United States District Court, N.D. New York
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
Edward Noble ("Noble") seeks review of an adverse decision on his applications under the Social Security Act for disability insurance and supplemental security income 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). Courts cannot retry factual issues de novo or substitute their interpretations of administrative records for that of the Commissioner when substantial evidence supports the decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). Neither can they overturn administrative rulings because they would have reached a different conclusion had the matter come before them in the first instance. See Campbell v. Astrue, 465 Fed.App'x 4, 5 (2d Cir. 2012) (summary order).
Noble, born in 1955, has a history of depression, suicidal ideation and schizophrenia dating back to his early teens. (T. 458-59). At age 16, Noble abused alcohol, marijuana, prescription and non-prescription compounds ( e.g., "reds, " "black beauties, " "downers, " and "speed"), and LSD. (T. 458). Between the early-1970's until close to 1980, Noble was in and out of a psychiatric hospital, St. Lawrence Psychiatric Center. ( Id. ). After several relapses, he reached and has maintained sobriety for 20 years. ( Id. ). Since 1992, Noble has received counseling and medication management for depression at the Mental Health Clinic at St. Lawrence County Community Services. (T. 459, 556).
Noble's work history began with general labor on a family dairy farm. (T. 460). He also worked in various positions at a supermarket and at a veterinary clinic cleaning cages. ( Id. ). In 1998, he began work at the Board Of Cooperative Educational Services ("BOCES") as a teaching assistant and job coach. ( Id. ). In September, 2006, at age 51, while employed at BOCES but helping out at the family farm, Noble had a left-sided cerebrovascular accident ("CVA" or stroke). (T. 413, 432). He experienced slurred speech, right side facial droop, as well as right upper extremity paresis. (T. 403). Thereafter, he received rehabilitation services (physical, occupational, and speech therapy) to address activities of daily living, independent activities, and activity reintegration. (T. 403-04). In late-November, 2006, he returned to work. (T. 414). After returning, his job performance declined in 2007-08. (T. 461). He stopped working in June, 2008. (T. 297)
Noble applied for disability insurance benefits and supplemental security income due to "depression, stroke, and high cholesterol, " commencing June 25, 2008. (T. 297). His height was listed at 5'8", and he weighed 245 pounds. (T. 296). In June, 2010, an evidentiary hearing was held before an administrative law judge, John P. Ramos ("ALJ Ramos"). (T. 30, 48-71). ALJ Ramos denied Noble's claims for benefits, and Noble sought review with the Appeals Council. (T. 30, 124-34, 186-194).
By order of the Appeals Council, dated May, 2011, ALJ Ramos's decision was vacated and remanded for further review. (T. 140-42). The Appeals Council directed than an administrative law judge further evaluate the severity of Noble's obesity, and assess the effect it has on his ability to perform work-related activities. It also directed further consideration of Nobel's maximum residual functional capacity and receipt of evidence from a vocational expert to clarify the effect of Noble's assessed limitations on his occupational base. (T. 140-41).
Upon remand, the matter was reassigned to ALJ Ramos who held new hearings in July, 2011 and March, 2012. (T. 72-102, 103-118). Noble and his legal counsel appeared at both. ( Id. ). Marla Neiderer (Noble's supervisor at his last job) and Patricia Noble (Noble's wife) testified at the July, 2011 hearing. (T. 78-89, 89-101). A vocational expert witness, Donald L. Schader, BA, MS ("VE Schader") testified at the March hearing. (T. 107-17, 227-28).
ALJ Ramos issued a new decision again denying Noble's applications on April 12, 2012. (T. 30-41). The Appeals Council denied Noble's request to review. (T. 1-7). Noble then instituted this proceeding.
III. Commissioner's Decision
At Step 2 of sequential evaluation, ALJ Ramos found that Noble has severe impairments of status post cerebrovascular accident with cognitive deficit and mild speech impediment, sleep apnea, and depression. At Step 3, he found that none of these impairments are so severe as to be presumptively disabling under 20 C.F.R. Pt. 404, Subpt. P, App'x 1 (the "Listings"). (T. 33-34).
