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Clemons v. Commissioner of Social Security

United States District Court, N.D. New York

February 27, 2017

JOY F. CLEMONS, Plaintiff,

          HOWARD D. OLINSKY, ESQ., for Plaintiff.

          ELIZABETH D. ROTHSTEIN, Special Asst. U.S. Attorney for Defendant.



         This 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).


         Plaintiff 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).


         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 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).

         Plaintiff's 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).

         Plaintiff 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).

         The 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.


         As an 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.

         The ALJ 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 meet ...

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