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Cardillo v. Colvin

United States District Court, N.D. New York

March 24, 2017

ROBERT C. CARDILLO, II, Plaintiff,
v.
CAROLYN M. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

          Office of Peter M. Hobaica, LLC, Social Security Administration Office of Regional General Counsel, Attorneys for Defendant

          B. BROOKS BENSON, ESQ., CATHARINE L. ZURBRUGG, ESQ. OF COUNSEL:

          MEMORANDUM-DECISION & ORDER

          Christian F. Hummel, U.S. Magistrate Judge

         Plaintiff Robert C. Cardillo II brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security (“Commissioner” or “defendant”) denying his applications for supplemental security income benefits (“SSI”) and disability insurance benefits. Dkt. No. 1 (“Compl.”).[1] Plaintiff moves for a finding of disability, and the Commissioner cross moves for a judgment on the pleadings. Dkt. Nos. 14, 16. For the following reasons, the determination of the Commissioner is remanded.

         I. Background

         Plaintiff was born on January 4, 1983. T at 72. Plaintiff graduated from high school, and attended college for “a couple of months.” Id. at 34. In school, plaintiff was in “resource class” and had “some type of learning disability.” Id. at 51-52. Plaintiff's past work history includes a customer service representative at Subway, a sandwich shop, and a customer service representative at Defense Financing and Accounting Services. Id. at 35-36. Plaintiff was unable to continue his employment because “the stress of everything . . . makes my MS [multiple sclerosis] kind of flare up and my fingers don't work really, my hands[] are numb, I can't really feel the keyboard, I don't know what I'm typing. Id. at 37. Plaintiff resides with his fiancee and her family. Id. at 37-38. Plaintiff provided that he is 5' 5" tall and weighs 295 pounds. Id. at 38. Plaintiff spends his days watching television and reading. Id. He does not prepare meals or perform any household chores. Id. at 38-39. Plaintiff has a driver's license and drives approximately three times per week. Id. at 39. He is able to bathe and toilet himself, and his fiancee helps him dress. Id. at 41. Plaintiff smokes a half of a pack of cigarettes per day. Id.

         On June 27, 2013, plaintiff protectively filed a Title II application for a period of disability and disability insurance benefits and a Title XVI application for supplemental security income. T at 145-53. Plaintiff alleged disability beginning on June 3, 2013. Id. at 144. These applications were denied initially on October 16, 2013. Id. at 90-94. Plaintiff requested a hearing, and a hearing was held on June 19, 2014 before Administrative Law Judge (“ALJ”) Gregory M. Hamel. Id. at 31-69; 98-100. The Appeals Council denied plaintiff's request for review, making the ALJ's findings the final determination of the Commissioner. Id. at 1-4. Plaintiff commenced this action on February 4, 2016. Dkt. No. 1 (“Compl.”).

         II. Discussion

         A. Standard of Review

         In reviewing a final decision of the Commissioner, a district court may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987); 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) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)). The substantial evidence standard is “a very deferential standard of review . . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks omitted). Where there is reasonable doubt as to whether the Commissioner applied the proper legal standards, the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)). However, if the correct legal standards were applied and the ALJ's finding is supported by substantial evidence, such finding must be sustained, “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).

         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 on his or her 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-CV-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)).

         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 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 (spacing added). 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).

         “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 where the record contains substantial support for the ALJ's decision. See Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). If supported by substantial evidence, the Commissioner's finding must be sustained “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). The Court must afford the Commissioner's determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

         C. ALJ Decision

         Applying the five-step disability sequential evaluation, the ALJ determined that plaintiff had not engaged in substantial gainful activity since June 3, 2013, the alleged date. T at 20. The ALJ found at step two that plaintiff had the severe impairments of multiple sclerosis, pulmonary embolism, deep vein thrombosis, and obesity. Id. at 21. At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. Id. at 22. The ALJ then concluded that plaintiff retained the residual functional capacity ("RFC") to:

perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a) except that he can only occasionally climb stairs, balance, stoop, kneel, crouch, and crawl; he cannot climb ladders and similar devices; he cannot work in hazardous environments; and he can use the hands for frequent but not constant handling and fingering.

Id. at 22.

