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Cruz v. Colvin

United States District Court, W.D. New York

March 30, 2017

EDELMIRO CRUZ, JR., Plaintiff,


          WILLIAM M. SKRETNY United States District Judge.

         1. Plaintiff Edelmiro Cruz, Jr. challenges an Administrative Law Judge's (“ALJ”) determination that he is not disabled within the meaning of the Social Security Act (“the Act”). Plaintiff alleges that he has been disabled since January 31, 2012, due to the following severe impairments: thoracolumbar disc disease, migraine headaches, ear pain, anxiety, depression, asthma, vertigo, temporomandibular joint disorder (“TMJ”), sleep apnea, and hypertension. Plaintiff argues that his impairments have rendered him unable to work. He therefore asserts that he is entitled to payment of disability insurance benefits.

         2. Plaintiff filed an application for disability insurance benefits on March 21, 2012. The Commissioner denied the application, after which Plaintiff timely filed a request for a hearing. Pursuant to Plaintiff's request, ALJ David S. Lewandowski held an administrative hearing on June 10, 2013. Plaintiff appeared with counsel and testified, as well as an impartial vocational expert. The ALJ considered the case de novo, and on August 26, 2013, issued a decision denying Plaintiff's application for benefits. On December 24, 2014, the Appeals Council denied Plaintiff's request for review, thereby rendering the ALJ's August 26, 2013 decision the Commissioner's final decision.

         3. Plaintiff filed the current civil action on February 27, 2015, challenging the Commissioner's final decision. On September 22, 2015, Plaintiff filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (Docket No. 9.) Defendant filed a Motion for Judgment on the Pleadings on November 23, 2015. (Docket No. 11.) After full briefing, this Court deemed the motions submitted and reserved decision. For the following reasons, Defendant's motion is granted and Plaintiff's is denied.

         4. A court reviewing a denial of disability benefits 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 be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to “more than a mere scintilla, ” and it has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

         5. “To determine on appeal whether the 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). 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). In other words, this Court must afford the Commissioner's determination considerable deference, and will 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).

         6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Act. See 20 C.F.R. §§ 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

         7. This five-step process is detailed below:

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 is 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; 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 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.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

         8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed.2d 66 (1983).

         9. In this case, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2016. He then made the following findings with regard to the five-step process, set forth above: (1) Plaintiff has not engaged in substantial gainful activity (“SGA”) since his alleged onset of disability date on January 31, 2012 (R. at 27);[1] (2) Plaintiff has the following severe impairments: cervical, thoracic, and lumbar disc disease status post-assault and cervicogenic headaches (id.); (3) Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 C.F.R. §§ 404.1520(d), 404.1525, and 404.1526 (R. at 29); (4) Plaintiff retains the residual functional capacity (“RFC”) to perform sedentary exertional work as defined in 20 C.F.R. § 404.1567(a) with certain additional exertional[2] and non-exertional[3] limitations, and that this RFC precluded Plaintiff from performing any past relevant work (R. 29-31); and (5) considering the Plaintiff's age, education, work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform (R. 33). Ultimately, the ALJ concluded that Plaintiff was not disabled, as defined by the Act, at any time through the date of his decision. (R. at 34.)

         10. Plaintiff challenges three elements of the ALJ's decision. Plaintiff first argues that the ALJ erred by not considering Plaintiff's TMJ, vertigo, ear pain, and hearing loss as severe impairments at Step Two of the five-step analysis. A “severe impairment” is “any impairment or combination of impairments which significantly limits [a claimant's] physical or mental ability to do basic work activities, ” including understanding and carrying out simple instructions and responding appropriately to others in usual work situations. 20 C.F.R. § 404.1520(c); § 404.1521. An ALJ is required to identify all impairments supported by substantial evidence at Step Two, in order to avoid “prejudic[ing] the claimant at later steps in the sequential evaluation process.” Lowe v. Colvin, No. 6:15-CV-06077(MAT), 2016 WL 624922, at *3 (W.D.N.Y. Feb. 17, 2016) (internal quotation omitted). “Any error in failing to identify a severe impairment, however, is harmless if that impairment is specifically considered during the subsequent steps.” Morales v. Colvin, No. 13-CV-550S, 2014 WL 4829351, at *4 (W.D.N.Y. Sept. 29, 2014) (citing Reices-Colon v. Astrue, 523 F. App'x 796, 798 (2d Cir. 2013) (finding an alleged Step Two error harmless because the ALJ considered the impairments found non-severe during subsequent steps)); see also Diakogiannis v. Astrue, 975 F.Supp.2d 299, 311-12 (W.D.N.Y. 2013) (“[a]s a general matter, an error in an ALJ's severity assessment with regard to a given impairment is harmless when it is clear that the ALJ considered the claimant's impairments and their effect on his or her ability to work during the balance of the sequential evaluation process”) internal quotations and punctuation omitted)).

         Although the ALJ did not identify TMJ as a severe impairment at Step Two, he did find Plaintiff's headaches to be a severe impairment and considered them throughout the remainder of the assessment. (R. at 27.) Other than headaches, the only other documented symptom of Plaintiff's TMJ is an audible clicking sound noted by Dr. Dave, a consulting examiner. (R. at 316.) Because Plaintiff does not argue that clicking noise limited his ability to perform work activities, and because the limitations arising from Plaintiff's TMJ-induced headaches were properly incorporated into the RFC, there was no error in not specifically naming TMJ as a severe impairment at Step Two. Zabala v. Astrue, 595 F.3d 402 (2d Cir. 2010) (remand is not necessary when there is no reasonable likelihood that an ALJ's examination of the same evidence would change the RFC determination); see generally Paz v. Comm'r of Soc. Sec., No. 14-cv-6885, 2016 WL 1306534, at *13 (E.D.N.Y. Mar. 31, 2016) (remand not warranted despite ALJ's failure to recognize a ...

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