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Dumas v. Commissioner of Social Security

United States District Court, N.D. New York

March 19, 2015

BONNIE S. DUMAS, Plaintiff,

CONBOY, McKAY, BACHMAN & KENDALL, LLP LAWRENCE D. HASSELER, ESQ., Carthage, New York, Counsel for Plaintiff.

HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, SERGEI ADEN, ESQ., Special Assistant United States Attorney, Albany, New York, Counsel for Defendant.

OFFICE OF GENERAL COUNSEL Social Security Administration STEPHEN P. CONTE, ESQ., Chief Counsel, Region II New York, New York,



This matter was referred to the undersigned for report and recommendation by the Honorable Glenn T. Suddaby, United States District Judge, pursuant to 28 U.S.C. § 636(b) (2013) and Northern District of New York Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, the Court recommends that this case be remanded for further administrative proceedings.


Plaintiff is presently fifty-five years old with a birth date of March 22, 1959. (Administrative Transcript at 38.)[1] Plaintiff completed high school and did not attend college. (T. at 39.) Plaintiff has never had a driver's license. (T. at 39.) Plaintiff's last employment was in June of 2009. (T. at 40.) She worked as a dishwasher and then line cook at a casino in Ogdensburg, New York for four years. (T. at 40.) Plaintiff's employment at the casino was terminated by her employer after she made a comment that offended someone who had overheard it. (T. at 41, 55.) Before working at the casino, Plaintiff was employed for fifteen years as a plastics assembler. (T. at 41.) The job ended when the business closed. (T. at 41-42.) Plaintiff alleges disability due to colitis; arthritis in both shoulders, left hip and left knee; pain in her lower back from bone spurs on her lower spine; neck pain; leg and balance problems; and mental health related problems. (T. at 42-46.)

Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on July 17, 2009, alleging disability as of June 26, 2009. (T. at 138-141, 145-148.) Both applications were initially denied on December 15, 2009. (T. at 65-70.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on January 5, 2010. (T. at 74.) The hearing was held before ALJ Ramos on July 6, 2011. (T. at 34.) ALJ Ramos denied the application in a decision dated July 21, 2011. (T. at 19-28.) Plaintiff's last date insured, based upon her earnings record, is December 31, 2013. (T. 21.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on July 22, 2013. (T. at 1-4.) Plaintiff commenced this timely action in the United States District Court for the Northern District of New York on September 6, 2013. (Dkt. No. 1.)


A. Standard for Benefits

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) (2006). 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.

§ 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2013). Under that five-step sequential evaluation process, the decision-maker determines:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.

McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014.) "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id. (quoting Perez, 77 F.3d at 46).

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 supports the decision. Featherly v. Astrue, 793 F.Supp.2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson, 817 F.2d at 986.

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g) (2012); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision. Roat v. Barnhart, 717 F.Supp.2d 241, 248 (N.D.N.Y. 2010)[2]; Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be "more than a mere scintilla" of evidence scattered throughout the administrative record. Featherly, 793 F.Supp.2d at 630; Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). "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, 859 F.2d at 258 (citations omitted). If supported by substantial evidence, the ALJ's findings must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [ALJ's]." Rosado, 805 F.Supp. at 153. However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).


The ALJ found at step one that Plaintiff had not engaged in substantial gainful activity since June 26, 2009. (T. at 21.) At step two, the ALJ found that Plaintiff had severe impairments consisting of depressive disorder, social phobia, COPD, colitis, mild degenerative joint disease of the left hip, left knee, and right shoulder, and thoracic scoliosis. Id. He then found at step three that Plaintiff's impairments did not meet or medically equal the severity of listed impairments 1.02 (Major dysfunction of a joint(s)), 1.04 (Disorders of the Spine), 3.02 (Chronic pulmonary insufficiency), 5.06 (Inflammatory bowel disease), 12.04 (Affective Disorders), and 12.06 (Anxiety Related Disorders) in 20 C.F.R. Part 404, Subpart P, Appendix 1 ("Appendix 1"). (T. at 23.)

Prior to proceeding to step four, the ALJ assessed Plaintiff's residual functional capacity ("RFC") and concluded that she retained the ability to "occasionally lift/carry 20 pounds and frequently 10 pounds, sit for 6 hours in an 8-hour workday, stand/walk for 6 hours in an 8-hour workday and can occasionally engage in postural activities." (T. at 24.) Additionally, the ALJ found Plaintiff "should avoid concentrated exposure to respiratory irritants and have access to bathroom facilities as needed." Id. He found that Plaintiff "retains the ability to understand and follow simple instructions and directions; perform simple tasks with supervision and independently; maintain attention/concentration for tasks; regularly attend to a routine and maintain a schedule; relate to and interact appropriately with others, but should have limited contact with supervisors, coworkers, or the public[;] and can handle reasonable levels of stress associated with simple work." Id.

