United States District Court, N.D. New York
JOY F. CLEMONS, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
D. OLINSKY, ESQ., for Plaintiff.
ELIZABETH D. ROTHSTEIN, Special Asst. U.S. Attorney for
MEMORANDUM-DECISION AND ORDER
ANDREW T. BAXTER, U.S. MAGISTRATE JUDGE
matter was referred to me, for all proceedings and entry of a
final judgment, pursuant to the Social Security Pilot
Program, N.D.N.Y. General Order No. 18, and in accordance
with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P.
73, N.D.N.Y. Local Rule 73.1 and the consent of the parties.
(Dkt. Nos. 4, 7).
protectively filed an application for Disability Insurance
Benefits (“DIB”) on November 30, 2012, and an
application for Supplemental Security Income
(“SSI”) on December 7, 2012, each alleging
disability beginning February 1, 2004. (Administrative
Transcript (“T”) at 19, 130-40). The applications
were denied initially on April 24, 2013. (T. 56-71).
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”), which was held on May 27, 2014.
(T. 37-55). On September 12, 2014, ALJ Barry E. Ryan found
plaintiff was not disabled. (T. 16-36). The ALJ's
decision became the Commissioner's final decision when
the Appeals Council denied plaintiff's request for review
on April 6, 2016. (T. 1-4).
GENERALLY APPLICABLE LAW
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).
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.
Scope of Review
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.
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).
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).
the date of the administrative hearing on May 27, 2014,
plaintiff was 55 years old. (T. 41). Plaintiff was a high
school graduate, who had attended special education classes
due to difficulties with reading and writing. (T. 41-42). She
resided with her adult daughter and four grandchildren, who
ranged in age from 12 to 17. (T. 309).
previous employment included work as an office cleaner,
retail employee, and day care provider. (T. 181).
Plaintiff's longest employment was as a food service
worker with the City of Syracuse School District, a position
she held for approximately sixteen years. (Id.).
Plaintiff testified that she left this position after back
pain, resulting from a car accident, made it difficult for
her to meet the job's physical requirements. (T. 44).
had a lengthy history of Type II diabetes and hypertension,
but reported that she was inconsistent with her insulin and
blood pressure medication. (T. 313, 362, 368-69). She also
suffered joint and muscle pain that was consistent with
fibromyalgia. (T. 455). Plaintiff's treating physicians
had recommended both pain medication and low-impact exercises
to alleviate some of her pain. (T. 455). Plaintiff was
inconsistent with this treatment protocol as well, which she
attributed, in part, to her depression. (T. 806, 822).
Plaintiff received intermittent mental health treatment since
2002, and began attending counseling on a regular basis in
2013. (T. 368, 669-70, 691-92).
ALJ's decision provides a detailed statement of the
medical and other evidence of record. (T. 23-29). Rather than
reciting this evidence at the outset, the court will discuss
the relevant details below, as necessary to address the
issues raised by plaintiff.
THE ALJ'S DECISION
initial matter, the ALJ determined that plaintiff met the
insured status requirements for DIB through December 31,
2008. (T. 20, 22). Plaintiff had previous DIB and SSI
applications denied in a determination dated November 9,
2009, which she did not appeal. Because the prior DIB
determination was made after her date last insured, the ALJ
found that plaintiff's November 30, 2012 DIB application
was barred by the doctrine of administrative res judicata.
(T. 20). The ALJ then considered plaintiff's SSI
application, and whether she was disabled since November 10,
2009, the date after the prior, final determinations that
plaintiff was not disabled.
found that plaintiff had not engaged in substantial gainful
activity since November 10, 2009. (T. 22). Next, the ALJ
found that plaintiff had the following severe impairments at
step two of the sequential evaluation: diabetic neuropathy,
hypertension, fibromyalgia, degenerative changes of the
lumbar spine, and depression. (T. 23-25). At the third step,
the ALJ determined that plaintiff's impairments did not