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Mikus v. Berryhill

United States District Court, N.D. New York

April 7, 2017

DEBRA S. MIKUS, Plaintiff,
v.
NANCY A. BERRYHILL, [2] Acting Commissioner of Social Security Administration, Defendant.

          OFFICE OF PETER W. ANTONOWICZ PETER W. ANTONOWICZ, ESQ. Attorney for Plaintiff

          SOCIAL SECURITY ADMINISTRATION SIXTINA FERNANDEZ, ESQ. Attorney for Defendant Office of Regional General Counsel Region II

          MEMORANDUM-DECISION AND ORDER

          DANIEL J. STEWART United States Magistrate Judge

         In this 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”).[3] Based upon the following discussion, the Acting Commissioner's decision denying Social Security benefits is reversed and the matter is remanded for further proceedings.

         I. BACKGROUND

         Mikus, 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.

         Mikus's 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.

         II. DISCUSSION

         A. Standard of Review

         Under 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.

         The 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.

         B. Determination of Disability

         To be 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).

         In 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”)[4] 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. § 404.1520(f).

         Initially, 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).

         C. ALJ Martin's Findings

         As 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.

         ALJ Martin noted initially that, for DIB purposes, Mikus met the insured status requirements of the Social Security Act through September 30, 2016.[5] 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.

         D. Plaintiff's Contentions

         In 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.

         1. Step Two - ...


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