United States District Court, N.D. New York
SHAWN G. DILLINGHAM, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
EARL S. HINES, Magistrate Judge.
Shawn G. Dillingham ("Dillingham") seeks review of an adverse decision on his applications for disability insurance benefits and supplemental security income available under the Social Security Act. See 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3).
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).
Dillingham, born in 1956, has a ninth grade education. During tenth grade, he and his best friend were hitchhiking at night, when his friend was struck and killed by a car. Thereafter, Dillingham quit school. (T. 380).
Dillingham was involved in a heterosexual relationship for 19 years, and, as a result, has two, now-grown, children as well as grandchildren. (T. 380).
Dillingham was 48 years old when he applied for social security benefits. During a fifteen-year period prior to filing his application, he worked for a total of 11 years at several jobs as a manual laborer, usually in factories or warehouses. (T. 58). His longest term of employment was four years as an assembly line worker. ( Id. ). He stopped working in August 2004, when his temporary job ended. (T. 50).
Dillingham claims to be disabled due to "sleep disorder/depression, " commencing August 15, 2004. (T. 49-50). He filed two separate administrative actions, in each he sought supplemental security income and disability insurance benefits. The first (which gives rise to the current action) was filed on November 4, 2004. The second, filed on February 3, 2009, was granted in part. Dillingham was awarded disability-based benefits effective December 20, 2006. (T. 447).
Dillingham's partial success did not foreclose his claim for benefits from August 15, 2004, (dated of alleged onset of disability) through December 19, 2006.
Dillingham's application was assigned to ALJ John P. Ramos to adjudicate the period from August 15, 2004, to December 19, 2006. ALJ Ramos conducted a new evidentiary hearing (the third with respect to his first application, the fourth altogether) on August 2, 2012. Dillingham, represented by counsel, testified. The record also consisted of testimony and evidence presented in prior hearings. (T. 448).
ALJ Ramos issued a decision denying Dillingham's applications for the "closed period"- i.e., August 15, 2004 through December 19, 2006. (T. 447-58). The Appeals Council denied Dillingham's request to review. (T. 417-21). Dillingham then instituted this proceeding.
III. Commissioner's Decision
At Step 2 of sequential evaluation, ALJ Ramos found that Dillingham has severe impairments consisting of a back condition, anxiety disorder, and dysthmyic disorder. (T. 451). 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. 453). Dillingham proffers no complaints about these initial findings.
ALJ Ramos next found that, despite severe impairments, Dillingham retains physical capacity to perform work at the medium exertional level with certain nonexertional mental limitations described in the note below. (T. 453-54). When making this assessment, ALJ Ramos gave "minimal evidentiary weight" to opinions expressed by Dillingham's treating primary care physician regarding Dillingham's physical limitations and "no weight" to that physician's opinions regarding Dillingham's mental limitations. (T. 455-56). ALJ Ramos further found that Dillingham's subjective testimony regarding the intensity, persistence and limiting effects of his symptoms was "not fully credible." (T. 455).
Given the residual functional capacity described above, ALJ Ramos found that Dillingham cannot perform his past relevant work because it exceeds his current mental residual functional capacity. (T. 456). But, at Step 5, ALJ Ramos determined Dillingham can perform alternative work, and, therefore, is not disabled. When making this finding, ALJ Ramos relied on the "framework" of Medical-Vocational Rules 203.26 and 203.19,  and Social Security Ruling 85-15. (T. 457). He did not elicit testimony of an expert vocational witness in order to make his Step 5 determination.
IV. Points of Alleged Error
ALJ Ramos's credibility choices regarding medical opinions and subjective testimony, together with his reliance at Step 5 on Medical-Vocational Rules instead of expert vocational testimony give rise to this action for judicial review. Dillingham's brief proffers three points of error:
1. The ALJ erred in evaluating the opinion of Plaintiff's treating physician, Dr. Ahmed, thereby failing to support the residual functional capacity determination by substantial evidence;
2. The ALJ's Step 5 determination is unsupported by substantial evidence as he failed to obtain needed vocational testimony, despite the presence of significant non-exertional impairments; and
3. The ALJ's credibility findings are unsupported by substantial evidence because the ALJ erred in analyzing the required factors when assessing Plaintiff's credibility.
(Dkt. No. 15, p. 1). For analytical clarity and convenience, these points are analyzed and discussed in a different sequence than proffered in Dillingham's brief.
V. Residual Functional Capacity Issues (Points I & III)
Administrative law judges assess and articulate "residual functional capacity" before considering whether severely impaired persons can perform their prior relevant work (Step 4) or alternative available work (Step 5). 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. Thus, administrative law judges 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 continuing basis. See SSR 96-8p, TITLE II AND XVI: ASSESSING RESIDUAL FUNCTIONAL CAPACITY IN INITIAL CLAIMS, 61 Fed. Reg. 34474, 1996 WL 374184, at *4 (SSA July 2, 1996).
When assessing residual functional capacity, administrative law judges must consider "all of the relevant medical and other evidence." See 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). The Commissioner prescribes a multi-factor evaluative protocol for determining residual functional capacity.
In practice, administrative law judges rely principally on medical source opinion and on subjective testimony (typically to a lesser degree) when assessing an impaired individual's ability to engage in work-related activities. The Commissioner again prescribes multi-factor protocols for evaluating forensic medical opinions and subjective testimonies. ALJ Ramos's alleged failures to comply with these ...