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Columbel v. Commissioner of Social Security

United States District Court, N.D. New York

July 26, 2017

BILLY G. COLUMBEL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          OFFICE OF PETER M. HOBAICA, LLC Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II, Counsel for Defendant

         OF COUNSEL:

          B. BROOKS BENSON, ESQ. EMILY M. FISHMAN, ESQ.

          MEMORANDUM-DECISION AND ORDER

          CHRISTIAN F. HUMMEL, United States Magistrate Judge

         Currently before the Court, in this Social Security action filed by Billy G. Columbel (“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 cross-motion for judgment on the pleadings. (Dkt. Nos. 11, 12.) 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.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1958, making him 42 years old at the alleged onset date and date last insured. (T. at 126).[1] Plaintiff reported obtaining his GED in 1976. The ALJ found he has past relevant work as a taxi driver and refrigeration mechanic helper. Generally, Plaintiff alleges disability consisting of a stroke with partial paralysis of his left side as well as pain in his back and arm. (Id. at 60).

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits on August 16, 2013. Plaintiff's application was initially denied on October 17, 2013, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). (T. at 64-66, 70). Plaintiff appeared at a video hearing before ALJ Roxanne Fuller on July 14, 2014. (Id. at 27-58). On November 7, 2014, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (Id. at 12-23.) On April 26, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (Id. at 1-3.)

         C. The ALJ's Decision

         Applying the five-step sequential evaluation, the ALJ found that Plaintiff was insured for benefits under Title II of the Social Security Act until December 31, 2000. (T. 14.) The ALJ found that Plaintiff did not engage in substantial gainful activity during the period between the alleged onset date of March 21, 2000, and the date last insured. (Id.) At step two, the ALJ concluded that Plaintiff's status-post cerebrovascular accident (“CVA”), dysthymic disorder, and substance abuse were severe impairments. (Id.) At step three, the ALJ determined 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 14-15.) More specifically, the ALJ considered Listings 4.00 (cardiovascular system), 12.04 (mood disorders), and 12.09 (substance addiction disorders). (Id.) Before reaching step four, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform

sedentary work as defined in 20 CFR 404.1567(a) with the following restrictions: occasional climb ramps or stairs; occasional climb ladders, ropes, and scaffolds; frequent reaching and overhead reaching with the left dominant arm; frequent handling objects, that is gross manipulation with the left dominant hand; frequent fingering objects, that is fine manipulation with the left dominant hand; occasional exposure to moving mechanical parts; occasional operating a motor vehicle; occasional exposure to unprotected heights; able to perform simple, routine, repetitive tasks.

(Id. at 16.) At step four, the ALJ found that the above RFC prevented Plaintiff from performing any of his past relevant work, and that ALJ found that Plaintiff remained able to perform a significant number of jobs in the national economy, including document preparer, final assembler of optical goods, and addresser. (Id. at 21-22.) Thus, the ALJ concluded that plaintiff was not under a disability at the relevant time period.

         D. Arguments

         Generally, Plaintiff asserts six arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ failed to consider the opinion from Plaintiff's treating physician indicating he met Listing 11.04 and failed to appropriately consider Listing 11.04 at all when assessing whether the effects of Plaintiff's CVA were medically disabling. (Dkt. No. 11, at 14-17 [Pl. Mem. of Law].) Plaintiff argues that it is impossible for this Court to determine whether the ALJ's adverse Listing of Impairments finding is supported by substantial evidence based on the ALJ's lack of clear explanation. (Id. at 15).

         Second, Plaintiff argues that the ALJ failed to afford controlling weight to the treating physician's opinion or to provide good reasons for failing to adopt the less-than-sedentary restrictions contained in that opinion. (Dkt. No. 11, at 17-19 [Pl. Mem. of Law].) Plaintiff argues that, in weighing the treating physician's opinion, the ALJ improperly ignored evidence contrary to her conclusion. (Id. at 18-19) Plaintiff additionally argues that the ALJ erred in finding that Plaintiff's severe mental impairment was dysthymic disorder, rather than depression. (Id. at 19-20). In addition, he argues that the ALJ erred in failing to re-contact Dr. Reddy to obtain an opinion regarding Plaintiff's mental functioning. (Id.)

