United States District Court, E.D. New York
DeHaan Law Firm P.C. Attorney for the Plaintiff By: John W.
DeHaan, Esq., Of Counsel
States Attorney's Office for the Eastern District of New
York Attorneys for the Defendant By: Candace S. Appleton,
Assistant United States Attorney
MEMORANDUM OF DECISION & ORDER
D. SPATT UNITED STATES DISTRICT JUDGE.
August 8, 2016, the plaintiff, Michele Artinian (the
“Plaintiff” or the “Claimant”),
commenced this appeal pursuant to the Social Security Act, 42
U.S.C. § 405 et seq. (the “Act”),
challenging a final determination by the defendant, Nancy A.
Berryhill, the Acting Commissioner of the Social Security
Administration (the “Defendant” or the
“Commissioner”), that she is ineligible to
receive Social Security disability insurance
(“SSDI”) and supplemental security income
before the Court are the parties' cross motions, pursuant
to Federal Rule of Civil Procedure (“Fed. R. Civ.
P.” or “Rule”) 12(c) for a judgment on the
pleadings. For the reasons that follow, the Plaintiff's
motion is granted in part, and the Defendant's motion is
April 25, 2013, the Plaintiff applied for SSDI benefits under
the Act, alleging that she has been disabled since February
4, 2013. On August 7, 2013, the Plaintiff applied for SSI
benefits alleging the same date of disability onset.
claims were denied on August 12, 2013, and she requested a
hearing eight days later. The Plaintiff appeared with counsel
before Administrative Law Judge April Wexler (the
“ALJ”) on October 9, 2014. On November 25, 2014,
the ALJ issued a written decision in which she found that the
Plaintiff was not entitled to SSDI or SSI benefits under the
Plaintiff sought a review by the Appeals Council, which
denied her request on June 1, 2016. The ALJ's decision
became the final decision of the Commissioner upon the
Appeals Council's denial of the Plaintiff's request
August 8, 2016, the Plaintiff filed the instant action. The
parties submitted the matter as fully briefed to the Court on
May 1, 2017.
purposes of these motions, familiarity with the underlying
administrative record is presumed. The Court's discussion
of the evidence will be limited to the specific challenges
and responses presently raised by the Plaintiff and the
Defendant. In this regard, references to the record are
denoted as “R.”
The Standard For Benefits Under The Act
defines the term “disability” to mean an
“inability 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 12 months.” 42 U.S.C. §
423(d)(1)(A). A person may only be disabled if his,
“impairments are 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.” 42 U.S.C. § 423(d)(2)(A).
determining whether a claimant is disabled, the Commissioner
is required to apply the five-step sequential process
promulgated by the Social Security Administration, set forth
in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999). The Claimant bears the burden of
proving the first four steps, but then the burden shifts to
the Commissioner at the fifth step to prove that the Claimant
is capable of working. Kohler v. Astrue, 546 F.3d
260, 265 (2d Cir. 2008); Rosa, 168 F.3d at 77.
See also Perez v. Chater, 77 F.3d 41, 46 (2d Cir.
1996) (“If the claimant satisfies her burden of proving
the requirements in the first four steps, the burden then
shifts to the [Commissioner] to prove in the fifth step that
the claimant is capable of working.”). “If at any
step a finding of disability or non-disability can be made,
the [Social Security Administration] will not review the
claim further.” Barnhart v. Thomas, 540 U.S.
20, 24, 124 S.Ct. 376, 379, 157 L.Ed.2d 333 (2003).
the five-step sequential evaluation process, the
(1) whether the claimant is currently engaged in substantial
gainful activity; (2) whether the claimant has a severe
impairment or combination of impairments; (3) whether the
impairment meets or equals the severity of the specified
impairments in the Listing of Impairments; (4) based on a
“residual functional capacity” assessment,
whether the claimant can perform any of his or her past
relevant work despite the impairment; and (5) whether there
are significant numbers of jobs in the national economy that
the claimant can perform given the claimant's residual
functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir.
2014); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.
