United States District Court, N.D. New York
STEPHEN J. MASTAITIS, ESQ., for Plaintiff.
DAVID L. BROWN, Special Asst. U.S. Attorney, for Defendant
ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me for report and recommendation by the Honorable Thomas J. McAvoy, Senior United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.
I. PROCEDURAL HISTORY
On March 17, 2011, plaintiff filed an application for Social Security Disability Insurance Benefits ("DIB"), alleging disability, beginning May 19, 1993, due to bulging discs in his back, diabetes mellitus, loss of sight in his left eye, and diabetic neuropathy. (Administrative Transcript ("T.") 123-29, 151). Plaintiff's application was initially denied on June 16, 2011. (T. 71). Plaintiff requested a hearing which was held on May 8, 2012 before Administrative Law Judge ("ALJ") Mary Sparks. Plaintiff and a vocational expert ("VE") testified at the hearing. (T. 31-70). ALJ Sparks denied the application in a decision issued on July 20, 2012 (T. 11-25), which became the final decision of the Commissioner when the Appeals Council ("AC") denied plaintiff's request for review on October 24, 2013 (T. 1-6).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable 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 twelve months...." 42 U.S.C. § 1382c(a) (3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a "severe impairment" which significantly limits his 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 meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se] disabled.... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there is other work which the claimant could perform.
Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.
B. Scope 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 supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review "- even more so than the clearly erroneous standard.'" Brault, 683 F.3d at 448.
"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id . See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "pick and choose' evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
III. ISSUES IN CONTENTION
Plaintiff raises the following arguments:
(1) The ALJ failed to properly credit the opinion of plaintiff's treating physician. (Pl.'s Br. at 9-15) (Dkt. No. 16).
(2) The ALJ erred in failing to hold a supplemental hearing based on the VE's new information, and the AC erred in failing to remand for a supplemental hearing based on "new and material" evidence, submitted by Dr. John Ioia, M.D., Ph.D. (Pl.'s Br. at 15-16, 25-26).
(3) The ALJ erred in determining plaintiff's residual functional capacity ("RFC"). (Pl.'s Br. at 16-25).
(4) The ALJ failed to properly consider plaintiff's obesity.
Defendant argues that the Commissioner's decision is supported by substantial evidence. This court agrees, for the reasons set forth below, and recommends that the ALJ's decision be affirmed and the complaint dismissed.
Plaintiff's counsel has included a statement of facts in his brief, citing mostly to plaintiff's testimony at the hearing. (Pl.'s Br. at 2-8). Defense counsel has incorporated, into his brief, the ALJ's statement of facts, which discusses more of the medical evidence than the plaintiff's brief covers. (Def.'s Br. at 2, incorporating T. 13-25). The court will adopt the facts stated in plaintiff's brief, together with the facts as stated by the ALJ, with any exceptions as noted in the discussion below.
Complicating the consideration of this case is the fact that the relevant time period under consideration is from May 19, 1993 (when plaintiff alleges that his disability began) to June 30, 1996 (when plaintiff's insured status expired). There is no dispute that plaintiff must show that he was disabled on or before June 30, 1996. Plaintiff's subsequent condition is not relevant, ...