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Genito v. Commissioner of Social Security

United States District Court, N.D. New York

April 7, 2017

JAMIE L. GENITO, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          CONBOY, MCKAY, BACHMAN & KENDALL, LLP LAWRENCE D. HASSELER, ESQ. Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. DAVID L. BROWN, ESQ. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this Social Security action filed by Jamie L. Genito (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. §§ 405(g), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 10, 14.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is denied, and Defendant's motion for judgment on the pleadings is granted. The Commissioner's decision denying Plaintiff's disability benefits is affirmed, and Plaintiff's Complaint is dismissed.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1979 and was 35 years old at the date of the ALJ decision at issue in this appeal. Plaintiff reported obtaining her GED and had past work manufacturing bowling pins, putting ribbons on boxes, and working the front counter and drive-thru at a fast food restaurant. Generally, Plaintiff alleged disability consisting of pain in her lower back and right hand, bipolar disorder, anxiety disorder, and difficulty concentrating.

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits on April 10, 2006, alleging disability beginning May 17, 2002. Plaintiff's application was denied initially, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”). On August 29, 2008, ALJ Verner R. Love rendered a Fully Favorable decision, finding Plaintiff disabled beginning May 17, 2002. (T. 51-56.) On December 7, 2012, the Agency determined that Plaintiff's disability would cease on December 11, 2012[1] due to medical improvement related to her ability to work, and thus her benefits were discontinued. (T. 57-59.) The cessation was affirmed on May 9, 2013. (T. 60.) Plaintiff timely requested a hearing and subsequently appeared at a video hearing before ALJ Bruce S. Fein on April 18, 2014. (T. 17, 31-47.) On September 23, 2014, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 17-30.) On January 27, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1-3.)

         C. The ALJ's Decision

         Generally, in his decision, the ALJ made the following ten findings of fact and conclusions of law. (T. 19-26.) First, the ALJ found that the comparison point decision (“CPD”)[2] was the August 29, 2008 Fully Favorable ALJ decision. (T. 19.) Second, the ALJ found that, at the time of the CPD, Plaintiff had medically determinable impairments of major depressive disorder, personality disorder, and substance-dependence disorder, all of which limited her to the performance of work at all exertional levels with limitations to unskilled work consisting of only simple, routine, repetitive tasks performed in a low-stress environment with no production quotas and infrequent changes, that does not require the ability to make appropriate decisions or attend to a regular schedule, and that requires no more than minimal contact with supervisors, co-workers, and the public. (Id.) Third, the ALJ found that, as of December 11, 2012 (the date her disability ended), Plaintiff was not engaging in substantial gainful activity. (Id.) Fourth, the ALJ found that, as of December 11, 2012, Plaintiff had medically determinable severe impairments of lumbar disorder, mood disorder, depressive disorder, generalized anxiety disorder, and polysubstance abuse in remission. (Id.) Fifth, the ALJ found that Plaintiff's severe impairments, alone or in combination, did not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 20-21.) More specifically, the ALJ considered Listings 1.04 (disorders of the spine), 12.04 (affective disorders), 12.06 (anxiety-related disorders), and 12.09 (substance addiction disorders). (Id.)

         Sixth, the ALJ found that medical improvement had occurred as of December 11, 2012. (T. 21.)

         Seventh, the ALJ found that, based on consideration of all impairments present since December 11, 2012, Plaintiff had the residual functional capacity (“RFC”) to perform

medium work as defined in 20 C.F.R. § 404.1567(c), which involves lifting and/or carrying 50 pounds occasionally and 25 pounds frequently, standing and/or walking for six hours in an eight-hour workday, sitting for six hours in an eight-hour workday, and frequent bending. She is capable of simple, routine, repetitive tasks in a low stress setting, which is defined as occasional decision-making and occasional judgment required.

(T. 22.) Eighth, the ALJ found that Plaintiff's medical improvement was related to the ability to work because it resulted in an increase in her residual functional capacity. (T. 25.) Ninth, the ALJ found there was insufficient information to determine Plaintiff's past relevant work. (T. 25.) Tenth, and finally, the ALJ determined that there were jobs that exist in significant numbers in the national economy that Plaintiff could perform. (T. 25-26.)

         D. The Parties' Briefings on Their Cross-Motions

         Generally, Plaintiff asserts five arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues that the ALJ should not have conducted the hearing and rendered a decision without insisting that Plaintiff obtain representation. (Dkt. No. 10, at 15-17 [Pl.'s Mem. of Law].) More specifically, Plaintiff argues that, due to her ten-and-a-half year period of disability based on mental impairments, it should have been obvious to the ALJ that Plaintiff would not be able to represent herself effectively despite Plaintiff's express desire to proceed without representation. (Id.) Plaintiff argues that it was not sufficient for the ALJ to clearly advise Plaintiff of her right to seek counsel prior to proceeding with the hearing because he did not advise her of the benefits of having representation and did not advise her that she should obtain representation. (Id.) Plaintiff argues that the ALJ's failure to ensure Plaintiff had representation was harmful error because the lack of representation led to an under-development of the facts at the hearing. (Id.)

