United States District Court, S.D. New York
For Sophia Johnston, Plaintiff: Charles E Binder, Binder and Binder P.C., New York, NY.
For Acting Commissioner Carolyn W. Colvin of Social Security, Defendant: John E. Gura, Jr, LEAD ATTORNEY, U.S. Attorney's Office, S.D.N.Y. (86 Chambers St.), New York, NY; David Stuart Jones, U.S. Attorney's Office, S.D.N.Y. (86 Chambers St.), New York, NY.
REPORT AND RECOMMENDATION TO THE HONORABLE VALERIE E. CAPRONI
FRANK MAAS, United States Magistrate Judge.
Plaintiff Sophia Johnston (" Johnston") brings this action pursuant to Section 205(g) of the Social Security Act (" Act"), as amended, 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security (" Commissioner") denying her application for Social Security Disability benefits (" SSD"). The parties have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, I recommend that Johnston's motion (ECF No. 14) be denied, and the Commissioner's cross-motion (ECF No. 27) be granted.
A detailed recitation of the non-medical and medical evidence may be found in the parties' motion papers. (ECF No. 15 (" Pl.'s Mcm."); ECF No. 28 (" Def.'s Mem.")). In brief, that evidence reflects that Johnston was born in 1963. (R. 38). At age nine, she was diagnosed with acute lymphoblastic leukemia, and, in 1984, at age twenty-one, she had a relapse and a stroke that resulted in total right hemiplegia. (Id. at 51;
see also id. at 421, 579). Johnston also suffers from hypothyroidism, and had fractured her left hip as a child. (See, e.g., id. at 468, 470). With physical therapy, she was able to earn a bachelor's degree in nursing and science, and to work as a pediatric home care nurse until she had a high-risk pregnancy in 2000. (Id. at 40, 42, 421). After giving birth to triplets, Johnston did not work again until 2006. (Id. at 42, 272). Then, she began working on a substitute basis as a school nurse. She worked approximately one to three days each month until she suffered a fractured wrist during a fall in 2011. (Id. at 41-43, 417, 513-26).
Johnston alleges that she became disabled on January 1, 2006, and is limited in her ability to work due to chronic pain, bad balance, and deterioration and arthritis in her left hip, a meniscal tear in her right knee, " weakness in the right side, " and leg, lower back, and neck pain. (Id. at 42, 45-46). Despite these difficulties, she often would walk for fifteen to twenty minutes at a time, and was the principal caregiver for her children. (Id. at 46-47).
On January 5, 2012, Johnston filed an application for SSD, in which she alleged that she was disabled as of January 1, 2006. (Id. at 123-24). After her application was denied initially on May 2, 2012, (id. at 73-80), Johnston requested a hearing before an Administrative Law Judge (" ALJ"). (Id. at 82). On October 23, 2012, Johnston and her attorney appeared before ALJ Dale Black-Pennington for that hearing. (Id. at 33-64). On November 5, 2012, the ALJ found that Johnston was not disabled. (Id. at 19-31). The ALJ's decision became the final decision of the Commissioner, when, on March 8, 2013, the Appeals Council affirmed his decision. (Id. at 1-7). Johnston then filed this action on April 24, 2013. (ECF No. 1).
II. Standard of Review
Under Rule 12(c), judgment on the pleadings is appropriate when the material facts are undisputed and a party is entitled to judgment as a matter of law based on the contents of the pleadings.
See, e.g., Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 213-14 (S.D.N.Y. 1999).
The Act, in turn, provides that " [t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g);
see Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term " substantial" does not require that the evidence be overwhelming, but it must be " more than a mere scintilla. It means 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, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)).
A district court is not permitted to review the Commissioner's decision de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Rather, the court's inquiry is limited to ensuring that the Commissioner applied the correct legal standard and that his decision is supported by substantial evidence.
See Hickson v. Astrue, No. 09 Civ. 2049 (DLI) (JMA), 2011 WL 1099484, at *2 (E.D.N.Y. Mar. 22, 2011). When the Commissioner's determination is supported by substantial evidence, the decision must be upheld, " even if there also is substantial evidence for the plaintiff's position." Morillo v. Apfel, 150 F.Supp.2d 540, 545 (S.D.N.Y. 2001).
III. Disability Determination
The term " disability" is defined in the Act as the " 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). " [W]hether a claimant is disabled or unable to work is a matter reserved for the Commissioner."
Rodriguez v. Astrue, No. 02 Civ. 1488 (BSJ) (FM), 2009 WL 1619637, at *16 (S.D.N.Y. May 15, 2009) (citing 20 C.F.R. § 404.1527). In determining whether a claimant is disabled, the Commissioner is required to apply the five-step sequential process set forth in 20 C.F.R. § § 404.1520 and 416.920.
The Second Circuit has described this familiar process as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If [s]he is not, the [Commissioner] next considers whether the claimant has a " severe impairment" which significantly limits h[er] 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 h[er] disabled without considering vocational factors such as age, education, and work experience. . . . Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, [s]he has the residual functional capacity to perform h[er] past work. Finally, if the claimant is unable to perform h[er] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.
Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); accord Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). The claimant bears the burden of proof with respect to the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the claimant sustains their burden at each of these steps, then the burden shifts to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).
In assessing whether a claimant has a disability, the factors to be considered include: " (1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or other[s]; and (4) the claimant's educational background, age, and work experience." Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980). When reviewing the medical evidence, the ALJ has the authority to select among conflicting opinions.
Veino, 312 F.3d at 588; see also Richardson, 402 U.S. at 399. Thus, if there are genuine conflicts within the evidence, their resolution ...