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Carbee v. Comm'r of Soc. Sec.

United States District Court, N.D. New York

January 9, 2018

KENNETH EVERETT CARBEE, JR., Plaintiff,
v.
COMM'R OF SOC. SEC., Defendant.

          LEGAL AID SOCIETY OF NORTHEASTERN NEW YORK, INC. Counsel for Plaintiff

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

          MICHAEL J. TELFER, ESQ.

          BENIL ABRAHAM, ESQ.

          DECISION AND ORDER

          Hon. Glenn T. Suddaby, Chief U.S. District Judge.

         Currently before the Court, in this Social Security action filed by Kenneth Everett Carbee, Jr. (“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. 14, 17.) For the reasons set forth below, Plaintiff's motion for judgment on the pleadings is granted in part and denied in part, and Defendant's motion for judgment on the pleadings is granted in part and denied in part.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1979, making him 36 years old at the amended alleged onset date and 37 years old at the date of the ALJ's decision. Plaintiff reported obtaining a general equivalency diploma (“GED”). Plaintiff has past work as a stock control clerk, cable TV installer, construction worker I, and fast food worker. He served in the U.S. Army for approximately seven years and was awarded benefits from the Department of Veterans Affairs in August 2015 based on a 90-percent disability rating. Generally, Plaintiff alleges disability due to chronic headaches and migraines, neck and shoulder pain, history of fusion surgery in the upper back, traumatic brain injury (“TBI”), vertigo, confusion and loss of memory, arthritis in the neck, back, knees and hands, bulging discs in the lower back, anxiety, posttraumatic stress disorder (“PTSD”), and high blood pressure.

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits on October 9, 2015, alleging disability beginning May 1, 2013. Plaintiff's application was initially denied on December 18, 2015, after which he timely requested a hearing before an Administrative Law Judge (“ALJ”). Plaintiff appeared at two hearings before ALJ Brian LeCours on March 11, 2016, and May 16, 2016. At the first hearing, Plaintiff appeared without counsel and the ALJ consented to an adjournment to allow Plaintiff to find counsel. (T. 93-96.) At the second hearing, Plaintiff amended his alleged onset date from May 1, 2013, to August 17, 2015. (T. 101.) On May 31, 2016, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 71-89.)[1] On December 8, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 1.)

         C. The ALJ's Decision

         Generally, in his decision, the ALJ made the following eight findings of fact and conclusions of law. (T. 76-84.) First, the ALJ found Plaintiff is insured for benefits under Title II until December 31, 2019. (T. 76.) Second, the ALJ found that Plaintiff engaged in substantial gainful activity until October 29, 2015. (Id.) Third, the ALJ found that Plaintiff has not engaged in substantial gainful activity since October 29, 2015, and indicated that his remaining findings addressed the period(s) in which Plaintiff did not engage in substantial gainful activity. (Id.) Fourth, the ALJ found that Plaintiff has severe impairments of degenerative disc disease of the cervical and lumbar spines, while his mental impairments, migraines, history of syncope, gastroesophageal reflux disease (“GERD”), obesity, and arthritis and patellofemoral pain syndrome of both knees are not severe impairments. (T. 77-78.) Fifth, the ALJ found that Plaintiff's severe impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the “Listings”). (T. 78-79.) Specifically, the ALJ considered whether Plaintiff's mental impairments, singly or in combination, meet or medically equal the criteria of the 12.00 Listings. (Id.) Sixth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to perform

light work as defined in 20 CFR 404.1567(b) except the claimant can occasionally stoop, kneel, crouch, and crawl, and climb ramps and stairs, but never able to climb ladders, ropes, and scaffolds. He can occasionally perform overhead reaching (bilateral limitation), must avoid concentrated exposure to noise, defined as Noise Intensity Level 4 and above, and must avoid concentrated exposure to hazardous conditions such as unprotected heights and dangerous machinery.

         (T. 79.) Seventh, the ALJ found that Plaintiff is capable of performing his past relevant work as a fast food worker with the limitations in the above RFC. (T. 82.) Eighth, and last, the ALJ found that, in the alternative, Plaintiff can perform other jobs existing in significant numbers in the national economy including mail clerk, photocopying machine operator, and office helper. (T. 82-84.) The ALJ therefore concluded that Plaintiff is not disabled.

         D. The Parties' Briefings on Their Cross-Motions

         1. Plaintiff's Motion for Judgment on the Pleadings

         Generally, Plaintiff makes six arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that evidence submitted to the Appeals Council was new and material, and that remand is proper because there is a reasonable probability that, if the ALJ had reviewed this evidence, his decision would have been different. (Dkt. No. 14, at 9-11 [Pl.'s Mem. of Law].) Specifically, Plaintiff argues that this evidence (a) “demonstrates Plaintiff's impairments were more severe than the evidence before the ALJ revealed, ” (b) “is consistent with Dr. Pollock's opinion that supports a finding that Plaintiff is limited to performing less than the RFC assessment, ” and (c) “also supports a finding that Plaintiff suffers from the severe impairments of migraines and degenerative arthritis of bilateral knees.” (Id. at 11.)

