United States District Court, N.D. New York
CHRISTOPHER CADIN, ESQ., for Plaintiff.
TOMASINA DiGRIGOLI and STEPHEN P. CONTE, Special Asst. U.S. Attorneys, for Defendant
ANDREW T. BAXTER, Magistrate Judge.
This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, Chief 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 January 4, 2011, plaintiff protectively filed for Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"), alleging disability beginning March 15, 2006. (Administrative Transcript ("T.") 89, 190-198). Plaintiff's claims were denied initially on April 21, 2011. (T. 135-140). After a hearing on April 10, 2012, at which plaintiff testified, Administrative Law Judge ("ALJ") John P. Ramos denied the applications in a decision issued on August 2, 2012. (T. 86-105). The ALJ's determination became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on January 2, 2014. (T. 1-7).
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) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); 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 his impairment prevents him from performing his 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, 708 F.3d at 417 (quoting Talavera v. Astrue, 697 F.3d at 151; 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, 697 F.3d at 151 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). 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).
As of the date of the administrative hearing in April 2012, plaintiff was 47 years old. (T. 133). She left school in the 11th grade but subsequently obtained her GED. (T. 17-8, 123-24, 221, 499). After receiving her cosmetology license in 1983, plaintiff worked as a hair stylist both independently and at various salons. (T. 114, 222, 226, 521, 544). She also held temporary positions packing boxes (2007), and as a bell-ringer for the Salvation Army (2009). (T. 226).
Plaintiff was diagnosed with human immunodeficiency virus ("HIV") in 1999. (T. 432). Plaintiff admitted that she had difficulty taking her anti-retroviral medication regularly, which contributed to instability in her CD-4 count and spikes in her viral load, but she described her physical condition as "good." (T.288, 333-334). Plaintiff generally returned to her medicinal regime when she had an outbreak of thrush or related symptoms. (T. 119, 334). Since 2009, plaintiff received mental health treatment for depression, anxiety and post-traumatic stress disorder ("PTSD"), and was diagnosed with attention deficit hyperactivity disorder ("ADHD") in 2011. (T. 443, 472-527).
Plaintiff admitted that she had abused cocaine, heroin, and other drugs "all my life, " and smoked marijuana on a daily basis. (T. 121, 127, 470, 516). She participated in individual and group counseling for drug treatment, including Narcotics Anonymous. (T. 121). Plaintiff testified that she had not used any drugs or alcohol for thirty-one days as of the date of the hearing. (T. 127).
The ALJ's decision provides a detailed statement of the medical and other evidence of record. (T. 86-106). Rather than reciting this evidence at the outset, the court will discuss the relevant details below, as necessary to address the issues raised by plaintiff.
IV. ALJ's DECISION
The ALJ found that plaintiff had not been engaged in substantial gainful activity since the alleged onset date of March 15, 2006, based upon a consideration of the plaintiff's testimony and wage information, together with the evidence as a whole. (T. 91). Although plaintiff had worked occasionally after the alleged disability onset date, including as a ...