1996); Berry v. Schweiker, 675 F.2d 464, 467 (2d
Cir. 1982) (per curiam); 20 C.F.R. §§ 404.1520,
416.920. When conducting this analysis, the ALJ must consider
the objective medical facts; the diagnoses or medical
opinions based on these facts; the subjective evidence of
pain and disability; and the claimant's age, background,
education and work experience. Mongeur v. Heckler,
722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
The Standard Of Review
review of the denial of disability benefits is narrow”
as “[t]he Court will set aside the Commissioner's
conclusions only if they are not supported by substantial
evidence in the record as a whole or are based on an
erroneous legal standard.” Koffsky v. Apfel,
26 F.Supp.2d 475, 478 (E.D.N.Y. 1998) (Spatt, J.) (citing
Bubnis v. Apfel, 150 F.3d 177, 179-81 (2d Cir.
1998)); accord Machadio v. Apfel, 276 F.3d 103, 108
(2d Cir. 2002) (citing Shaw v. Chater, 221 F.3d 126,
131 (2d Cir. 2000)); 42 U.S.C. § 504(g). See also
Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)
(“Where there is substantial evidence to support either
position, the determination is one to be made by the
factfinder.”); Johnson v. Bowen, 817 F.2d 983,
985 (2d Cir. 1987) (describing review of the
Commissioner's decision as a requiring “two levels
of inquiry”). The ALJ is required to set forth those
crucial factors used to justify his or her findings with
sufficient particularity to allow the district court to make
a determination regarding the existence of substantial
evidence. Ferraris v. Heckler, 728 F.2d 582, 587 (2d
“the reviewing court does not decide the case de
novo.” Pereira v. Astrue, 279 F.R.D. 201,
205 (E.D.N.Y. 2010) (citing Halloran v. Barnhart,
362 F.3d 28, 31 (2d Cir. 2004)). Rather, “the findings
of the Commissioner as to any fact, if supported by
substantial evidence, are conclusive, ” id.
(citing 42 U.S.C. § 405(g)), and therefore, the relevant
question is not “whether there is substantial evidence
supporting the [claimant's] view.” Instead, the
Court “must decide whether substantial evidence
supports the ALJ's decision.” Bonet v.
Colvin, 523 F. App'x 58, 59 (2d Cir. 2013) (summary
order) (emphasis in original). In this way, the
“substantial evidence” standard is “very
deferential” to the Commissioner, and allows courts to
reject the ALJ's findings “‘only if a
reasonable factfinder would have to conclude
otherwise.'” Brault v. Soc. Sec.
Admin., 683 F.3d 443, 448 (2d Cir. 2012) (per curiam)
(quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th
Cir. 1994) (emphasis in original)). This deferential standard
applies not only to factual determinations, but also to
“inferences and conclusions drawn from such
facts.” Pena v. Barnhart, No. 01-cv-502, 2002
WL 31487903, at *7 (S.D.N.Y. Oct. 29, 2002) (citing
Levine v. Gardner, 360 F.2d 727, 730 (2d Cir.
evidence means ‘more than a mere scintilla. It means
such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.'” Burgess v.
Astrue, 537 F.3d 117, 127-28 (2d Cir. 2008) (quoting
Halloran, 362 F.3d at 31); accord Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28
L.Ed.2d 842 (1971); Williams v. Bowen, 859 F.2d 255,
258 (2d Cir. 1988). “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, 859 F.2d
at 258 (citing Universal Camera Corp. v. NLRB, 340
U.S. 474, 488, 71 S.Ct. 456, 464, 95 L.Ed. 456 (1951)).
ALJ's findings may properly rest on substantial evidence
even where he or she fails to “recite every piece of
evidence that contributed to the decision, so long as the
record ‘permits [the Court] to glean the rationale of
an ALJ's decision.'” Cichocki v.
Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (summary
order) (quoting Mongeur, 722 F.2d at 1040). This
remains true “even if contrary evidence exists.”
Mackey v. Barnhart, 306 F.Supp.2d 337, 340 (E.D.N.Y.
2004) (citing DeChirico v. Callahan, 134 F.3d 1177,
1182 (2d Cir. 1998)).
Court is prohibited from substituting its own judgment for
that of the Commissioner, even if it might understandably
have reached a different result upon a de novo
review. See Rutherford v. Schweiker, 685 F.2d 60, 62
(2d Cir. 1982); Koffsky, 26 F.Supp. at 478 (quoting
Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991)).