         Second, Plaintiff argues that the ALJ failed to properly apply the technique for analyzing mental impairments that is mandated by the applicable regulations. (Dkt. No. 10, at 17-20 [Pl. Mem. of Law].) More specifically, Plaintiff argues that the ALJ was required to apply a five-step analysis in assessing Plaintiff's mental impairments, but failed to properly apply the second and third steps, which involved (1) rating the degree of Plaintiff's functional limitation based on the extent to which her impairments interfere with her ability to function independently, appropriately, effectively, and on a sustained basis, and (2) rating the degree of functional limitation with respect to the four enumerated areas of activities of daily living, social functioning, concentration, persistence, and pace, and episodes of decompensation. (Id.)

         Third, Plaintiff argues that, when analyzing Plaintiff's mental impairments, the ALJ committed error in relying on opinions from sources who did not have the ability to review the whole record. Plaintiff additionally argues that the ALJ failed to properly review the record, instead engaging in an improperly selective review of the evidence that supported a finding of non-disability. (Dkt. No. 10, at 18-20 [Pl. Mem. of Law].) Similarly, in another section of her brief, Plaintiff argues that the ALJ failed to properly develop the record because, although he obtained additional medical records after the hearing, he did not follow up with any physicians for clarification or allow any medical professional or expert to review the entire record. (Dkt. No. 10, at 20 [Pl. Mem. of Law].)

         Fourth, Plaintiff argues that the ALJ was not qualified to review the mental health treatment records to determine the effect that Plaintiff's impairments imposed on her functional abilities without the assistance of medical professionals. (Dkt. No. 10, at 20-22 [Pl. Mem. of Law].) More specifically, Plaintiff argues that the ALJ did not have the medical expertise to translate Dr. Noia's opinion that Plaintiff would have difficulties dealing with stress into specific work-related limitations, and that the ALJ should have re-contacted Dr. Camillo and Dr. Noia to ask them whether they believed Plaintiff could work. (Id.)

         Fifth, and finally, Plaintiff argues that the ALJ should have consulted a vocational expert (“VE”) at the final step of the continuing disability analysis because, based on Dr. Noia's opinion that Plaintiff appeared to have some difficulty dealing with stress, “[i]t is reasonable to infer that [Plaintiff's] mental impairments would result in excessive absenteeism and time off-task in a competitive work setting, ” as well as an inability “to perform at a consistent pace without an unreasonable number and length of rest periods and any stress whatsoever would affect Plaintiff's mental health in a negative way, and possibly also with extreme ramifications.” (Dkt. No. 10, at 22-23 [Pl. Mem. of Law].) Plaintiff argues that those non-exertional restrictions were not accounted for by the Medical-Vocational Guidelines and that the ALJ's finding therefore was not supported by substantial evidence.

         Generally, Defendant asserts six counter-arguments in support of her motion for judgment on the pleadings. First, in response to Plaintiff's first argument, Defendant argues that Plaintiff knowingly and effectively waived her right to representation and that the ALJ did everything he was legally bound to do under the applicable regulations to meet his burden to inform Plaintiff of her right to seek and obtain representation. (Dkt. No. 14, at 11-12 [Def. Mem. of Law].)

         Second, in response to Plaintiff's second argument, Defendant argues that the ALJ properly considered Plaintiff's mental impairments according to the analysis required by the regulations for assessing such impairments. (Dkt. No. 14, at 16-18 [Def. Mem. of Law].)

         Third, in response to Plaintiff's third argument, Defendant argues that the ALJ did not have any duty to further develop the record or present more recently submitted evidence to the consultative sources or to re-contact sources for updated opinions because the ALJ possessed a complete medical history on which to base his findings. (Dkt. No. 14, at 12-16 [Def. Mem. of Law].)

         Fourth, in response to Plaintiff's fourth argument, Defendant argues that the ALJ properly evaluated and assigned weight to the medical opinions in the record when assessing the RFC. (Dkt. No. 14, at 18-20 [Def. Mem. of Law].)

         Fifth, Defendant argues that substantial evidence supports the ALJ's finding that there was an improvement in the severity of Plaintiff's mental impairments which resulted in the subsequent lessening of mental restrictions in the RFC assessment. (Dkt. No. 14, at 21 [Def. Mem. of Law].)

         Sixth, and lastly, in response to Plaintiff's fifth argument, Defendant argues that the non-exertional limitations included in the RFC were supported by substantial evidence and that Plaintiff's mental impairments did not impose non-exertional limitations that were of the type or severity that would preclude application of the Medical-Vocational Guidelines as a framework for decision-making.

         II. RELEVANT ...


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