         Third, Plaintiff argues that the ALJ improperly substituted her own lay opinion for that of a medical source because there was no opinion or medical evidence to support the RFC for a range of sedentary work. (Dkt. No. 11, at 20-21 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ failed to indicate what evidence she relied on when determining that Plaintiff remained able to perform a range of sedentary work, and failed to make specific functional findings, such as the amount of time Plaintiff was able to sit, stand, and walk. (Id. at 22-23) Fourth, Plaintiff argues that the ALJ failed to provide sufficient reasons for finding his allegations were not entirely credible. (Id. at 21-22). Fifth, Plaintiff argues that the ALJ erred in relying on the vocational expert's testimony that Plaintiff remained able to do a significant number of other work in the national economy because the hypothetical used to elicit that testimony did not contain all of the limitations opined by Plaintiff's treating physician. (Dkt. No. 11, at 23-24 [Pl. Mem. of Law].) Finally, Plaintiff argues that the ALJ erred in failing to address his request that his prior applications be re-opened. (Id. at 24-25)

         In response to Plaintiff's second argument, Defendant argues that the ALJ properly rejected the treating physician's opinion because that physician did not treat Plaintiff until 2010 (ten years after the date last insured) and therefore would not have been able to render an opinion based on personal knowledge regarding Plaintiff's functioning during the relevant period in 2000. (Dkt. No. 12, at 5-6 [Def. Mem. of Law].) Defendant also argues that the ALJ appropriately rejected this opinion because it was inconsistent with the evidence of mental and physical functioning from the relevant period, as the ALJ discussed in the decision. (Dkt. No. 12, at 7-9 [Def. Mem. of Law].) Defendant argues that the ALJ therefore gave good reasons for rejecting this opinion and relying instead on the medical evidence, and that the evidence Plaintiff contends the ALJ ignored was merely Plaintiff's subjective reports that the ALJ appropriately found were not credible. (Dkt. No. 12, at 9 [Def. Mem. of Law].)

         Second, in response to Plaintiff's first argument, Defendant argues that the ALJ was correct in finding that Plaintiff did not meet any Listing despite the treating physician's form indicating findings suggestive of Listing 11.04. (Dkt. No. 12, at 11-12 [Def. Mem. of Law].) Defendant argues also that omission of explicit discussion of Listing 11.04 does not warrant remand because the ALJ conducted a detailed discussion of the relevant medical evidence related to Plaintiff's CVA that demonstrates why Plaintiff did not meet that Listing. (Id.)

         Third, in response to Plaintiff's fourth argument, Defendant argues that the ALJ properly found Plaintiff's allegations not entirely credible because the ALJ discussed substantial medical evidence that was inconsistent with those allegations from the relevant period, the limited course of treatment for his post-stroke symptoms, cancellations of mental health appointments during the relevant period, and Plaintiff's activities of daily living that were inconsistent with his alleged level of limitation. (Dkt. No. 12, at 12-14 [Def. Mem. of Law].)

         Fourth, in response to Plaintiff's second argument, Defendant argues that the ALJ had no legal duty to re-contact Dr. Reddy for a mental functional assessment, noting that 20 C.F.R. § 404.1512 was amended in 2012 to make the duty to re-contact treating physicians more discretionary. Further, defendant contends that Dr. Reddy's treatment notes failed to show any signs or symptoms which would give rise to a gap in the record that would require the ALJ to obtain an opinion prior to making the mental RFC determination. (Dkt. No. 12, at 15-16 [Def. Mem. of Law].)

         Fifth, in response to Plaintiff's third argument, Defendant argues that the ALJ was not obligated to rely on a medical source opinion when assessing the RFC, and that there was no error in her failure to explicitly discuss every exertional function in the RFC. (Dkt. No. 12, at 16-19 [Def. Mem. of Law].) Defendant argues that the medical and other evidence was sufficient for the ALJ to determine that Plaintiff remained able to perform a range of sedentary work, and that the ALJ was not required to rely on the treating physician's contrary opinion because it was inconsistent with the evidence from the relevant time period. (Dkt. No. 12, at 16-18 [Def. Mem. of Law].)

         Sixth, in response to Plaintiff's fifth argument, Defendant argues that the ALJ properly relied on the vocational expert's testimony because she included in the hypotheticals all of the limitations that were supported by the evidence, and because she was not required to account for the unsupported limitations contained in the treating physician's opinion. (Dkt. No. 12, at 19-20 [Def. Mem. of Law].)

         Seventh, in response to Plaintiff's sixth argument, Defendant argues that the implicit denial of Plaintiff's request to re-open his prior application is not subject to judicial review except in cases where the ALJ constructively re-opened the case or where the claimant has been denied due process. (Dkt. No. 12, at 20-21 [Def. Mem. of Law].) Defendant contends that Plaintiff failed to demonstrate a denial of due process because the medical evidence does not support a finding that Plaintiff was so incapacitated following the previous decision such that he lacked the ability to exercise his right of appeal, and, thus, cannot demonstrate denial of due process. (Id.)

         II. RELEVANT LEGAL STANDARD

         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, 401, 91 S.Ct. 1420, 1427 (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

         The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. 20 C.F.R. §§ 404.1520, 416.920. The Supreme Court has recognized the validity of this sequential evaluation process. Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987).

         The five-step process is as follows:

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 is 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; the [Commissioner] presumes that a claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity. 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 could perform. Under the cases previously discussed, the claimant bears the burden of the proof as to the first four steps, while the [Commissioner] must prove the final one.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin,758 F.3d 146, 150 (2d Cir. 2014). “If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further.” ...


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