Application To The Facts Of This Case
Plaintiff asks this Court to remand the case back to the
Commissioner for further proceedings to remedy what the
Plaintiff believes was a deprivation of a full and fair ALJ
hearing. See Cruz v. Barnhart, 343 F.Supp.2d 218,
220 (S.D.N.Y. 2004) (stating that before a court analyzes the
merits of a Social Security case, “[t]he reviewing
court ‘must first be satisfied that the claimant has
had a full hearing under the regulations and in accordance
with the beneficent purposes of the [Social Security]
Act'” (quoting Cruz v. Sullivan, 912 F.2d
8, 11 (2d Cir. 1990) (internal citations omitted))).
Alternatively, the Plaintiff seeks that the matter be
remanded for a hearing before a different ALJ. See,
e.g., Kolodnay v. Schweiker, 680 F.2d 878,
879-80 (2d Cir. 1982); Hartnett v. Apfel, 21
F.Supp.2d 217, 223 (E.D.N.Y. 1998). See also 20
C.F.R. § 404.940 (“[A]n administrative law judge
shall not conduct a hearing if he or she is prejudiced or
partial with respect to any party…”).
Plaintiff contends that she was deprived of a full and fair
hearing because (1) the ALJ improperly determined that the
Plaintiff's mental impairments did not meet the criteria
in Listing 12.04; (2) the ALJ incorrectly assessed the
medical evidence in violation of the treating physician's
rule; and (3) the ALJ mischaracterized the Plaintiff's
chronic fatigue syndrome. The Court will address each of
these issues in turn.
As To Whether Substantial Evidence Supports A Finding That
The Plaintiff's Impairments Meet Or Equal The
Requirements Of Adult Listed Impairment 12.04
Plaintiff claims that her bipolar I disorder meets or equals
the requirements of Listed Impairment 12.04, Affective
Disorders. The Defendant contends that substantial evidence
supports the ALJ's conclusion that her impairments do not
meet or exceed any listed impairment, including 12.04. For
the reasons set forth below, the Court concurs with the
three, the ALJ is required to determine whether the
Claimant's impairment or combination of impairments is of
a severity to meet or medically equal the criteria of an
impairment listed in 20 C.F.R. § 404, Subpart P,
Appendix 1. 20 C.F.R. § 416.920(a)(4)(iii). This
determination is based solely on objective medical evidence;
a diagnosis is not sufficient in and of itself. See
20 C.F.R. § 416.925(d) (“Can your impairment(s)
meet a listing based only on a diagnosis? No. Your
impairment(s) cannot meet the criteria of a listing based
only on a diagnosis. To meet the requirements of a listing,
you must have a medically determinable impairment(s) that
satisfies all of the criteria of the listing.”). If the
impairment meets or medically equals one of the listed
criteria, the claimant is considered disabled. If not, the
ALJ is required to determine the claimant's residual
functional capacity (“RFC”), which is the ability
to perform physical or mental work, notwithstanding
limitations for the collective impairments. See 20
C.F.R. § 404.1520(e)-(f).
order to qualify as a listing, an impairment must satisfy all
of the listing's diagnostic criteria. Sullivan v.
Zebley, 493 U.S. 521, 530, 110 S.Ct. 885, 891, 107
L.Ed.2d 967 (1990) (“An impairment that manifests only
some of those criteria, no matter how severely, does not
qualify [as a Listing]”). The Plaintiff is responsible
for meeting her burden for each of the criteria in the
relevant listing. See Medrano v. Colvin, No.
15-cv-3081, 2016 WL 5255877, at *14 (E.D.N.Y. Sept. 21,
12.04 states, in relevant part:
12.04 Affective disorders: Characterized by a disturbance of
mood, accompanied by a full or partial manic or depressive
syndrome. Mood refers to a prolonged emotion that colors the
whole psychic life; it generally involves either depression
The required level of severity for these disorders is met
when the requirements in both A and B are satisfied, or when
the requirements in C are satisfied.
A. Medically documented persistence, either continuous or
intermittent, of one of the following:
1. Depressive syndrome, characterized by at least four of the
a. Anhedonia or pervasive loss of interest in almost all
b. Appetite disturbance with change in weight; or c. Sleep
d. Psychomotor agitation or retardation; or
e. Decreased energy; or f. Feelings of guilt or