         Second, Plaintiff argues that the Commissioner's substantial gainful activity determination was legally erroneous because Plaintiff's employment through October 29, 2015, as a cable TV installer “was not substantial gainful activity as it was performed under special conditions.” (Id. at 11-13.) Plaintiff also argues his testimony and the report of his previous supervisor “establish Plaintiff was performing his work under special conditions.” (Id. at 12). Plaintiff cites Case v. Sullivan, 810 F.Supp. 52 (W.D.N.Y. 1992), in support of his argument that a presumption of substantial gainful activity is rebutted by evidence that a plaintiff's performance of his duties was very unsatisfactory. Case, 810 F.Supp. at 56-57.

         Third, Plaintiff argues that the Commissioner's severity determination was legally erroneous regarding the ALJ's finding that Plaintiff's migraines and degenerative arthritis of the bilateral knees were non-severe impairments. (Id. at 13-16.) Specifically, Plaintiff argues that the severity of Plaintiff's degenerative arthritis of the bilateral knees and migraines is supported by substantial evidence. (Id.) In support of this argument, Plaintiff cites to treatment notes between April and December 2015, new and material evidence from May 2016, his hearing testimony, and an undated statement from his previous employer. (Id.) Plaintiff also argues that, in making his severity determination regarding Plaintiff's bilateral knee condition, the ALJ did not properly weigh the August 2015 opinion of examining physician Charles Pollock, M.D. (Id. at 15.)

         Fourth, Plaintiff argues that the Commissioner's RFC determination was legally erroneous because the ALJ erred in weighing Dr. Pollock's opinion. (Id. at 16-20.) Specifically, Plaintiff argues that great weight should have been afforded to Dr. Pollock's opinion because it is supported by (a) Dr. Pollock's own examination findings, (b) the medical and vocational evidence of record, and (c) the “new and material” evidence submitted to the Appeals Council. (Id. at 16-19.) Plaintiff also argues that the ALJ “cherry picked from Dr. Pollock's opinion” because “the ALJ did not weigh [Dr. Pollock's] complete opinion regarding Plaintiff's ability to stand, squat, kneel, and ‘work above his head.'” (Id. at 19-20.)

         Fifth, Plaintiff argues that the Commissioner's credibility determination was legally erroneous. (Id. at 20-22.) Specifically, Plaintiff argues that the Commissioner's SSR 16-3p determination was legally erroneous in regard to the ALJ's analysis of Plaintiff's activities of daily living. (Id. at 21.) Plaintiff argues that a claimant need not be an invalid to be found disabled, that his activities as a parent are distinct from performing substantial gainful employment in the competitive workplace on a regular and continuing basis, and that none of the activities cited by the ALJ were performed on a regular and continuing basis. (Id. at 20-21 [Pl.'s Mem. of Law].)

         Sixth, and lastly, Plaintiff argues that the Commissioner's Step Four and Step Five determinations were legally erroneous. (Id. at 22-27.) Specifically, Plaintiff argues that he is unable to perform his past relevant work as a fast food worker because this position requires constant reaching in contrast to the ALJ's RFC assessment that Plaintiff can occasionally perform overhead reaching bilaterally, and that the findings at Step Four and Step Five were based on an incomplete hypothetical question. (Id. at 22-24.) Plaintiff also argues that the ALJ's decision violated SSR 00-4p because the ALJ failed to resolve conflicts between the vocational expert's testimony and the Selected Characteristics of Occupations (“SCO”) regarding the level of reaching required by the determined RFC, Plaintiff's past relevant work, and the jobs identified by the vocational expert (“VE”). (Id. at 24-26.) Finally, Plaintiff argues that there “are no jobs existing in significant numbers that Plaintiff can perform” because a job identified by the VE does not exist in significant numbers in the national economy. (Id. at 26-27.)

         2. Defendant's Motion for Judgment on the Pleadings

         Generally, Defendant makes six arguments in support of her motion for judgment on the pleadings. First, Defendant argues that evidence submitted to the Appeals Council did not provide a basis for changing the ALJ's decision. (Dkt. No. 17, at 7-10 [Def.'s Mem. of Law].) Specifically, Defendant argues that the “Appeals Council properly considered the evidence that Plaintiff submitted after the ALJ's decision and concluded that the information provided did not provide a basis for changing the decision.” (Id. at 8-10.) Defendant points to the May 2016 treatment note cited by Plaintiff and argues this note also includes unremarkable physical examination findings, signs of decreasing severity of Plaintiff's migraines, and conservative treatment recommendations for shoulder abnormalities. (Id. at 9.) Defendant also argues that other post-decision evidence cited by Plaintiff concerns a later period and therefore was not material because it was not relevant to his condition during the time period for which benefits were denied and was not probative. (Id. (quoting Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004).)