ALJ Ramos next addressed Noble's "residual functional capacity." He found that, despite his severe impairments, Noble retains physical capacity to perform work at the medium exertional level with certain nonexertional limitations described in the note below. (T. 34-35).
At Step 4 of sequential evaluation, ALJ Ramos found that, Noble cannot perform his past relevant work as it exceeds his current mental residual functional capacity. (T. 39, 111). Next (at Step 5), ALJ Ramos found that a person with Noble's residual functional capacity can perform alternative work as a kitchen helper, dining room attendant, and a "cleaner II." (T. 40). When making this finding, ALJ Ramos relied on VE Schader's testimony. Finally, ALJ Ramos determined that Noble is not disabled under the framework of Medical-Vocational Rule 203.22 and 203.15. (T. 40, 111-12). Therefore, Noble's applications were denied. (T. 40).
IV. Points of Alleged Error
Noble's brief proffers three points of error:
1. The Commissioner failed to find Plaintiff's impairment or combination of impairments meet or medically equal the severity of Listings 12.02 and 12.04;
2. The Commissioner failed [to] properly follow the treating physician rule; and
3. The Commissioner failed to properly assess Plaintiff's residual function capacity.
(Dkt. No. 14, p. 3). Point 1 argues that ALJ Ramos erred when failing to find Noble presumptively disabled at Step 3 of sequential evaluation. Points 2 and 3 argue that ALJ Ramos erred in various ways when establishing Noble's residual functional capacity.
V. Alleged Step 3 Error (Point 1)
When administrative adjudicators determine (at Step 2) that claimants have severe impairments, they next decide (at Step 3) whether those impairments are disabling under 20 C.F.R. Pt. 404, Subpt. P, App'x 1 (the "Listings"). The Commissioner has published in the Listings a series of impairments describing a variety of physical and mental conditions, indexed according to the body system affected. Listed impairments are presumptively disabling. See 20 C.F.R. §§ 404.1520(a)(4)(iii), (d), 416.920(a)(4)(iii), (d).
A "special technique, " sometimes referred to as a "psychiatric review technique" set out in 20 C.F.R. §§ 404.1520a(b)-(e), 416.920a(b)-(e) applies when mental impairments are at issue. See Petrie v. Astrue, 412 Fed.App'x 401, 403 (2d Cir. 2011) (summary order); see also Kohler v. Astrue, 546 F.3d 260, 265-66 (2d Cir. 2008) (describing analysis). This complex and abstruse technique helps administrative law judges determine whether claimants have medically-determinable mental impairments (by applying what commonly is called "A criteria"). It also enables administrative law judges to determine whether medically-determinable mental impairments are severe (a Step 2 issue) and whether they meet or are equivalent in severity to any presumptively disabling mental disorder (a Step 3 issue).
Administrative law judges make these latter findings by applying what commonly is called "B criteria" which relate to four functional areas: (1) "[a]ctivities of daily living;" (2) "social functioning;" (3) "concentration, persistence, or pace;" and (4) "episodes of decompensation." 20 C.F.R. §§ 404.1520a(c)(3), 416.920a(c)(3). For the first three areas, administrative judges provide ratings of "[n]one, mild, moderate, marked, [or] extreme." Id., at §§ 404.1520a(c)(4), 416.920a(c)(4). For the fourth category (episodes of decompensation) administrative judges provides ratings on a five-point scale: "[n]one, one or two, three, four or more." Id.  In order to meet "B criteria, " claimants' mental impairments must cause at least (a) two "marked" or "extreme" limitations (in the first three functional areas) or (b) one "marked" or "extreme" limitation (in the first three functional areas) and "repeated" episodes-of-decompensation (in the fourth functional area). See 20 C.F.R. pt. 404, Subpt. P, App'x 1, §§ 12.02(B), 12.04(B).
