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Shepard v. Commissioner of Social Security

United States District Court, N.D. New York

November 15, 2017

JOHN SHEPARD, Plaintiff,

          STEVEN R. DOLSON, ESQ., for Plaintiff

          MICHELLE L. CHRIST, Special Asst. U.S. Attorney for Defendant



         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. General Order No. 18, and 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. 4, 5).


         On October 15, 2012, plaintiff protectively filed an application for Supplemental Security Income (“SSI”) and an application for Disability Insurance Benefits (“DIB”), each alleging disability beginning October 13, 2010. (Administrative Transcript (“T”) at 190-91). The applications were denied initially on March 19, 2013. (T. 110-13, 114-17). Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”), which was held on July 30, 2013.[1] (T. 27-51). On October 7, 2013, ALJ Marie Greener found plaintiff was not disabled. (T. 13-21). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on May 28, 2014. (T. 1-3).

         Plaintiff appealed the Commissioner's final decision to the United States District Court for the Northern District of New York, and on August 14, 2014, the Court reversed the Commissioner's decision by consent of the parties and ordered the plaintiff's case remanded for further proceedings. (T. 1015-19). On October 28, 2014, the Appeals Council remanded the action to ALJ Greener with instructions for further proceedings. (T. 1020-25). ALJ Greener held a new hearing on April 6, 2015, at which plaintiff and Vocational Expert (“VE”) David Festa testified. (T. 944-87). On June 4, 2015, ALJ Greener found that the plaintiff was not disabled. (T. 893-903). The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review of ALJ Greener's decision on September 19, 2016. (T. 883-86).


         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 her 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

         Plaintiff was 52 years old at the time of the most recent hearing before ALJ Greener. (T. 949). He is 5'7" tall, and at the time of the hearing, weighed approximately 245 pounds. (Id.) Plaintiff lived with his sister. (Id.) Plaintiff is a high school graduate, but did not attend college. (T. 950). His past relevant work was as a supervisor for a waste management company. (Id.) His work involved teaching other employees how the system worked and how to properly recycle materials. (Id.) Plaintiff testified that occasionally, he would have to lift more than 20 pounds, but he could alternate sitting and standing. (T. 951-52). Plaintiff testified that he could sit down and watch the other employees work. (T. 952). Plaintiff worked at this job for approximately three years. (T. 951).

         Plaintiff stated that he could not perform his past relevant work because it would bother his back. (T. 952). Although he could sit down when he wanted to, he was also responsible for walking around to each station to make sure the other employees were performing their jobs correctly. (Id.) Plaintiff also described the jobs that he performed prior to the waste management supervisor. (T. 953-56). Plaintiff worked as a baker and a crew leader at Dunkin Donuts, a hardwood floor installer and refinisher, and a metal cutter for Morris Manufacturing. (T. 954-56). Each of these occupations contained some function that plaintiff was incapable of performing at the time of the hearing. (Id.) In addition to having lifting requirements that exceeded plaintiff's current ability, the metal cutter job would be too “much strain on [his] breath.” (T. 956). Plaintiff testified that he quickly became short of breath. (Id.) Later during the hearing, plaintiff testified that his waste management job required him to walk up and down steps, which he would be unable to do because he would be out of breath. (T. 968). Plaintiff stated that he would “run out” of breath in about six steps. (T. 969). The Dunkin Donuts job was too strenuous because plaintiff was responsible for putting all the bagels and donuts up on shelves, and his current condition would force him to stop too often to be able to complete the work. (Id.) Plaintiff testified that he could not do the Morris Manufacturing job due to the chemicals triggering his breathing problems. (Id.)

         The ALJ then questioned plaintiff at length about his “shortness of breath.” (T. 957-59). Plaintiff stated that this condition was getting worse. (T. 957). The ALJ asked plaintiff about the medication that he took for his breathing problem. (T. 958). Plaintiff testified that he used four inhalers. (T. 956). Plaintiff mentioned inhalers, Albuterol and Spiriva, in addition to a capsule and another “little puffer.” (T. 958, 973). Plaintiff testified that his shortness of breath was triggered by walking, sitting too long, and lifting. (Id.)

         Plaintiff then testified that he was going to Syracuse Orthopedic Specialists (“SOS”) for his back pain. (T. 959). Plaintiff stated that the physical therapy, aquatic therapy, and nerve block injections were not successful in lessening the pain. (T. 959-60) He did receive some relief by using a Transcutaneous Electrical Nerve Stimulation (“TENS”) Unit. (Id.) Plaintiff stated that the TENS Unit relaxed him and relieved the pain for a little while, but when he took the unit off, the pain came right back. (T. 960). Plaintiff also testified that he took “a lot of pills” for his back, his gout, and his diabetes. (T. 960-61).

