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Manni v. Colvin

United States District Court, N.D. New York

March 20, 2017

CHRISTINE E. MANNI, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          Olinsky Law Group Attorneys for Plaintiff

          Social Security Administration, Office of General Counsel Attorneys for Defendant

          OF COUNSEL: HOWARD D. OLINSKY, ESQ. JASON P. PECK, ESQ. Special Assistant U.S. Attorney

          MEMORANDUM-DECISION AND ORDER

          Christian F. Hummel U.S. Magistrate Judge

         Plaintiff Christine E. Manni (“Plaintiff”) brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security (“Commissioner”) denying her application for benefits under the Social Security Act (“Act”). Plaintiff moves for the matter to be remanded for further proceedings, and the Commissioner cross-moves for a judgment on the pleadings. Dkt. Nos. 10, 12.

         I. Background

         On August 3, 2012, plaintiff protectively filed an application for disability insurance benefits pursuant to the Social Security Act, 42 U.S.C. § 401 et seq., claiming an alleged onset date of January 1, 2009. T.[1] 156-59. The application was denied on October 18, 2012. Id. at 75-80. Plaintiff requested a hearing before an administrative law judge (“ALJ”), which was first held before ALJ Elizabeth W. Koennecke on February 10, 2014. Id. at 58-71. ALJ Koennecke adjourned the hearing to a later date so that plaintiff could retain counsel. Id. The second hearing was held on April 21, 2014, and plaintiff appeared with counsel. Id. at 41-57 (transcript of the hearing). In a decision dated June 13, 2014, the ALJ held that plaintiff was not entitled to disability benefits. Id. at 16-40. Plaintiff filed a timely request for review with the Appeals Council, and on July 24, 2015, the request was denied, thus making the ALJ's findings the final decision of the Commissioner. Id. at 1-6. This action followed.

         II. Discussion

         A. Standard 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 supports the decision. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “‘more than a mere scintilla, '” meaning that in the record one can find “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted)).

         “In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision.” Barringer v. Comm'r of Soc. Sec., 358 F.Supp.2d 67, 72 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). However, a court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If the Commissioner's finding is supported by substantial evidence, it is conclusive. 42 U.S.C. § 405(g); see Halloran, 362 F.3d at 31.

         B. Determination of Disability

          “Every individual who is under a disability. . . shall be entitled to a disability. . . benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is “based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience.” Ventura v. Barnhart, No. 04 Civ. 9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)) (additional citation omitted).

         The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he [or she] is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his [or her] 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 is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity (“RFC”) to perform his [or her] past work. Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry, 675 F.2d at 467. The plaintiff bears the initial burden of proof to establish each of the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. at 1180 (citing Berry, 675 F.2d at 467).

         C. ALJ Koennecke's Findings

         Plaintiff, represented by counsel, testified at the hearing held on April 21, 2014. T. 41-51. Using the five-step sequential evaluation, ALJ Koennecke found that plaintiff (1) had not engaged in substantial gainful activity since January 1, 2009, the alleged onset date; (2) had the following severe medically-determinable impairments: a learning disability, a depressive disorder, and an anxiety disorder; (3) did not have an impairment, alone or in combination, sufficient to meet the listed impairments in Appendix 1, Subpart P of Social Security Regulation Part 404; (4) maintained “the residual functional capacity to perform a full range of sedentary work at all exertional levels. Additionally, the claimant retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, maintain attention and concentration for simple tasks, regularly attend to a routine and maintain a schedule, relate to and interact appropriately with others in order to carry out simple tasks, and handle work-related stress in that she can make decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require the claimant to supervise or manage the work of others”; and, thus (5) was capable of performing her past relevant work as a cashier and food service clerk. Id. at 21-33.

         D. Plaintiff's Contentions

         Plaintiff contends that the ALJ (1) erred in finding that her learning disability did not meet Listing 12.05(C); (2) erred in failing to find her degenerative disc disease and lumbar facet syndrome severe; (3) failed to properly consider th effect of her physical impairments on her ability to work; (3) failed to properly consider the evidence of record as to her mental impairments; (4) erred in finding plaintiff's statements regarding her symptoms not fully credible; and (5) erred in failing to call a vocational expert to determine the effect of her non-exertional impairments on the occupational base of unskilled work. See Dkt. No. 10.

         1. Listing 12.05(C)

         Plaintiff argues that the ALJ erred in finding that plaintiff's learning disability did not meet the requirements of Listing 12.05(C). Dkt. No. 10 at 14-17. Defendant argues that plaintiff did not present evidence of the requisite deficits in adaptive functioning to meet Listing 12.05(C). Dkt. No. 12 at 8-12. Thus, defendant contends that the ALJ's decision finding that plaintiff did not meet Listing 12.05(C) is supported by substantial evidence. Id.

         The listing for an intellectual disability is different than the listing for other mental disorders. 20 C.F.R. Part 404, Subpart P, App. 1, § 12.00(A)(2). Listing 12.05 contains an introductory paragraph with the diagnostic description for intellectual disability. Section 12.05(C) provides for a disability where there is “[a] valid verbal, performance, or full scale IQ of 60 through 70 and a physical or other mental impairment imposing an additional and significant work-related limitation of function.” Id. § 12.05(C). Additionally, “claimants also ‘must satisfy a diagnostic description contained in the introductory paragraph' of that section by making a ‘threshold showing that they suffer from significantly subaverage general intellectual functioning with deficits in adaptive functioning' initially manifested prior to age 22.'” Brothers v. Colvin, No. 7:16-cv-00100 (MAD), 2017 WL 530525, at *6 (N.D.N.Y. Feb. 9, 2017) (quoting Casey v. Comm'r of Soc. Sec., No. 13-CV-947, 2015 WL 5512602, at *6 (N.D.N.Y. Sept. 15, 2015) (emphasis in original) (internal quotation marks and additional citations omitted). Here, defendant does not dispute that plaintiff has a valid IQ ...


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