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Reisinger v. Commissioner of Social Security

United States District Court, N.D. New York

May 18, 2017

KURT MELVIN REISINGER, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          CHRISTOPHER CADIN, ESQ., Legal Services of CNY, Attorney for Plaintiff.

          JOSHUA LENARD KERSHNER, Special Asst. U.S. Attorney for Defendant.

          MEMORANDUM-DECISION AND ORDER

          ANDREW T. BAXTER, United States Magistrate Judge.

         This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y.G.O. # 18, in accordance with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 2, 4, 5).

         I. PROCEDURAL HISTORY

         On or about August 29, 2012, plaintiff protectively[1] filed an application for Disability Insurance Benefits (“DIB”) and for Supplemental Security Income (“SSI”), alleging disability beginning December 31, 2010. (Transcript (“T”) 146-52, 153-58, 168). Plaintiff's applications were denied initially on December 5, 2012, and plaintiff requested a hearing. (T. 77-84, 85). The video hearing was held on February 10, 2014 before Administrative Law Judge (“ALJ”) John M. Lischak, during which plaintiff testified. (T. 35-63). The ALJ denied plaintiff's applications in a decision dated August 11, 2014 (T. 17-30), which became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review on November 9, 2015. (T. 1-5).

         II. GENERALLY APPLICABLE LAW

         A. Disability Standard

         To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is “unable 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 twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's

physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

         The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

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 meets or equals the criteria of an impairment 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 . . . . 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 can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents him from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.

         B. Scope of Review

         In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be “more than a scintilla” of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review “ - even more so than the ‘clearly erroneous standard.'” Brault, 683 F.3d at 448.

         “To determine on appeal whether an 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). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

         An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot “‘pick and choose' evidence in the record that supports his conclusions.” Cruz v. Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).

         III. FACTS

         Defense counsel states that he incorporates by reference the summary of the procedural history and the “statement of facts” in plaintiff's brief, “with the exception of any arguments, inferences, or conclusions.” (Def.'s Br. at 1-2) (Dkt. No. 19). Defense counsel further incorporates the procedural history and facts as provided in the ALJ's opinion. (Id. at 2). Rather than reciting all the medical and testimonial evidence at the outset, the court will discuss the relevant details below, as necessary to address the issues raised by plaintiff.

         IV. THE ALJ's DECISION

         After finding that plaintiff had not engaged in substantial gainful activity from the alleged date of onset to the time of the hearing, the ALJ found at step two of the disability analysis, that plaintiff had the following severe impairments: (1) “residuals status post work injury of the low back with herniated discs at several levels and radiculopathy, ” and (2) morbid obesity. (T. 20-24). In addition, the ALJ found that plaintiff's finger injury, neck problems, knee pain, and mental impairment were not “severe” within the meaning of the regulations. (T. 23-24). The ALJ also noted that the non-severe physical impairments were not expected to last for a period of twelve months or more at the requisite level of severity. (Id.)

         At step three of the sequential evaluation, the ALJ found that plaintiff's severe impairments did not meet or equal the severity of a Listed Impairment, notwithstanding plaintiff's argument to the contrary in a letter submitted prior to the hearing. (T. 24-25, 126-29). Specifically, the ALJ considered Listing 1.04 (Disorders of the Spine). (Id.) (citing 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04) (“Listing 1.04").

         At step four, the ALJ found that plaintiff had the RFC to perform a “limited range of sedentary work.” (T. 25). Plaintiff's limitations included frequently lifting and carrying up to ten pounds and occasionally lifting and carrying up to fifty pounds. (T. 25). The ALJ found that plaintiff could stand for a total of thirty minutes at one time without interruption, and he could walk a total of five minutes at one time without interruption. (T. 25-26). Plaintiff could sit for a “total of six hours in an eight hour workday” and could stand and walk for a total of one hour each in an eight hour workday. (T. 26). The ALJ found that plaintiff could occasionally reach overhead and push/pull with his right and left hands, he could frequently reach in all other planes, and he could handle, finger, and feel with both hands. (Id.) Plaintiff could frequently operate foot controls with both feet, could occasionally climb stairs and ramps, stoop, kneel and crouch and could frequently balance. (Id.) However, he could never crawl or climb ladders or scaffolds. (Id.)

         Because of limitations that would prevent plaintiff from performing a full range of sedentary work, the ALJ sent an Interrogatory to a Vocational Expert (“VE”), outlining two hypothetical questions based upon RFC evaluations submitted by Physical Therapist (“PT”) Randy Lehman and Medical Expert, Orthopedic Surgeon Malcolm Brahms. (T. 29-30, 227-33). The VE responded in a report, dated May 21, 2014, that based on the RFC evaluation, and under either hypothetical question proposed by the ALJ, plaintiff could not perform his previous work. (T. 229, 231). However, plaintiff could still perform alternative work that existed in significant numbers in the national economy.[2] (T. 229, 232). Based on the VE's answers, the ALJ found that plaintiff was not under a disability at any time through the date of his decision. (T. 29-30).

         V. ISSUES IN CONTENTION

         Plaintiff advances the following arguments:[3]

(1) Plaintiff's impairments meet or equal the severity of Listing 1.04. (Pl.'s Br. ...

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