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Doner v. Comm'r of Soc. Sec.

United States District Court, N.D. New York

July 24, 2017

DAVID J. DONER, Plaintiff,
COMM'R OF SOC. SEC., Defendant.

          SCHNEIDER & PALCSIK MARK A. SCHNEIDER, ESQ. Counsel for Plaintiff



          CHRISTIAN F. HUMMEL, United States Magistrate Judge

         Currently before the Court, in this Social Security action filed by David J. Doner (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. § 405(g), are Plaintiff's motion for judgment on the pleadings and Defendant's motion for judgment on the pleadings. (Dkt. Nos. 9, 10.) 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.


         A. Factual Background

         Plaintiff was born in 1961, making him 41 years old at the alleged onset date, and 45 years old at the date of the ALJ's decision. (T. at 30).[1] Plaintiff reported completing school to the ninth or tenth grade without obtaining a GED. (Id.) Plaintiff has past relevant work as a medium-to-heavy equipment operator and logger. (Id. at 31). Plaintiff stopped working in July 2009. (Id.) Generally, Plaintiff alleges disability consisting of diabetes, neuropathy, heart attack, sleep apnea, depression, and asthma. (Id. at 123).

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits on January 25, 2013. (T. at 90-118). Plaintiff's application was initially denied on March 28, 2013, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). (T. at 48-50; 56-57). Plaintiff appeared at a video hearing before ALJ Carl E. Stephan on May 22, 2014. (Id. at 27-41). On July 31, 2014, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (Id. at 14-23)[2] On July 18, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Id. at 1-4, 9.)

         C. The ALJ's Decision

         Applying the five-step disability sequential evaluation, the ALJ determined that Plaintiff was insured for disability benefits under Title II until March 31, 2007. (T. 16.) The ALJ also found that Plaintiff had not engaged in substantial gainful activity from the alleged onset date of December 31, 2002 until the date last insured. (Id.) At step two, the ALJ found that cervical spine disorder was a severe impairment for the applicable period between December 31, 2002 and March 31, 2007. (Id. at 16-18.) At step three, the ALJ found that Plaintiff's severe impairments did not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (Id. at 18.) More specifically, the ALJ considered Listing 1.00 (musculoskeletal system). (Id.) Prior to reaching step four, the ALJ concluded that, during the relevant period, Plaintiff had the residual functional capacity (“RFC”) to perform “the full range of light work as defined in 20 C.F.R. § 404.1567(b).” (T. 19.) At step four, the ALJ found that the above RFC prevented Plaintiff from performing his past relevant work, but that there “were jobs that existed in significant numbers in the national economy that the plaintiff would have performed.” (Id. at 22.) Thus, the ALJ found that Plaintiff was not disabled pursuant to the Medical Vocational Guidelines. (Id. at 22-23.)

         D. Arguments

         Plaintiff argues that the ALJ failed to fully develop the record. (Dkt. No. 9, at 9-11 [Pl. Mem. of Law].) Specifically, Plaintiff argues that the ALJ erred in failing to seek his medical records related to his Worker's Compensation claim, and in failing to instruct Plaintiff's non-attorney representative to obtain those missing records. (Id. at 11) Plaintiff further argues that he was not adequately represented at the hearing by his non-attorney representative because there was no evidence that the hearing representative had the training and qualifications to act in that capacity, and the ALJ did not question her regarding her qualifications. (Id. at 12-14) Plaintiff argues that, because of this, the Court should treat Plaintiff as having been unrepresented and hold the ALJ to the heightened standard applicable to pro se claimants. (Id. at 14) Plaintiff also contends that the ALJ's credibility determination was unsupported by clear and convincing evidence. (Id. at 14-16) Plaintiff argues that the ALJ erred in relying on records from after the date last insured and in making a credibility determination without a fully-developed medical record. (Id. at 15-16) Finally, Plaintiff argues that he is disabled by his morbid obesity in combination with his other impairments, and that the ALJ failed to properly and fully consider Plaintiff's morbid obesity as a severe impairment or in combination with his other impairments. (Id. at 16-18)

         Defendant argues that the ALJ properly developed the record. (Dkt. No. 10, at 4-9 [Def. Mem. of Law].) In response to Plaintiff's second argument, Defendant argues that Plaintiff should not be treated as a pro se claimant because Plaintiff's non-attorney representative provided adequate representation. (Id. at 5-6) Defendant also argues that Plaintiff's objection to his non-attorney representative's representation at the hearing is moot because Plaintiff's current representative had the opportunity to submit to the Appeals Council any evidence he believed was missing from the record. (Id. at 7) In response to Plaintiff's first argument, Defendant argues that there was no further duty for the ALJ to develop the record because Plaintiff did not identify any gap in the record, and the record indicates that the Agency attempted to obtain more information from Plaintiff regarding his treating sources that was never provided. (Id. at 7-9)

         Second, Defendant argues that the new evidence submitted with Plaintiff's memorandum does not warrant remand because Plaintiff did not show good cause for failing to submit the evidence at an earlier stage. (Id. at 9-11) Defendant further argues that many of the reports in this evidence proffered by Plaintiff are not new, would not have influenced the Commissioner to decide differently, or were not relevant because it related to a treatment outside of the period at issue. (Id. at 10-11) Third, Defendant argues that the ALJ's credibility finding is supported by substantial evidence, noting that the ALJ cited to evidence that Plaintiff worked throughout the relevant period as a heavy equipment operator, that one of his treating physicians consistently opined that Plaintiff was not disabled, that the medical records did not support his allegations of disability, and that treatment for his impairments was routine. (Dkt. No. 10, at 11-14 [Def. Mem. of Law].) Defendant also argues that the ALJ did not rely on evidence from after the date last insured to make his credibility determination, but rather on notes from a treating source during the relevant period. (Id. at 13-14) Finally, Defendant argues that the ALJ properly considered Plaintiff's obesity, noting that the ALJ considered it at step two when assessing severity insofar as he explicitly indicated that he considered Plaintiff's obesity pursuant to SSR 02-1p. (Id. at 14-15). Defendants contend that because there was no apparent evidence to support specific functional limitations as a result of Plaintiff's obesity. (Id.)


         A. Standard of Review

         A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). “Substantial evidence” is evidence that amounts to “more than a mere scintilla, ” and has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 400 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

         “To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained “even where substantial evidence may support the Plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

         B. Standard to Determine Disability

          “Every individual who is under a disability shall be entitled to a disability . . . benefit . . . .” 42 U.S.C. § 423(a)(1). Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months.” Id. § 423(d)(1)(A). A medically-determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. Id. § 423(d)(2)(A). Such an impairment must be supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is “based [upon] objective medical facts, diagnoses or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience.” Ventura v. ...

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