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Burkey v. Colvin

United States District Court, W.D. New York

January 18, 2018

KEIA MARIE BURKEY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          DAVID G. LARIMER UNITED STATES DISTRICT JUDGE

         Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security (“the Commissioner”). The action is one brought pursuant to 42 U.S.C. §405(g) to review the Commissioner's final determination.

         On December 30, 2011, plaintiff filed an application for a period of disability and disability insurance benefits under Title II of the Social Security Act. Plaintiff alleged an inability to work since February 16, 2006 (later amended to December 1, 2013).[1] (Dkt. #8 at 17). Her application was initially denied. Plaintiff requested a hearing, which was held July 8, 2014, via videoconference before Administrative Law Judge (“ALJ”) Lisa B. Martin. Plaintiff thereafter retained counsel, who requested a supplemental hearing. A supplemental hearing was scheduled for August 29, 2014, but was prevented by what the ALJ described as “technical difficulties.” (Dkt. #8 at 17). In lieu of rescheduling the supplemental hearing, plaintiff's representative agreed to submit interrogatories to the vocational expert who had testified at the initial hearing. The ALJ issued an unfavorable decision on October 2, 2014, concluding that plaintiff was not disabled under the Social Security Act. That decision became the final decision of the Commissioner when the Appeals Council denied review on May 15, 2016 (Dkt. #8 at 1-4). Plaintiff now appeals.

         The plaintiff has moved pursuant to Fed. R. Civ. Proc. 12(c) for judgment vacating the ALJ's decision and remanding the matter for further proceedings, and the Commissioner has cross moved for judgment dismissing the complaint. For the reasons set forth below, the plaintiff's motion (Dkt. #10) is denied, the Commissioner's cross motion (Dkt. #12) is granted, and the complaint is dismissed.

         DISCUSSION

         Familiarity with the five-step evaluation process for determining Social Security disability claims is presumed. See 20 CFR §404.1520.

         The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42 U.S.C. §405(g); Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial evidence is defined as “more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401 (1971). “The Court carefully 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.'” Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (quoting Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997)). Still, “it is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999). “Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [this Court] will not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002).

         The same level of deference is not owed to the Commissioner's conclusions of law. See Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.1984). This Court must independently determine if the Commissioner's decision applied the correct legal standards in determining that the plaintiff was not disabled. “Failure to apply the correct legal standards is grounds for reversal.” Townley, 748 F.2d at 112. Therefore, this Court first examines the legal standards applied, and then, if the standards were correctly applied, considers the substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir.1987). See also Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir.1998).

         DISCUSSION

         Plaintiff was born October 20, 1970, and was 43 years old on the amended alleged onset date. (Dkt. #8 at 25, 71). She has a high school education and completed two years of college. (Dkt. #8 at 71). Her treatment records reflect a history of asthma, chronic lumbar (low back) pain, depression, hypothyroidism, attention deficit hyperactivity disorder (“ADHD”), anxiety and substance abuse (in full remission as of 2010). Plaintiff also claims that she has Parkinson's disease, although the record does not otherwise contain any evidence of such a diagnosis.

         The ALJ determined that the plaintiff was capable of performing light work, with the following limitations: requiring a brief opportunity to sit down (for one or two minutes) every hour, no climbing of ladders, ropes or scaffolding, no more than occasional climbing of ramps and stairs, and no more than occasional balancing, stooping, kneeling, crouching and crawling. Plaintiff must also avoid dangerous work hazards such as unprotected or exposed machinery, concentrated pulmonary irritants, and extreme heat, humidity and cold temperatures. Plaintiff is further unable to tolerate distractions or perform detailed decision-making, and is accordingly limited to routine, simple tasks not requiring a fast, assembly quota-type pace. (Dkt. #8 at 22). When presented with this RFC, [2] vocational expert (“VE”) Alyssa Smith testified that plaintiff could perform the light, unskilled positions of price marker, collator operator and garment sorter. (Dkt. #8 at 26).

         Plaintiff first contends that the ALJ failed to sufficiently explain the weight given to the opinions of three consultative examiners, internist Dr. Harbinder Toor (Dkt. #8 at 540-43, 599-610), psychologist Dr. Yu-Ying Lin (Dkt. #8 at 535-39), and psychologist Dr. Adam Brownfield (Dkt. #8 at 590-98), and that the ALJ erred in giving similar weight to the latter two opinions, even though they were inconsistent with one another in some respects.[3] The fact that the ALJ opted to give “greater” weight to the opinion of Dr. Toor, who examined plaintiff on two occasions with respect to her physical RFC, and implicitly gave less weight to the opinions of Dr. Lin and Dr. Brownfield, is not legal error. The ALJ was entitled to separately weigh each of the available opinions, and to adopt only those portions of the opinions which were consistent with, and/or supported by, the other evidence of record.

         Plaintiff further claims that the ALJ failed to adequately explain why he credited some portions of Dr. Toor's and Dr. Lin's opinions, but not others. (For example, the ALJ rejected Dr. Toor's opinion that plaintiff cannot stand for more than 30 minutes at a time or for a total of 4 hours in a day, and Dr. Lin's opinion that plaintiff has “no” ability to make appropriate decisions, relate adequately with others, or handle stress.) Plaintiff alleges that even though the ALJ purported to explain her parsing of those opinions by referencing plaintiff's minimal treatment history, unimpressive MRI, high score on a Global Assessment of Functioning scale (indicating adequate mental health and functioning), and activities of daily living, including working part-time, the ALJ's explanation was factually erroneous.

         First, with respect to Dr. Toor's 30-minute restriction, the Court notes that although the ALJ's decision describes an RFC with the need for a “sit-down break” just once every 60 minutes, the hypothetical question the ALJ posed to the VE at the hearing did incorporate Dr. Toor's more extensive restriction. The ALJ's hypothetical described an individual who would need to “briefly sit down as often as every 30 minutes or change positions as often as every 30 minutes for one or two minutes, [in addition to] typical work breaks.” (Dkt. #8 at 80) (emphasis added). It was in response to this question that the VE identified the three positions upon which the ALJ's written decision relies in its Step 5 finding. Id. at 81-82. Thus, to the extent that the ALJ erred in not incorporating Dr. Toor's “30 ...


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