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Irish v. Commissioner of Social Security

United States District Court, N.D. New York

June 23, 2015

BRYAN J. IRISH, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

HOWARD D. OLINSKY, ESQ., for Plaintiff.

AMANDA J. LOCKSHIN, Special Asst. U.S. Attorney for Defendant.

REPORT-RECOMMENDATION

ANDREW T. BAXTER, Magistrate Judge.

This matter was referred to me for report and recommendation by the Honorable Mae A. D'Agostino, 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 August 24, 2010, plaintiff protectively filed an application for Supplemental Security Income ("SSI"), alleging disability beginning April 15, 2006. (Administrative Transcript ("T") at 21, 266, 271). The application was denied initially on December 7, 2010. (T. 21, 93). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on September 12, 2012. (T. 41-81). On January 4, 2013, ALJ Scott M. Staller found plaintiff was not disabled. (T. 18-38). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on April 11, 2014. (T. 1-6).

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 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 disabled without considering vocational factors such as age, education, and work experience.... 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 can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 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 her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.

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 v. Astrue, 708 F.3d at 417; 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 v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). 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).

III. FACTS

As of the date of the administrative hearing on September 12, 2012, plaintiff was 41 years old. (T. 166). He had been separated from his wife since November 2011, and lived with his girlfriend and her daughter. (T. 52-53, 69, 625).

Plaintiff left school after the seventh grade, and later obtained his General Equivalency Diploma. (T. 46, 623). His work history includes positions as a service technician and automobile detailer at a car wash, a laborer for a painting company, and most recently, as a tire installer in 2006. (T. 49, 73, 487). Plaintiff reported that he typically only remained at a position for four to five months, before having to leave due to conflicts with his co-workers or supervisors. (T. 57-58). Plaintiff attributed these difficulties to his bipolar disorder and anxiety, and testified to two occasions in which arguments with supervisors or co-workers almost escalated to violence. (T. 57, 59).

Plaintiff was diagnosed with bipolar disorder, post-traumatic stress disorder and attention-deficit disorder and has a history of psychiatric hospitalization and treatment, including suicide attempts in 1995 and 2000. (T. 487). Plaintiff had been prescribed psychiatric medicine on a regular basis since 2007, but was frequently non-compliant with his medications due to unwanted side effects and financial difficulties. (T. 55, 623, 647). Plaintiff testified that his mental impairments caused constant mood swings which made it impossible to be around other people without lashing out. (T. 24, 50) Plaintiff typically avoided grocery stores or other public places due to the potential for violent outbursts. (T. 50). He met his girlfriend online, and they typically avoided eating in restaurants or socializing with others outside the home to minimize his anxiety. (T. 50). Instead, plaintiff and his girlfriend went for rides in the country, and occasionally entertained his girlfriend's friends at home. (T. 51, 54).

Plaintiff fractured his left ankle after slipping on some ice and required ankle surgery in February 2009. (T. 465-66). Post-surgery complications required removal of a screw that had been installed in his ankle during the procedure. (T. 440-41). Plaintiff testified that he still suffered constant pain, and that his ankle would "swell right up like a balloon" if he walked more than three or four blocks. (T. 49).

Plaintiff had a history of alcoholism and substance abuse dating back to his childhood, and several attempts at drug rehabilitation were unsuccessful. (T. 52-53). Plaintiff testified that he only drank alcohol occasionally since 2001, and stopped using illegal drugs in 2006, with the exception of marijuana on limited occasions, including two weeks prior to the ALJ hearing. (T. 24, 52). However, plaintiff's medical history shows that plaintiff's substance abuse, including cocaine and marijuana use, continued on a regular basis from 2007 to 2012. (T. 358, 386, 442, 467, 482, 620, 624).

The ALJ's decision provides a detailed statement of the medical and other evidence of record. (T. 24-30). Rather than reciting this evidence at the outset, the court will discuss the relevant details below, ...


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