United States District Court, N.D. New York
NICHOLAS J. DEVIZZIO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION
EARL S. HINES, Magistrate Judge.
Nicholas J. Devizzio ("Devizzio") seeks review under 42 U.S.C. 405(g) of an adverse decision on his application for disability-based benefits available under the Social Security Act. A reviewing court's limited role 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). It cannot retry factual issues de novo or substitute its interpretation 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 it overturn administrative rulings because it would have reached a different conclusion had the matter come before it in the first instance. See Campbell v. Astrue, 465 Fed.App'x 4, 5 (2d Cir. 2012) (summary order).
Within the penumbra of this limited scope of judicial review, however, lies a threshold duty to determine whether claimants received full hearings in accordance with beneficent purposes of the Social Security Act. Thus, before evaluating the Commissioner's findings and conclusions, reviewing courts first ensure that claimants received full and fair hearings. See Echevarria v. Secretary of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982); accord Cruz v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990). This requires "searching investigations" to ensure that administrative law judges protected claimants' rights. See Robinson v. Secretary of Health & Human Servs., 733 F.2d 255, 258 (2d Cir. 1984).
This is an unconventional case. Devizzio, born in 1960, applied for child's disability insurance benefits in 2011 when he was fifty-one years old.  He claimed disability commenced November 4, 1962, (when he was two years of age) due to "osteo arthritis, club feet, spinal stenosis, and hip displaced." (T. 172).
While this belated application was not legally time-barred, other pragmatic obstacles were nearly as insuperable. First, Devizzio would need to prove that he became disabled before attaining the age of twenty-two, i.e., prior to his birthday in 1982. It was foreseeable (if not inevitable) that childhood medical records for a man fifty-one years of age no longer would be available.
Second, and because Devizzio applied for child disability insurance benefits after reaching adulthood, his application would be determined under the same standards as for adults applying on their own wage records. Thus, even were Devizzio's early medical records intact, they likely would have little or no forensic value. Pediatric medical records rarely address a child's physical and mental capacities to engage in work activities. Even when impairment-related functional limitations are recorded, pediatricians and other medical providers usually compare them to normal childhood development and activities, not predicted adult vocational capabilities.
Given these hurdles, reason and common experience would lead one to believe that Devizzio had little chance to prove that while still a toddler he became disabled under adult standards.
Devizzio, the son of Italian immigrant parents, attended regular education classes, played the violin, rode a bike, socialized with friends, participated in gym class, and graduated from high school. (T. 54, 57, 69, 80).
Devizzio was diagnosed with club feet in February, 1961. (T. 532, 579, 582). In July, 1968, he was diagnosed with metatarsus valgus. (T. 531, 577, 578, 580, 581). Treatment notes in February and May 1979 showed his weight/height combination in the obese range and a diagnosis of pes planus (flat feet). (T. 409).
At an early age, he was prescribed a "Dennis Brown bar, " i.e., baby shoes with a bar between them, as a nonsurgical method to attempt to correct his club feet. (T. 62, 76, 530-32). He also had a "special stroller" to help position his posture. (T. 63). He had several surgeries in early childhood on his feet, hips, and left knee. (T. 64-65). He retains scars from those surgeries. (T. 64).
Devizzio's height is 5'1." (T. 73). In high school, he weighed around 148 pounds. (T. 73). By age 21, Devizzio's weight was "heading towards 200." ( Id. ). In his early fifties, he weighed approximately 287 pounds. (T. 72).
Devizzio obtained a driver's license, and attended some college. (T. 52, 55). He received vocational training in office and book keeping procedures in 1991. (T. 172). Thereafter, he worked intermittently in various clerical capacities and as a cashier during portions of 1992, 1993, and 2000 through 2007. (T. 173, 178). None of his work was appreciable enough, however, to constitute "substantial gainful activity." (T. 27).
III. Commissioner's Decision
Devizzio's claim was denied initially, and he requested an evidentiary hearing. His case was assigned to an administrative law judge, Arthur Patane ("ALJ Patane"), who conducted an evidentiary hearing in June, 2012. (T. 41-85). Devizzio, represented by an appointed legal counsel,  attended and testified. ( Id. ). A family friend, Jean Ventre, also appeared and testified. (T. 25, 79-84). The remaining sources of evidence included affidavits from family friends, sparse medical records pertaining to the period prior to 1982, and additional medical records pertaining to Devizzio's current medical condition.
ALJ Patane utilized a five-step evaluation procedure prescribed by regulation and approved by courts as a fair and just way to determine disability applications in conformity with the Social Security Act. This procedure is sequential, i.e., when a decision can be reached at an early step, remaining steps are not considered.
At Step 1, ALJ Patane found that Devizzio had not attained age 22 as of November 4, 1962, his alleged onset-of-disability date, and that even though he worked sporadically, he never engaged in substantial gainful activity. (T. 27).
At Step 2, ALJ Patane found that Devizzio, prior to attaining age 22, had the following medically determinable impairments: "bilateral club feet; bilateral metastasis ( sic ) valgus; obesity and pes planus (flat feet)." (T. 27). ALJ Patane further found, however, that these impairments were not severe. ( Id. ). Specifically, ALJ Patane found no contemporaneous medical evidence suggesting that Devizzio's impairments significantly limited (or were expected to significantly limit) his ability to perform basic work-related activities for twelve consecutive months. ( Id. ).
Under sequential evaluation, a finding that a claimant lacks a severe impairment ends the inquiry. Thus, ALJ Patane concluded that Devizzio had not been under a disability at any time prior to 1982, and his application was denied in a written decision dated October 15, 2012. (T. 25-33).
The Appeals Council denied Devizzio's request for review. (T. 1-4). Devizzio then instituted this proceeding.
IV. Points of Alleged Error
Devizzio, now proceeding pro se, proffers nearly 200 pages of argument in the forms of a "Plaintiff's Brief" (Dkt. No. 30), "Motion for Summary Judgment" (Dkt. No. 29), "Motion to Submit New Relevant Evidence" (Dkt. No. 28), and "Motion to Striking ( sic ) of Statements" (Dkt. No. 27). Liberally construed, Devizzio proffers five issues:
1. Failure to fully develop the evidentiary record;
2. Denial of due process of law by failing to conduct a ...