional capacity assessment. The ALJ also noted that he gave minimal weight to the State agency psychological consultant's mental assessment, since that consultant was non-examining. The ALJ concluded that his residual functional capacity assessment is supported by the credible evidence and he noted that he was mindful of Crothers's physical impairments, for which he accounted for, by reducing his residual functional capacity to light work, avoiding excessive smoke, dust and other respiratory irritants. Additionally, the ALJ also considered Crothers's emotional problems and determined that Crothers cannot perform fast-paced production work or tasks requiring more than two to three-step instructions and he can occasionally interact with supervisors, coworkers and the public.
In determining whether a successful adjustment to other work can be made, the ALJ considered Crothers's age, education and work experience. Finding that the additional limitations had little or no effect on the occupational base of ...