         Second, Defendant argues that the ALJ correctly found that Plaintiff performed substantial gainful activity through October 29, 2015, and that Plaintiff has failed to establish his work was performed under special conditions. (Id. at 10-13.) In support of this argument, Defendant cites the ALJ's acknowledgement of evidence in the record indicating Plaintiff received assistance with some of his job functions at Clearview Broadband and the ALJ's notation that Plaintiff did not report any special conditions in a November 27, 2015, work activity report or at a September 30, 2015, VA treatment visit. (Id. at 12-13; T. 76, 274, 1988.)

         Third, Defendant argues that the ALJ's Step Two determination was supported by substantial evidence. (Id. at 13-15.) In support of the ALJ's severity finding regarding Plaintiff's migraines, Defendant relies on the ALJ's severity analysis indicating a lack of treatment records substantiating the frequency and intensity alleged by Plaintiff. (Id.) Defendant points to treatment notes indicating Plaintiff's migraines were managed on medication as well as a lack of examination findings showing permanent residuals from Plaintiff's headaches. (Id. at 14.) In support of the ALJ's severity finding regarding Plaintiff's bilateral knee condition, Defendant cites the ALJ's acknowledgement that Plaintiff had a ten-percent service-connected disability related to his bilateral knee impairment, but that evidence from the relevant period did not support a finding of a severe impairment. (Id.) Defendant cites Dr. Pollock's August 2015 opinion which stated he was unable to state without mere speculation whether knee pain, weakness, fatigability, or incoordination limited Plaintiff's functional ability. (Id.) Defendant also points to minimal findings on Dr. Pollock's August 2015 examination and on subsequent examination in December 2015. (Id.) Defendant argues that, even if this Court were to find error at Step Two, remand would not be warranted, as the ALJ considered Plaintiff's severe and nonsevere impairments after Step Two. (Id. at 15.)

         Fourth, Defendant argues that the ALJ properly evaluated Dr. Pollack's opinion. (Id. at 15-17.) Specifically, Defendant argues that Dr. Pollock's August 2015 examination findings did not reveal significant limitations. (Id. at 15-16.) Defendant argues that the RFC assessment for a modified range of light work properly accounts for Dr. Pollock's opinion that Plaintiff could not perform work involving heavy lifting and that the ALJ accommodated Dr. Pollock's opinion regarding severe neck pain with overhead work by limiting Plaintiff to only occasional bilateral overhead reaching. (Id. at 16.) Defendant also argues that the ALJ's RFC for light work contemplates Dr. Pollock's note that Plaintiff experienced bilateral knee pain with prolonged standing, squatting, and kneeling. (Id.) Defendant argues that the portion of Dr. Pollock's August 2015 opinion regarding migraines did not include objective clinical findings or functional assessments, but rather, Plaintiff's own subjective statements regarding his headache symptoms. (Id. at 16-17.)

         Fifth, Defendant argues that substantial evidence supports the ALJ's credibility determination. (Id. at 17-19.) Specifically, Defendant argues that the ALJ properly considered Plaintiff's credibility consistent with the regulations including citing to Plaintiff's reported daily activities as indicating a greater level of functioning than claimed at the hearing. (Id. at 18.)

         Sixth, Defendant argues that the vocational expert's testimony provided substantial evidence to support the ALJ's findings at Step Four and Step Five. (Id. at 19-22.) Specifically, Defendant argues that Plaintiff's alleged errors regarding unresolved conflicts between the VE's testimony and the Dictionary of Occupational Titles (“D.O.T.”) are unfounded. (Id. at 19). Defendant argues that case law in this Circuit indicates that no conflicts exists between VE testimony and the D.O.T. where the D.O.T. is silent on the restriction at issue. (Id.) Defendant argues that if this Court finds that such a conflict did in fact exist, a review of the record indicates that the VE reasonably explained the basis for her testimony. (Id. at 20-21.) Defendant argues that overhead reaching is not discussed in the D.O.T. narrative descriptions of the fast food worker position and the three jobs identified by the VE, indicating no inconsistency between the VE's testimony and the D.O.T. (Id. at 21-22.) Defendant argues that the hypothetical question to the VE contained all of Plaintiff's credibly established limitations and mirrored the ALJ's RFC. (Id. at 22.) Defendant argues that the jobs identified by the VE exist in significant numbers in the national economy. (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. 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.” Barnhart v. Thompson, 540 U.S. 20, 24 (2003).

         III. ...


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