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Brown v. Commissioner of Social Security

United States District Court, N.D. New York

July 2, 2015

JOHN BROWN, Plaintiff,

JAYA A. SHURTLIFF, ESQ., for Plaintiff

GRAHAM MORRISON, Special Asst. U.S. Attorney for Defendant


ANDREW T. BAXTER, District 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.


On, March 2, 2011, plaintiff protectively[1] filed an application for Disability Insurance Benefits ("DIB"), and an application for Supplemental Security Income ("SSI"), alleging disability beginning December 27, 2010. (Administrative Transcript ("T") at 13, 102-107, 108-114). The applications were denied initially on June 2, 2011. (T. 53-54, 55-58). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was held on August 6, 2012. (T. 30-52). At the hearing, held by videoconference, the ALJ took plaintiff's testimony and the testimony of Vocational Expert ("VE") Jay Steinbrenner. ( Id. ) On March 5, 2013, ALJ Andrew Henningfeld found plaintiff was disabled from December 27, 2010 until October 31, 2012, but that his disability ended as of November 1, 2012. (T. 13-23). ALJ Henningfeld's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on May 8, 2014. (T. 1-7).


A. 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).

B. Standard for Initial Award and Termination of Benefits

A plaintiff seeking disability insurance benefits or Supplemental Security Income ("SSI") disability benefits must establish that he or she 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).

In an initial determination of disability, the Commissioner uses a five step analysis. 20 C.F.R. § 404.1520.

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 [per se] disabled.... 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.

Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013); 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 his impairment prevents him from performing his past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy that the claimant can do." Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009); Selian, 708 F.3d at 418 & n.2.

The regulations provide that after the Commissioner makes a finding of disability, this finding is evaluated "from time to time"[2] to determine if the claimant is still eligible. See 42 U.S.C. § 423(f); 20 C.F.R. §§ 404.1590, 404.1589. To determine whether a claimant's disability has ended, the Commissioner has developed a multistep[3] analysis, known as the "Continuing Disability Review" ("CDR") process. 20 C.F.R. § 404.1594(f). Termination of benefits may occur when there is substantial evidence to show that a "medical improvement" ("MI") restores the recipient's ability to work. Deronde v. Astrue, No. 7:11-CV-998, 2013 WL 869489, at *2 (N.D.N.Y. Feb. 11, 2013) (citing inter alia 20 C.F.R. § 1594; Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2003)). MI is defined as "any decrease in the medical severity of [the claimant's] impairment(s) which was present at the time of the most recent favorable medical decision that [he or she was] disabled or continued to be disabled." Id. (citing inter alia 20 C.F.R. § 404.1594(b)(1)). The Commissioner must compare the current medical severity of plaintiff's impairment to the severity of that impairment at the time of the most recent favorable decision. Douglass v. Astrue, 496 Fed.App'x 154, 155 (2d Cir. 2012) (citing Veino, 312 F.3d at 586-87). This concept is referred to as the "point of comparison." 20 C.F.R. § 404.1594(b)(7).

The multi-step analysis is as follows:

(1) Is the plaintiff engaging in substantial gainful activity ("SGA"). If so, the Commissioner will find that the disability has ended.
(2) If not, the Commissioner determines whether the plaintiff has an impairment or combination of impairments which meets or equals the severity of an impairment listed in Appendix 1 of Part 404 ("Listed Impairment). If so, the disability will continue.
(3) If not, the Commissioner determines whether there has been MI as defined in 20 C.F.R. § 404.1594(b)(1).
(4) If there has been MI, the Commissioner determines whether the MI is related to the plaintiff's ability to work under 20 C.F.R. § 404.1594(b)(1) through (b)(4).
(5) If there has been no MI, or the MI is not related to the plaintiff's ability to work, the Commissioner determines if any of the "exceptions"[4] in paragraphs (d) and (e) apply.
(6) If there has been MI or one of the first group of exceptions to MI applies, the Commissioner will determine whether all the plaintiff's current impairments are "severe."
(7) If plaintiff's impairments are severe, then the Commissioner will assess the plaintiff's RFC, based on all the current impairments, and determine whether the plaintiff can perform his or her prior work. If so, disability will cease.[5]
(8) If the plaintiff cannot perform his or her prior work, then the Commissioner will consider whether the plaintiff can perform other work in the national economy, based upon the plaintiff's age, education, and past work experience. If so, disability will cease. If not, disability will continue.

20 C.F.R. § 404.1594(f)(1)-(f)(8) cited in Deronde, 2013 WL 869489 at *2 n.8. These steps are intended to assure that the review of disability cases is conducted in a uniform manner, and that "any decisions to stop disability benefits are made objectively, neutrally and are fully documented." Deronde, 2013 WL 869489 at *2 (quoting 20 C.F.R. § 404.1594(f)).

Pursuant to this multi-step standard, the Commissioner has the burden of persuasion in showing that MI has occurred.[6] Abrams v. Astrue, No. 06-CV-689, 2008 WL 4239996, at *2 (W.D.N.Y. Sept. 12, 2008) (citing Suriel v. Comm'r of Soc. Sec., No. CV-05-1218, 2006 WL 2516429, at *4 (E.D.N.Y. Aug. 29, 2006); Lopez v. Barnhart, 3:05-CV-19, 2006 WL 1272644, at *2 n.2 (D. Conn. Mar. 1, 2006)). If the Commissioner reaches the eighth step, the Commissioner has the limited burden to show that there is other work that the plaintiff can perform in the national economy. See 20 C.F.R. § 404. 1594(b)(5) ("[i]n most instances, we must show that you are able to engage in [SGA] before your benefits are stopped." (emphasis added)).


Plaintiff was born on June 11, 1973 and was thirty-nine years old at the time of the ALJ hearing. (T. 31). Plaintiff was 5'5" and weighed 210 pounds. (T. 32). Plaintiff completed the eleventh grade in school and then obtained his General Equivalency Diploma ("GED"). (T. 32). His most recent prior work experience was as a hazardous waste cleaner for Apex Environmental Services. (T. 33). The job involved cleaning chemical spills, demolition work, swinging a sledge hammer, and running a jack ...

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