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Pitts v. Colvin

United States District Court, W.D. New York

June 19, 2015

SHERESHA M. PITTS, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

DECISION AND ORDER

WILLIAM M. SKRETNY, District Judge.

1. Plaintiff Sheresha M. Pitts challenges an Administrative Law Judge's ("ALJ") determination that she is not disabled within the meaning of the Social Security Act ("the Act"). Plaintiff alleges that she has been disabled since May 16, 2008, due to a pulmonary embolism, pulmonary hypertension, shortness of breath, sleep apnea, right side neuropathy, chest-wall pain, migraine headaches, and obesity. Plaintiff contends that her impairments have rendered her unable to work. She therefore asserts that she is entitled to disability benefits under the Act.

2. On May 18, 2008, Plaintiff submitted an application for Title II Social Security Disability ("SSD") benefits. Her claim was initially denied on September 22, 2011. Pursuant to Plaintiff's request, ALJ Donald T. McDougall held an administrative hearing on October 26, 2008, at which Plaintiff appeared with counsel and testified. At that hearing, an impartial vocational expert ("VE"), Jay Steinbrenner, also testified. On November 29, 2012, ALJ McDougall rendered a Notice of Decision denying SSD benefits to Plaintiff.[1] On April 18, 2014, the Appeals Council denied her request for review. Plaintiff filed the current action on April 25, 2014, challenging Defendants' final decision.[2]

3. On September 29, 2014, Plaintiff filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 9). The Commissioner followed suit on November 21, 2014. (Docket No. 11). This Court took the motions under advisement without oral argument.

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the 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). If supported by substantial evidence, the Commissioner's finding 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 [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Act. See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below:

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 is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curium); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff has not engaged in substantial gainful activity since the alleged onset of her disability (R. at 15);[3] (2) Plaintiff's pulmonary embolism, pulmonary hypertension, shortness of breath, sleep apnea, right side neuropathy, chest-wall pain, migraine headaches, and obesity constitute "severe" impairments within the meaning of the Act (R. at 15); (3) Plaintiff's impairment or combination of impairments does not meet the criteria necessary for finding a disabling impairment under the regulations (R. at 16); (4) Plaintiff was capable of performing past relevant work in customer service (R. at 22) since she retained the residual function capacity ("RFC") to perform light work as defined in 20 C.F.R. 404.1567(b), except that she needs to be able to sit or stand at will every 30 minutes, cannot be exposed to extremes of temperature, no exposure to concentrated levels of fumes, dusts, gases or other respiratory irritants, no overhead reaching with the right hand/arm, and no hazards or work around dangerous moving machinery (R. at 17); and (5) though Plaintiff could perform her past work, thus making this step superfluous, the ALJ concluded that given Plaintiff's age, education, work experience, and RFC, jobs exist in significant numbers in the national economy that she can perform in the customer service industry. (R. at 22). Ultimately, the ALJ determined that Plaintiff was not under a disability, as defined by the Act, at any time through the date of his decision, November 29, 2012. (R. at 24).

10. Plaintiff raises four challenges to the ALJ's decision. Plaintiff first argues that the ALJ improperly rejected her primary physician's opinion. Plaintiff's primary physician was Dr. Sonal Patel. (R. at 21). In a letter dated October 29, 2012, Dr. Patel advised Plaintiff to keep both of her legs elevated to prevent swelling. (R. at 21, 1125). Dr. Patel wrote another letter on December 3, 2012, further stating that Plaintiff was to keep her legs elevated to prevent swelling and possible recurring of clots and chest pain. Plaintiff contends that the ALJ violated the "treating physician's rule, " by failing to afford proper weight to Dr. Patel's opinion that she must keep her legs elevated.[4] Neither letter, however, stated that Plaintiff was unable to work or must keep her legs elevated at all times. (R. at 1125, 1132). Plaintiff argues that the ALJ is required to explain his reasons for discounting a treating physician's opinion, which ALJ McDougall allegedly neglected to do. In rendering his decision, ALJ McDougall considered Dr. Patel's October 2012 letter but did not give it controlling weight because he found it inconsistent with Plaintiff's own admissions. Significantly, Dr. Patel makes no mention of ongoing treatment for lower extremity problems nor indicates that Plaintiff was explicitly unable to work. (R. at 21, 22, 1125).

11. According to the "treating physician's rule, " the ALJ will give more weight to the treating physician if the opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in your case record." 20 C.F.R. § 404.1527(c)(2); see also Green-Younger v. Barnhart, No. 02-6133, 2003 WL 21545097, at *6 (2d Cir. July 10, 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000). Factors in paragraphs (c)(2)(i)[5] and (c)(2)(ii)[6] will be applied when a treating source's opinion is not given controlling weight. 20 C.F.R. § 404.1527(c)(2). When making a determination, the ALJ may "rely on what the [medical] record says, but also on what it does not say." Johnson v. Astrue, No. 09 Civ. 6017(RMB)(JCF) 2010 WL 5573632, at *11 (S.D.N.Y. Dec. 3, 2010) (quoting Dumas v. Schweiker, ...


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