         At step four the ALJ concluded that plaintiff “is capable of performing past relevant work as a customer service representative. This work does not require the performance of work-related activities precluded by the claimant's residual functional capacity.” T at 25. Thus, the ALJ determined that plaintiff “has not been under a disability, as defined in the Social Security Act, from June 3, 2013, through the date of this decision.” Id. at 26.

         D. Arguments

         Plaintiff argues that (1) the ALJ erred in his consideration of the weight accorded to the opinions of treating physician Dr. Jessica Robb, M.D. and consultative examiner Tanya Perkins-Mwantuali, M.D.; (2) the ALJ failed to sufficiently set forth his findings relating to plaintiff's credibility; (3) the ALJ presented erroneous hypotheticals to the Vocational Expert; and (4) the ALJ failed to evaluate plaintiff's obesity properly. See generally Dkt. No. 14.[2]

         1. Weight Given to Medical Opinions

         Plaintiff argues that the ALJ erred in declining to give controlling weight to Jessica Robb, M.D., plaintiff's neurologist, who concluded that plaintiff's multiple sclerosis meets listings 11.09A and 11.09 C.[3] Dkt. No. 14 at 14. Plaintiff further argues that the ALJ also erred in declining to give controlling weight to Dr. Robb's opinion that plaintiff has a less than sedentary RFC. Id. at 19. Finally, plaintiff contends that the ALJ improperly “cherry-picked” from the opinion of consultative examiner Tanya Perkins-Mwantuali, M.D., and provided an inconsistent report of the weight he accorded her opinion. Id. at 21. Defendant argues that the ALJ properly considered and declined to give controlling weight to Dr. Robb's opinions about Listing 11.09 and plaintiff's RFC as Dr. Robb's treatment was based on just two visits and “out of proportion to the degree and type of treatment Plaintiff had received.” Dkt. No. 19 at 7-13. Defendant also contends that the ALJ's discussion of the weight he accorded to the consultative examiner's opinion was not inconsistent and was supported by substantial evidence. Id. at 13-14.

         a. Dr. Jessica Robb, M.D.

         i. Listings

         Plaintiff argues that the ALJ improperly fails to give controlling weight to, or even mention, the Listing questionnaire, which he argues establishes that plaintiff met the requirements of Listing 11.09A - disorganization of motor function - and 11.09C - significant, reproducible fatigue of motor function with substantial muscle weakness on repetitive activity resulting from neurological dysfunction in areas of the central nervous system known to be pathologically involved by the multiple sclerosis process. Dkt. No. 14 at 14-26.

         “Impairments listed in Appendix 1 of the Social Security Regulations are ‘acknowledged by the [Commissioner] to be of sufficient severity to preclude' substantial gainful activity. Accordingly, a claimant who meets or equals a Listing is ‘conclusively presumed to be disabled and entitled to benefits.'” Knight v. Astrue, 32 F.Supp.3d 210, 218 (N.D.N.Y. 2012) (quoting Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995)). In order for a claimant to demonstrate that his impairment meets or medically equals a listing, “the claimant must show that his or her impairments meet all of the specified criteria.” Id. (citing Sullivan v. Zebley, 493 U.S. 521, 530 (1990); 20 C.F.R. § 416.925(d)). Further, where “a claimant's impairment ‘manifests only some of those criteria, no matter how severely, ' the impairment does not qualify.” Id. (quoting Sullivan, 493 U.S. at 530). The claimant bears the burden of establishing that his or her impairment matches, or is equal in severity to, a Listing. Naegele v. Barnhart, 433 F.Supp.2d 319, 324 (W.D.N.Y. 2006) (“It must be remembered that plaintiff has the burden of proof at step 3 that she meets the Listing requirements.”). “To satisfy this burden the claimant must offer medical findings equal in severity to all requirements, which findings must be supported by medically acceptable clinical and laboratory diagnostic techniques.” Knight, 32 F.Supp.3d at 218 (citing 20 C.F.R. § 416.926(b)). “When a claimant's symptoms appear to match those described in a listing, ‘the ALJ must explain a finding of ineligibility based on the Listings.'” Peach v. Colvin, No. 15-CV-104S, 2016 WL 2956230, at *4 (W.D.N.Y. May 23, 2016).

         Listing 11.09[4] provides:

         Multiple sclerosis. With:

A. Disorganization of motor function as described in 11.04B; or
B. Visual or mental impairment as described under the criteria in 2.02, 2.03, ...

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