United States District Court, N.D. New York
DEBRA S. MIKUS, Plaintiff,
NANCY A. BERRYHILL,  Acting Commissioner of Social Security Administration, Defendant.
OF PETER W. ANTONOWICZ PETER W. ANTONOWICZ, ESQ. Attorney for
SECURITY ADMINISTRATION SIXTINA FERNANDEZ, ESQ. Attorney for
Defendant Office of Regional General Counsel Region II
MEMORANDUM-DECISION AND ORDER
J. STEWART United States Magistrate Judge
action, Plaintiff Debra Mikus moves, pursuant to 42 U.S.C.
§ 405(g), for review of a decision by the Acting
Commissioner of Social Security denying her applications for
Disability Insurance Benefits (“DIB”) and Period
of Disability (“POD”). Based upon the following
discussion, the Acting Commissioner's decision denying
Social Security benefits is reversed and the matter is
remanded for further proceedings.
born on May 19, 1962, filed applications for DIB and POD on
April 14, 2013, claiming an inability to work as of June 9,
2011, due to a variety of ailments, including depression,
fibromyalgia, migraine, and pinched nerve at ¶ 5 and L5.
Dkt. No. 9, Admin. Transcript [hereinafter “Tr.”]
at pp. 20, 36, 153-54, & 169. Mikus graduated high school
and obtained an associate's degree in business
administration. Id. at p. 37 & 185. Her past
work includes administrative clerk, secretary, school
cafeteria cook, and cashier. Id. at p. 19.
disability application was denied on initial review.
Id. at pp. 67, 68-76, & 77-82. On September 25,
2014, a Hearing was held before Administrative Law Judge
(“ALJ”) Lisa B. Martin wherein testimony was
procured from Mikus, who was accompanied by an attorney, and
from Barry J. Brown, a vocational expert (“VE”).
Id. at pp. 32-66. On December 22, 2014, ALJ Martin
issued an unfavorable decision finding that Mikus was not
disabled. Id. at pp. 8-25. On February 1, 2016, the
Appeals Council concluded that there was no basis under the
Social Security Regulations to grant Plaintiff's request
for review, thus rendering the ALJ's decision the final
determination of the Acting Commissioner. Id. at pp.
1-7. Exhausting all of her options for review through the
Social Security Administration's tribunals, Plaintiff now
brings this appeal.
Standard of Review
42 U.S.C. § 405(g), the proper standard of review for
this Court is not to employ a de novo review, but
rather to discern whether substantial evidence supports the
Commissioner's findings and that the correct legal
standards have been applied. See Rivera v. Sullivan,
923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan,
965 F.Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter
alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir. 1987)). Succinctly defined, substantial evidence is
“more than a mere scintilla” of evidence
scattered throughout the administrative record; rather, it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S.
197, 229 (1938); see also Williams ex. rel. Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To
determine on appeal whether an [Administrative Law
Judge'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 ex. rel.
Williams v. Bowen, 859 F.2d at 258.
Administrative Law Judge (“ALJ”) must set forth
the crucial factors supporting the decision with sufficient
specificity. Ferraris v. Heckler, 728 F.2d 582, 587
(2d Cir. 1984). Where the ALJ's findings are supported by
substantial evidence, the court may not interject its
interpretation of the administrative record. Williams ex
rel. Williams v. Bowen, 859 F.2d at 258; 42 U.S.C.
§ 405(g). However, where the weight of the evidence does
not meet the requirement for substantial evidence or a
reasonable basis for doubt exists as to whether correct legal
principles were applied, the ALJ's decision may not be
affirmed. Johnson v. Bowen, 817 F.2d at 986.
Determination of Disability
considered disabled within the meaning of the Social Security
Act, a plaintiff must establish an “inability to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore,
the claimant's physical or mental impairments must be of
such severity as to prevent engagement in any kind of
substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
determining whether a claimant is disabled, the Commissioner
follows a five-step analysis set forth in the Social Security
Administration Regulations. 20 C.F.R. § 404.1520. At
Step One, the Commissioner “considers whether the
claimant is currently engaged in gainful activity.”