ALJ Ramos compared Noble's mental impairments (cognitive disorder and depression), to Listings 12.02 ("Organic Mental Disorders") and 12.04 ("Affective Disorders"). With respect to "B criteria, " ALJ Ramos found that Noble has only mild limitations in activities of daily living, mild restrictions in social functioning, moderate difficulties with regard to concentration, persistence or pace, and no episodes of decompensation. (T. 34). Accordingly, ALJ Ramos found (at Step 3) that Noble's mental impairments do not meet or medically equal the severity of either of the mental-impairment Listings at issue.
B. Noble's Challenge
Noble submits that ALJ Ramos erred at Step 3 because clinical and treatment records satisfy each and every necessary element of Listings 12.02(A) and (B) and 12.04(A) and (B). (Dkt. No. 14, pp. 13-17). Noble's brief devotes considerable space to a discussion of the evidence supporting a finding that he satisfies "A criteria" for a medically-determinable mental impairment, but, since that is not in dispute, his primary argument ultimately focuses on "B criteria."
In that regard, Noble argues that ALJ Ramos should have found marked limitations in the areas of social functioning and maintaining concentration, persistence, or pace. ( Id., p. 16). With respect to maintaining concentration, persistence and pace, Noble points to his wife's testimony that he only performs certain tasks with her guidance, and that he has to write everything down. (T. 93-94). He also cites testimony from his former supervisor at BOCES that Noble was unable to perform simple math ( e.g., calculate mileage), and needed reminders to follow through on things. (T. 81, 83). Lastly, Noble notes that Daniel Jenack, RPA-C ("PA Jenack") noted marked limitations in Noble's ability to understand and remember simple or complex instructions, ability to make judgments on simple and complex work-related decisions, and extreme limitations in his ability to carry out complex instructions, and that Antoine Gabriel, M.D., also checked "marked" limitations in this area. (T. 15, 574-75).
With respect to social functioning, Noble contends that ALJ Ramos "overlooks and diminishes" his cognitive limitations in engaging in social behavior. (Dkt. No. 14, p. 16). Noble cites an entry by PA Jenack in a September, 2010 medical report, stating that while Noble is generally pleasant with others, he has become reclusive and avoids social settings due to his insecurity about his anxiety and ability to communicate. (T. 575). He further cites to an entry in May, 2008 by his primary care physician noting that Noble felt embarrassed about his speech. (T. 409). His wife testified that when she tries to correct Noble's memory, he gets frustrated and retreats. (T. 96). Noble testified that although he still attends church, he is unable to be head usher, lead the prayer team, or visit "shut-ins" because he gets easily distracted and cannot follow instructions. (T. 58-60). Finally, Noble notes that Dr. Gabriel assessed him with "marked" limitations in this area. (T. 15).
Noble's arguments are misdirected. Even if there were evidence from which ALJ Ramos could have found marked limitations in two functional areas, the governing circuit court of appeals recently explained that "whether there is substantial evidence supporting the [claimant]'s view is not the question." Bonet ex rel. T.B. v. Colvin, 532 Fed.App'x 58, 59 (2d Cir. 2013) (summary order). Rather, the court "must decide whether substantial evidence supports the ALJ's decision. " Id. (emphasis in original).
"Substantial Evidence" is a term of art meaning less than a "preponderance" (usual standard in civil cases), but "more than a mere scintilla, " or "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Richardson v. Perales, 402 U.S. 378, 401 (1978); Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009); Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir.2004). To be "substantial, " evidence need only be "enough to justify, if the trial were submitted to a jury, a refusal to direct a verdict when the conclusion sought to be drawn from it is one of fact for the jury." National Labor Relations Bd. v. Columbian Enameling & Stamping Co., 306 U.S. 262, 299-300 (1939) (cited in Harvey L. McCormick, Social Security Claims and Procedures § 672 (4th ed. 1991)). Given this, Noble's irregular approach, i.e., emphasizing evidence supporting her claim, can succeed only if there is no contrary evidence a reasonable mind might accept as adequate to establish factual findings made by ALJ Ramos.
1. Social Functioning
ALJ Ramos determined that Noble has only mild difficulties in social functioning, noting that he stated he attends church twice a week and considered the idea of preaching. (T. 34, 512). Additionally, he reported no ...