United States District Court, W.D. New York
MICHAEL A. TELESCA, District Judge.
Jack Winfield Thrasher ("Plaintiff"), brings this action pursuant to 42 U.S.C. § 405(g) seeking review of the final decision of the Commissioner of Social Security ("the Commissioner") denying his application for Disability Insurance Benefits ("DIB").
Presently before the Court are the parties' motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Dkt. ##8, 11.
Plaintiff filed a DIB application on May 13, 2008, alleging disability beginning May 1, 2007,  due to traumatic brain injury ("TBI") and vitamin B-12 deficiency. T. 28, 147-50, 163. His initial application was denied, and a hearing was subsequently requested before an Administrative Law Judge ("ALJ"). T. 68-72. Plaintiff appeared with counsel before ALJ Bruce R. Mazzarella in Buffalo, New York, on December 7, 2010. The ALJ also heard testimony from a vocational expert. T. 26-67.
In applying the familiar five-step sequential analysis as contained in the administrative regulations promulgated by the Social Security Administration, see 20 C.F.R. §§ 404.1520, 416.920; Lynch v. Astrue, No. 07-CV-249, 2008 WL 3413899, at *2 (W.D.N.Y. Aug. 8, 2008) (detailing the five steps), the ALJ found: (1) Plaintiff had not engaged in substantial gainful activity since his alleged onset date of November 15, 2005; (2) he had the severe impairments of TBI with mild cognitive loss and vitamin B-12 deficiency; (3) his impairments did not meet or equal the Listings set forth at 20 C.F.R., Part 404, Subpart P, Appx. 1, and that he retained the residual functional capacity ("RFC") to perform work at all exertional levels, except that he was limited to simple, repetitive, and routine tasks with little in the way of changes in work assignments, and was limited to 1 and 2-step instructions or tasks that could be reduced to checklist form; (4) Plaintiff was not able to return to his past relevant work; and (5) based in part upon the vocational expert testimony and using the Medical-Vocational Guidelines, there existed jobs in significant numbers in the national economy that Plaintiff could perform. T. 12-20. The ALJ then concluded that Plaintiff was not disabled as defined in the Act. T. 20-21.
The ALJ's determination became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on July 20, 2012. T. 1-4. This action followed. Dkt.#1.
The Commissioner moves for judgment on the pleadings on the grounds that substantial evidence supports the Commissioner's final decision that Plaintiff was not disabled. Comm'r Mem. (Dkt. #9) 19-24. Plaintiff has filed a cross-motion alleging that the ALJ improperly applied the treating physician rule, erroneously assessed Plaintiff's credibility, and should have found Plaintiff disabled at step five of the sequential analysis. Pl. Mem. (Dkt. #11-1) 9-15.
I. Scope of Review
A federal court should set aside an ALJ decision to deny disability benefits only where it is based on legal error or is not supported by substantial evidence. Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (internal quotation marks omitted).
II. Medical Evidence
A. Prior to November 15, 2005
Plaintiff had an auto accident in 1967 resulting in a TBI that left him unconscious for eight weeks. T. 223, 227, 255. The accident also resulted in one of his legs being shorter than the other. T. 256.
Psychiatrist Hilary Tzetzo evaluated Plaintiff on October 27, 2005, shortly before his alleged onset date of disability, at the request of his employer. T. 254-58. At work, Plaintiff was described as having memory problems, disheveled appearance, and irritable, and as a result he was sent a certified letter informing him of these problems. T. 254. He denied, however, that these problems had been ongoing for over a year. Id.
Plaintiff's memory was "a concern, " but he had not seen any mental health professional or counselor and denied psychiatric history. T. 254. He had an "excellent academic history" and excellent vocabulary. He told Dr. Tzetzo that he hoped he did not have a mental health problem and that there was a physical reason for his work problems. T. 255.
The mental status examination revealed that Plaintiff was cooperative, attentive, alert, and fully oriented with adequate eye contact. T. 256. His grooming was moderate, at best, his jeans were not fully zipped, but he was not malodorous. Id . Plaintiff scored 29 out of 30 on a mini-mental status exam, indicating normal cognition. Id . He recalled 7 digits forward and 5 back, but could only recall 1 of 3 objects after 5 minutes, and was not able to remember 2 even with prompting, nor could he recall a street address with prompting. Id . Dr. Tzetzo noted that he could successfully recite details from a short story, suggesting decent reading comprehension skills. Id.
Plaintiff exhibited no obvious psychomotor retardation or agitation. Id . Speech was spontaneous, but there was an articulation problem. Id . Thought processes were coherent and he was at least of average intelligence. T. 257. Insight was marginal and judgment was fair. Id . Diagnoses were cognitive disorder, not otherwise specified with recent memory problems; traumatic brain injury; ongoing stressors include limited social support; and a Global Assessment of Functioning score of 58, indicating "moderate symptoms (e.g., flat affect and circumstantial speech, occasional panic attacks), or moderate difficulty in social, occupational, or school functioning (e.g., few friends, conflicts with peers or co-workers)." Amer. Psych. Assoc., Diagnostic and Statistical Manual of Mental Disorders, ("DSM") 32, 34 (4th ed., text revision, 2000).
Dr. Gordon Steinagle also conducted a "fitness-for-duty" examination on October 27, 2005. T. 259-61. Dr. Steinagle noted reports of Plaintiff having increased problems following instructions, angry outbursts at work, increasing forgetfulness, and a somewhat unkept appearance. Plaintiff acknowledged these issues and stated that it had been going on for an undetermined amount of time. T. 259. He could perform activities of daily living without problems. His physical examination was normal except that his right leg was shortened approximately 3-4 inches due to a pelvic fracture sustained in a motor vehicle accident in the 1960s. T. 260. His neurological examination was also normal. T. 261. Dr. Steinagle determined that Plaintiff was unfit for duty, likely due to a central nervous system problem. Id.
On November 8, 2005, Dr. John Hargraves of the Employee Health Service stated that Plaintiff was unfit for duty as a mental health therapy aide based on the ...