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Antosh v. Colvin

United States District Court, W.D. New York

April 5, 2017

CAROLYN W COLVIN, Acting Commissioner of Social Security, Defendant.

          For Plaintiff: Kenneth R. Hiller, Esq. Justin M. Goldstein, Esq. Law Offices of Kenneth Hiller, PPLC

          For Defendant: Emily Maxine Fishman, Esq. Social Security Administration Office of General Counsel Kathryn L. Smith, A.U.S.A. United States Attorney's Office


          CHARLES J. SIRAGUSA United States District Judge.


         This case is before the Court on cross-motions for a judgment on the pleadings. Pl.'s Notice of Motion, Oct. 31, 2016, ECF No. 11; Def.'s Notice of Motion, Dec. 1, 2016, ECF No. 12. Plaintiff seeks reversal of the Commissioner's decision denying disability insurance benefits to her. After reviewing the papers and hearing oral argument, the Court grants Plaintiff's motion, in part, and denies the Commissioner's application.


         Plaintiff applied for supplemental security income benefits on December 12, 2012. She alleged that her disability began on May 11, 1968.[1] R. 149-55. The Commissioner administratively denied her application on June 7, 2013, and she requested, and was granted, a hearing before an Administrative Law Judge (“ALJ”) via video teleconference on August 5, 2014. R. 65-70, 82-84. Following the hearing, the ALJ denied benefits. R. 10-20. The ALJ's denial became the final decision of the Commissioner when, on December 23, 2015, the Appeals Counsel denied Plaintiff's request for review. R. 1-5. She filed this action on February 19, 2016. Compl., ECF No. 1.

         Vocational Background

         At the time of her application for benefits, Plaintiff was 44 years old. R. 18. She has a high school education, as well as two years of college (completed in 1989), and is able to communicate in English. R. 19, 178. She testified she has two Associate's degrees, one in hotel and hospitality, and the other in computer programming. R. 31. She reported working as a cashier at a grocery store from 1986 until 1988, working as a nurse's aide in a nursing home from 1990 until 1992, and working in customer service in the medical field from 2004 until 2008. R. 178. She reported she stopped working on February 1, 2008, because of her condition. R. 177.

         Medical History

         Plaintiff listed fourteen medications on her Disability Report (undated). R. 180. The medications treat anxiety, bipolar disorder, irritable bowel syndrome, depression, migraines, nausea, cholesterol, asthma, pain and mental illness. Id. She alleges disability based on bipolar disorder, depressive disorder, asthma disorder, allergic rhinitis, migraine disorder, plantar fasciitis and calcaneal spurs, arthritis, osteoporosis, fibromyalgia, irritable bowel syndrome and osteoarthritis. R. 177, 220-21.


         The pertinent statute states, in relevant part, that “[t]he findings of the Commissioner of Social security as to any fact, if supported by substantial evidence, shall be conclusive.” 42 U.S.C. § 405(g). The issue to be determined by this Court is whether the Commissioner's conclusions “are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998). Substantial evidence is defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. For purposes of the Social Security Act, disability is the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to last for a continuous period of not less than 12 months.” 42 U.S.C. § 423(d)(1)(A); Schaal, 134 F.3d at 501.

The SSA has promulgated administrative regulations for determining when a claimant meets this definition. First, the SSA considers whether the claimant is currently engaged in substantial gainful employment. If not, then the SSA considers whether the claimant has a “severe impairment” that significantly limits the “ability to do basic work activities. If the claimant does suffer such an impairment, then the SSA determines whether this impairment is one of those listed in Appendix 1 of the regulations. If the claimant's impairment is one of those listed, the SSA will presume the claimant to be disabled. If the impairment is not so listed, then the SSA must determine whether the claimant possesses the “residual functional capacity” to perform his or her past relevant work. Finally, if the claimant is unable to perform his or her past relevant work, then the burden shifts to the SSA to prove that the claimant is capable of performing “any other work.”

Schaal, 134 F.3d at 501 (citations omitted).


         Plaintiff argues that the ALJ's residual functional capacity (“RFC”) findings, both men-tal and physical, are not supported by substantial evidence and are inconsistent with legal standards, and that the ALJ failed to evaluate Plaintiff's credibility pursuant to appropriate legal standards.

         Mental Residual Functional Capacity

         Plaintiff takes issue with the ALJ's mental RFC determination. The ALJ found that Plaintiff had the mental capacity to perform “simple, routine, and repetitive tasks in an envi-ronment free of fast-paced production requirements with only occasional workplace changes and occasional decision-making and having only occasional contact with the public, co-workers and supervisors.” R. 17. Plaintiff remarks in her memorandum of law that “the ALJ ignores that the only medical opinions from examining sources contain limitations far more limiting than the ALJ's RFC finding, ” and argues that “the ALJ's explanation for her RFC finding clearly shows that the ALJ relied upon her own lay interpretation of the treatment notes over the medical opinions, ” concluding that the ALJ thereby committed legal error. Pl.'s Mem. 17. The Commissioner relies on the report of R. Nobel, Ph.D., which Plaintiff notes was filed before “the two opinions of the examining and treating sources submitted after Dr. No-bel's review of the record . . . .” Pl.'s Reply Mem. 5.

         On March 28, 2013, Kavitha Finnity, Ph.D., examined Plaintiff for the Monroe County Department of Social Services and completed a psychological and intellectual assessment for determination of employability. R. 475-80. Dr. Finnity determined that Plaintiff “is unable to participate in any activities except treatment or rehatilibition…” for an expected dura-tion of six months. Dr. Finnity did not check the box on this form report indicating that “[i]ndividual appears permanently disabled, condition is not expected to improve, and is unable to participate in any activities. SSI referral is recommended based on:.”

         Mehrunnisa Sultana, M.D., of the Jerome Golden Center for Behavioral Health in West Palm Beach, Florida, signed a progress note on January 18, 2013, after examining Plaintiff at 3:00 A.M. as a psychiatry outpatient. The doctor noted that Plaintiff was,

feeling anxious, depressed, overwhelmed. She does not have job and she has a 21 yr old son who is unable to take care of himself.
Ps states that she can not leave the house for most days. Ps states that she cries all of the time for no reason. Ps states that she has anxiety and trouble sleeping.
Ps appears tearful on and off throughout the interview. Ps is oriented X3 and spoke when cued. Ps affect was congruent with mood and presents with fair insight. Ps' thought process was logical and eye contact was very appropriate. Ps' hygiene ...

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