         Plaintiff testified that any activity could make his back hurt, and that he was unable to play basketball or even walk around the block without pain. (T. 961). Plaintiff also stated that he could not sit or stand too long or walk too far. (T. 962). The ALJ noticed that plaintiff was using a cane, and plaintiff stated that he had been using the cane since he quit working. (Id.) The plaintiff testified that he still drank alcohol “occasionally, ” but was not receiving treatment for any psychological disorder or mental illness. (Id.)

         Plaintiff stated that he spent his days at home watching DVDs. (T. 963). He could cook “little things” and went out with his sister to buy groceries, but did not carry any of the bags. (Id.) Although plaintiff stated that he did not have “trouble” cooking, he stated that he alternated between sitting and standing when he cooks. (T. 965). Plaintiff stated that he could only stand for 10 or 15 minutes before he had to sit down and rest. (Id.) If he had to chop anything, he sat down to do it. (Id.) Plaintiff testified that he only spent a total of 45 minutes cooking. (Id.) Plaintiff visited friends if they came and pick him up, and he played a lot of chess and watched movies with his friends. (T. 964).

         Plaintiff testified that after about 10 or 15 minutes of doing anything, he had to sit down, relax, and sometimes, put on his TENS Unit. (T. 966). He used the TENS Unit every night, and he took it off when he went to bed. (Id.) Plaintiff testified that he could only sit for a total of 15 to 20 minutes at a time, then he had to get up, and try to “walk it off a little bit, ” before he could sit back down. (T. 967). The “whole process” took about 10 minutes. His most comfortable position was laying on his side, but he testified that he did not lie down all day because he could “always get up and just move around” if he got uncomfortable. (Id.) Plaintiff testified that he still smoked about three cigarettes per day. (T. 967-68).

         Plaintiff testified that he used his cane at all times, and he needed it to maintain his balance while standing. (T. 970). He testified that he even went to the hospital with his cane. (Id.) Plaintiff stated that his doctor gave him a new cane when he was at the hospital, and his knees buckled “and almost gave out.” (Id.) Plaintiff testified that he could shower, but that it was a “slower process.” (Id.) Plaintiff kept his shoes tied and used a long shoe horn to put them on because he could not bend at the waist due to the pain in his back. (Id.)

         Plaintiff stated that he did not lift anything over 10 pounds, and that even a gallon of milk was too heavy for him to lift. (T. 971). Plaintiff stated that if something were on the counter, he could move it from one side to the other. He could reach over his head, but he could not lift anything over his head. (Id.) Plaintiff's gout flares up every four months, but as long as he took his pills, he would be back to normal within a day. (T. 972-73).

         Plaintiff testified that he had “good” and “bad” days. (T. 975). On “good” days, he tried to push himself to walk a little further, but on “really bad” days, he just stays in the house. (T. 976). Plaintiff stated that he had “bad” days twice per week. (Id.) Plaintiff then stated that he really did not stay in bed all day even on a bad day. (Id.) Plaintiff would get up and walk around the house because if he lay down too long, his back would start hurting. (Id.)

         The ALJ also heard the testimony of VE David Festa. (T. 977-87). The VE asked plaintiff various questions about his former work to clarify plaintiff's duties at those jobs. (T. 977-80). The ALJ then asked her first hypothetical question, assuming that plaintiff could perform the full range of light work, but was limited by a “mental” disorder, such that he could only perform “simple” decision-making, and have only short interactions with supervisors, co-workers, or the public. (T. 981). The VE was further asked to assume that the individual could work in proximity to others, but his tasks should not require him to work “in conjunction” with others, and should involve working with objects, rather than people. (Id.) Based on the plaintiff's testimony, the physical and mental requirements of his former occupations, and the ALJ's hypothetical, the VE opined that plaintiff could not perform any of his past relevant work. (Id.)

         The ALJ then asked a second hypothetical question, adding the following information to the original hypothetical question: he asked the VE to assume an individual who was 48[2] years old, with a high school education, and the same past relevant work as the plaintiff. He repeated the rest of the hypothetical above, and asked the VE whether there would be “any unskilled occupation [that] such an individual could perform.” (T. 982). The VE testified that there would be three jobs available - a routing clerk, a checker, and a racker. (Id.) The ALJ then added that this individual must have “routine” daily tasks which do not significantly change in pace or location. (T. 983). The VE stated that this additional limitations would not affect the individual's ability to perform the three above-mentioned jobs. (Id.)

         Plaintiff's attorney asked the VE if the jobs that he listed would be precluded if the individual required a cane to stand or walk. (T. 984). The VE testified that there would be no “light” work jobs that would encompass the additional limitation. However, there would be sedentary jobs that the individual would be able to perform. (Id.) The available sedentary jobs for such an individual would be - surveillance system monitor, waxer, and stuffer. (Id.) The VE also testified that his opinion with respect to the availability of sedentary work would not change if the individual were limited to “no bending” at the waist or reaching below the knees. (T. 986-87). The VE stated that sedentary jobs did not require “bending, lifting, pick up.” (T. 987). However, those sedentary jobs would not be available if the individual were further restricted to “occasional” reaching. (T. ...

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