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Swain v. Colvin

United States District Court, W.D. New York

June 8, 2017



          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented by counsel, plaintiff Samantha Swain (“plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the “Commissioner” or “defendant”) denying her applications for disability insurance benefits (“DIB”) and supplemental security income (“SSI”). The Court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, the Commissioner's motion is granted and plaintiff's motion is denied.

         II. Procedural History

         Plaintiff initially filed her application for DIB on March 19, 2008. Administrative Transcript (“T.”) 214-16. Plaintiff's application was denied, and she requested a hearing before an administrative law judge (“ALJ”), which occurred on May 10, 2010, before ALJ Marilyn D. Zahm. T. 69-70, 839-74. On June 1, 2010, ALJ Zahm issued a decision in which she found plaintiff not disabled as defined in the Act. T. 98-117. Plaintiff requested review by the Appeals Council, and the Appeals Council subsequently vacated the ALJ's decision and remanded the matter for further proceedings. T. 133-137. A second hearing was held before ALJ Zahm on August 15, 2011. T. 874-901. ALJ Zahm issued a second decision finding plaintiff not disabled on September 14, 2011. T. 28-47. Plaintiff again requested Appeals Council review, and the Appeals Council remanded the matter for additional administrative proceedings a second time. T. 193-197. In its second remand order, issued on October 9, 2012, the Appeals Council instructed the ALJ on remand to “address all the relevant medical evidence, including [a] Match 25, 2011 consultative examination.” T. 196.

         On March 27, 2013, a third hearing was conducted before ALJ Bruce R. Mazzarella. T. 902-61. Pursuant to the Appeals Council's order, ALJ Mazzarella reopened plaintiff's previously denied May 30, 2007 application for DIB and consolidated plaintiff's subsequent January 28, 2011 applications for DIB and SSI. T. 17. On June 20, 2013, ALJ Mazzarella issued a decision finding plaintiff not disabled from August 24, 2006 (her alleged disability onset date) through the date of the decision. T. 14-27. The Appeals Council denied plaintiff's request for review on August 25, 2014, rendering ALJ Mazzarella's decision the final determination of the Commissioner. T. 7-9. Plaintiff subsequently commenced this action.

         III. The ALJ's Decision

         Initially, the ALJ found that Plaintiff met the insured status requirements of the Act through March 31, 2012. T. 20. At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged in substantial gainful activity since August 24, 2006, the alleged onset date. Id. At step two, the ALJ found that plaintiff had the severe impairments of mild degenerative disc disease of the back and neck, obesity, diabetes mellitus with possible mild neuropathy in feet, and asthma/bronchitis. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. Id.

         Before proceeding to step four, the ALJ found that plaintiff retained the residual functional capacity (“RFC”) to: lift and carry up to 20 pounds occasionally and 10 pounds frequently; sit for an 8-hour workday with normal breaks and meal periods; stand and/or walk for an 8-hour workday with normal breaks and meal periods; occasionally stoop, crouch, kneel, or climb stairs; not work in unventilated areas that contain large concentrations of dusts, fumes, gasses or vapors; and not use ladders or scaffolds, work around unprotected heights, or operate dangerous or moving machinery. T. 21. At step four, the ALJ found that plaintiff was capable of performing her past relevant work as a cashier/checker. Accordingly, the ALJ found that plaintiff was not disabled.

         IV. Discussion

         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         A. Consideration of March 25, 2011 Consultative Examination

         On March 25, 2011, Plaintiff underwent a consultative examination with Dr. Nikita Dave. T. 784-89. Plaintiff told Dr. Dave that she has been in a motor vehicle accident in 2006 resulting in low back pain and right shoulder pain, and that her low back pain was worsened by a subsequent motor vehicle accident in 2009. T. 784. Plaintiff reported being in constant pain, which was exacerbated by twisting and prolonged sitting. Id. Plaintiff further reported suffering from insulin-dependent diabetes, “arrythmia, ” vitamin D deficiency, and insomnia. T. 784-85. Plaintiff reported shopping once per week, cooking twice per week, bathing and dressing as needed, and watching television. T. 785. On physical examination, plaintiff's gait was unremarkable and she could walk on her heels and toes without difficulty. T. 786. Plaintiff squatted halfway, complaining of back and thigh pain, and had moderately antalgic transfers. Id.

         Dr. Dave observed that plaintiff's musculoskeletal and neurological examination was “abnormal” because plaintiff took a deep breath before each movement and stated that she would “do it if you want me to.” T. 786. Dr. Dave described these actions as “interesting” and opined that plaintiff had “questionable motivation” and was “perhaps [seeking] to demonstrate her current complaints, making her perhaps ‘dizzy.'” Id. Plaintiff had no tenderness or scoliosis. Id. She had a slightly increased thoracic kyphosis, and her lumbar spine range of motion was 3 degrees in extension, 40 to 50 degrees in flexion, 15 degrees in lateral flexion, and 25 degrees in rotation. Id. Plaintiff had midline tenderness in the L1 to L3-L4 area of her lumbar spine and the bilateral ...

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