At step four of the five-step analysis, the ALJ found that Plaintiff was not disabled because she was able to perform her previous relevant work as a dishwasher as performed by her. (T. at 27.)


Plaintiff claims that the ALJ erred by (1) failing to determine that Plaintiff's mood disorder is of listing-level severity; (2) failing to lend proper weight to the opinion of Plaintiff's treating physicians; (3) failing to follow the special technique required for assessing a mental disorder; (4) failing to follow the required procedure in assessing Plaintiff's RFC; (5) failing to properly assess Plaintiff's subjective allegations of pain and disabling symptoms; and (6) concluding that Plaintiff could return to her past relevant work. (Dkt. No. 10.)

Defendant contends that the ALJ's decision applied the correct legal standards and is supported by substantial evidence, and thus should be affirmed. (Dkt. No. 11.)


A. ALJ's Step Three Assessment of Plaintiff's Mood Disorder

Plaintiff does not dispute the ALJ's step two identification of her severe impairments on this appeal. (T. at 22.) She does argue that the ALJ erred in his step three finding that her mood disorder (depressive disorder) does not meet or medically equal Listing 12.04 in the listed impairments in Appendix 1. (Dkt. No. 10 at 13-16.)

The inquiry at step three is whether, based solely on medical evidence, the claimant has an impairment noted in the Listings in Appendix 1. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii). If the claimant has one of the listed impairments, the Secretary will consider the claimant disabled without looking at vocational factors, and the claimant will automatically be entitled to benefits. Id. §§ 404.1520(d), 416.920(d). The Secretary presumes that someone with a listed impairment is unable to perform substantial gainful activity. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).

"Under the regulations, the ALJ's determination as to whether the claimant's impairment meets or equals the Listings must reflect a comparison of the symptoms, signs, and laboratory findings about the impairment, as shown in the medical evidence, with the medical criteria as shown with the listed impairment." Kuleszo v. Barnhart, 232 F.Supp.2d 44, 52 (W.D.N.Y. 2002) (citing 20 C.F.R. § 404.1526). However, the burden is on the claimant to present medical findings that show his or her impairments match a listing or are equal in severity to a listed impairment. If a claimant's impairment manifests only some of the criteria in the listing, no matter how severely, the impairment does not qualify. Sullivan v. Zebley, 493 U.S. 521, 530 (1990).

In cases in which the disability claim is premised upon one or more listed impairments of Appendix 1, "the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment." Berry, 675 F.2d at 469. While a court may be able "to look to other portions of the ALJ's decision" and to "credible evidence in finding that his determination was supported by substantial evidence, " the Second Circuit has noted that "[c]ases may arise, however, in which we would be unable to fathom the ALJ's rationale in relation to evidence in the record.... In such instances, we would not hesitate to remand the case for further findings or a clearer explanation for the decision." Id. (citations omitted). Thus, while an ALJ is not obligated to address specifically each piece of evidence in his decision, Jones v. Barnhart, No. CV-04-2772 (FB) (VVP), 2004 WL 3158536, at *6, 2004 U.S. Dist. LEXIS 1724, at *15 (E.D.N.Y. Feb. 3, 2005), he is not excused "from addressing an issue central to the disposition of the claim." Ramos v. Barnhart, No. 02 Civ. 3127 (LAP) (GWG), 2003 WL 21032012, at *10, 2003 U.S. Dist. LEXIS 7463, at *29 (S.D.N.Y. May 6, 2003) ("We of course do not suggest that every conflict in a record be reconciled by the ALJ or the Secretary, but we do believe that the crucial factors in any determination must be set forth with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.") (quoting Ferraris, 728 F.2d at 587 (internal quotation marks omitted).

While the ALJ's step three analysis of whether Plaintiff has a listed impairment under Listing 12.04 is sparse at best, [3] the Court finds his determination that she does not have a listed impairment is supported by other portions of his decision and substantial evidence in the record and is not the product of legal error. See Berry, 675 F.2d at 469 (finding that a court can look to other portions of the ALJ's decision and credible evidence in the record in determining whether the ALJ's determination is supported by substantial evidence).

1. Listing 12.04

Listing 12.04 in Appendix 1 covers affective disorders described as "[c]haracterized by a disturbance of mood, accompanied by a full or partial manic or depressive syndrome. Mood refers to a prolonged emotion that colors the whole psychic life; it generally involves either depression or elation." Listing 12.04 states that "[t]he required level of severity for these disorders is met when the requirements in both A and B are satisfied, or when the requirements in C are satisfied." Appendix. 1, § 12.04. These requirements are:

A. Medically documented persistence, either continuous or intermittent, of one of the following:
1. Depressive syndrome characterized by at least four of the following:
a. Anhedonia or pervasive loss of interest in almost all activities; or
b. Appetite disturbance with change in weight; or
c. Sleep disturbance; or
d. Psychomotor agitation or retardation; or
e. Decreased energy; or
f. Feelings of guilt or ...

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