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982). If the claimant is engaged in substantial gainful
activity, he or she is not disabled and the inquiry ends. 20
C.F.R. § 404.1520(b). If the claimant is not engaged in
substantial gainful activity, the Commissioner proceeds to
Step Two and assesses whether the claimant suffers from a
severe impairment that significantly limits his or her
physical or mental ability to do basic work activities.
Id. at § 404.1520(c). If the claimant suffers
from a severe impairment, the Commissioner considers at Step
Three whether such impairment(s) meets or equals an
impairment listed in Appendix 1, in Part 404, Subpart P of
the Regulations. Id. at § 404.1520(d). The
Commissioner makes this assessment without considering
vocational factors such as age, education, and work
experience. Berry v. Schweiker, 675 F.2d at 467.
Where the claimant has such an impairment the inquiry ceases
as he or she is presumed to be disabled and unable to perform
substantial gainful activity. Id. If the
claimant's impairment(s) does not meet or equal the
listed impairments, the Commissioner proceeds to Step Four
and considers whether the claimant has the residual
functional capacity (“RFC”) to perform his or
her past relevant work despite the existence of severe
impairments. 20 C.F.R. § 404.1520(e). If the claimant
cannot perform his or her past work, then at Step Five, the
Commissioner considers whether the claimant can perform any
other work available in the national economy. Berry v.
Schweiker, 675 F.2d at 467; 20 C.F.R. §
the burden of proof lies with the claimant to show that his
or her impairment(s) prevents a return to previous employment
(Steps One through Four). Berry v. Schweiker, 675
F.2d at 467. If the claimant meets that burden, the burden
then shifts to the Commissioner at Step Five to establish,
with specific reference to medical evidence, that the
claimant's physical and/or mental impairment(s) are not
of such severity as to prevent him or her from performing
work that is available within the national economy.
Id.; 42 U.S.C. § 423(d)(2)(A); see also
White v. Sec'y of Health and Human Servs., 910 F.2d
64, 65 (2d Cir. 1990). In making this showing at Step Five,
the claimant's RFC must be considered along with other
vocational factors such as age, education, past work
experience, and transferability of skills. 20 C.F.R. §
404.1520(f); see also New York v. Sullivan, 906 F.2d
910, 913 (2d Cir. 1990).
ALJ Martin's Findings
noted above, Mikus and VE Brown testified during the Hearing.
Tr. at pp. 32-66. In addition to such testimony, the ALJ had
Mikus's medical records consisting of treatment reports
and opinions from various treating and/or consulting
physicians. Id. at pp. 239-560.
Martin noted initially that, for DIB purposes, Mikus met the
insured status requirements of the Social Security Act
through September 30, 2016. Id. at pp. 11 & 13.
Using the five-step disability evaluation, ALJ Martin found
that: (1) Mikus had not engaged in any substantial gainful
activity since June 9, 2011, the alleged onset disability
date; (2) she has severe medically determinable impairments,
namely cervical and lumbar spine disorders, fibromyalgia,
hypertension, restless leg syndrome, and obesity; but her
hypothyroidism and depression were not deemed to be severe;
(3) her severe impairments do not meet nor medically equal
any impairment listed in Appendix 1, Subpart P of Social
Security Regulation No. 4; (4) she retains the RFC to perform
the full range of sedentary work with certain limitations,
and, as such, she could not return to any of her prior work;
but, (5) considering her age, education, work experience,
RFC, VE testimony, and using the Medical-Vocational
Guidelines as a framework, Mikus could perform work available
in the national economy and was therefore not disabled.
Id. at pp. 8-25.
support of her appeal, Plaintiff asserts that the ALJ erred
at Step Two when she failed to discuss Plaintiff's
migraine headaches and deem it severe. Dkt. No. 12, Pl.'s
Br., at pp. 7-10. She also asserts that the ALJ failed to
properly analyze the medical evidence and improperly assessed
opinion evidence when she failed to give controlling weight
to the opinions rendered by her treating physicians.
Step Two - ...