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Cromp v. Commissioner of Social Security

United States District Court, N.D. New York

July 14, 2015

JOSEPH W. CROMP, SR., Plaintiff,

HOWARD D. OLINSKY, ESQ., for Plaintiff.

DANIEL R. JANES, Special Asst. U.S. Attorney for Defendant.


ANDREW T. BAXTER, Magistrate Judge.

In accordance with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, and N.D.N.Y. Local Rule 73.1, this matter was referred to me, with the consent of the parties, for all proceedings and entry of a final judgment, by the Honorable Gary L. Sharpe, Chief United States District Judge, by Order dated July 19, 2013 (Docket No. 11).


On, October 22, 2008, plaintiff protectively[1] filed an application for Disability Insurance Benefits ("DIB"), alleging disability beginning October 11, 2008. (Administrative Transcript ("T") at 21, 126, 272-75). The application was denied initially on March 5, 2009. (T. 150-53). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") which was conducted by ALJ Thomas P. Tielens on April 13, 2010. (T. 94-125). ALJ Tielens issued an unfavorable decision on June 18, 2010. (T. 127-44). Plaintiff requested review by the Appeals Council, and on November 23, 2011, the Appeals Council remanded plaintiff's case for supplemental proceedings. (T. 145-49).

On September 24, 2012, ALJ F. Patrick Flanagan held a supplemental hearing[2] at which plaintiff and Vocational Expert ("VE") Don Schader appeared and testified. (T. 40-93). On January 18, 2013, ALJ Flanagan issued a decision finding that plaintiff was not disabled from his alleged date of onset, through the expiration of his insured period on December 31, 2011. (T. 18-39). ALJ Flanagan's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on May 9, 2014. (T. 5-10).


A. Disability Standard

To be considered disabled, 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).

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 [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.

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 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).


Plaintiff's counsel has included a statement of facts in his brief. (Pl.'s Br. at 2-7) (Dkt. No. 13). Defense counsel has incorporated plaintiff's statement of facts as well as the findings of the ALJ at pages 23-32 of the transcript, with some additional facts from the record. (Def.'s Br. at 3) (Dkt. No. 16). The court will adopt the facts stated in plaintiff's brief, together with the facts as stated by the ALJ, with any exceptions as noted in the discussion below. Rather than further detailing the medical evidence at the outset, relevant details regarding ...

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