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Drogo v. Colvin

United States District Court, N.D. New York

July 1, 2015

STEVEN M. DROGO, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

STANLEY LAW OFFICES, LLP JAYA A. SHURTLIFF, ESQ., Syracuse, NY, Counsel for Plaintiff.



GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Steven R. Drogo ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' crossmotions for judgment on the pleadings. (Dkt. Nos. 11, 15.) For the reasons set forth below, Plaintiff's motion is granted in part and denied in part and Defendant's motion is granted in part and denied in part.


A. Factual Background

Plaintiff was born on April 6, 1978. (T. 149.) He completed high school with an Individual Education Program ("EIP") diploma. (T. 172.) Generally, Plaintiff's alleged disability consists of schizophrenia paranoid and psychosis. (T. 171.) His alleged disability onset date is July 31, 2008, and his date last insured is December 21, 2013. (T. 43.) He had previously worked as a grill cook and prep cook. (T. 172.)

B. Procedural History

On July 30, 2010, Plaintiff applied for Social Security Disability Insurance Benefits ("SSD") under Title II and Supplemental Security Income ("SSI") under Title XVI. Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On February 17, 2012, Plaintiff appeared before the ALJ, David S. Pang. (T. 15-34.) On March 9, 2012, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 38-55.) On June 14, 2013, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-7.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following five findings of fact and conclusions of law. (T. 43-51.) First, the ALJ found Plaintiff met his insured date through December 13, 2013 and further, Plaintiff had not engaged in substantial gainful activity since July 31, 2008. (T. 43.) Second, the ALJ found Plaintiff had the severe impairments of back disorder, morbid obesity, schizophrenia, psychotic disorder, and learning disability. ( Id. ) The ALJ determined Plaintiff's medically determinable impairments of hypertension and Eustachian tube dysfunction were non-severe impairments. ( Id. ) Third, the ALJ found Plaintiff did not have an impairment, or combination of impairments, that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 44.) The ALJ specifically considered Listing § 12.03. ( Id. ) Fourth, the ALJ found Plaintiff had the residual functional capacity ("RFC") to perform "light work, " except he could "occasionally stoop, kneel, crouch, crawl, and climb ramps or stairs, but may never climb ladders, ropes or scaffolds. He [was] limited to simple, routine and repetitive tasks, and [could] tolerate only occasional interaction with supervisors, coworkers, and the public." (T. 45.)[1] Fifth, the ALJ determined Plaintiff could not perform his past relevant work; however, there were jobs that exist in significant numbers in the national economy Plaintiff could perform. (T. 49-50.)


A. Plaintiff's Arguments

Plaintiff makes four separate arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues the ALJ did not have sufficient evidence to make a step three or RFC decision, because (1) the ALJ failed to fully develop the record and (2) the ALJ failed to follow the treating physician rule. (Dkt. No. 11 at 9-16 [Pl.'s Mem. of Law].) Second, Plaintiff argues the RFC finding does not completely and accurately describe Plaintiff's limitations because it is inconsistent with the ALJ's own findings. ( Id. at 16-18.) Third, Plaintiff argues the ALJ failed to apply the appropriate legal standards in evaluating Plaintiff's credibility. ( Id. at 18-20.) Fourth, and lastly, Plaintiff argues the Vocational Expert ("VE") testimony did not provide substantial evidence to support the denial. ( Id. at 20-21.)

B. Defendant's Arguments

In response, Defendant makes essentially three arguments. First, Defendant argues the ALJ properly developed the record, and the ALJ's RFC finding is supported by substantial evidence. (Dkt. No. 15 at 6-14 [Def.'s Mem. of Law].) Second, Defendant argues the ALJ properly evaluated Plaintiff's credibility. ( Id. at 14-17.) Third, and lastly, Defendant argues the ALJ properly solicited VE testimony. ( Id. at 17-18.)


A. Standard of Review

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) and 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 only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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 has been 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 (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).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." 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 ...

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