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Ross v. Colvin

United States District Court, W.D. New York

February 20, 2018



          HON. MICHAEL A. TELESCA, United States District Judge.

         I. Introduction

         Represented by counsel, Karen Christine Ross (“Plaintiff”) instituted this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“the Commissioner”)[1]denying her application for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).

         II. Procedural Status

         Plaintiff protectively filed for DIB and SSI on August 7, 2013, alleging disability beginning September 1, 2010. The applications were denied on October 23, 2013, and Plaintiff requested a hearing. Administrative Law Judge Rosanne M. Dummer (“the ALJ”) conducted a hearing on December 4, 2014, via videoconference. Plaintiff appeared with her attorney and testified. Stephen P. Davis, an impartial vocational expert (“the VE”), also testified at the hearing, via videoconference telephone.

         On December 4, 2014, the ALJ sent the objective record evidence by query with interrogatories to Stuart Gitlow, M.D., MPH Board Certified in General Medicine and Addiction and Forensic Psychiatry. Dr. Gitlow's response and professional qualifications were sent to Plaintiff's attorney, who did not provide any response. After the hearing, the ALJ also received into the record treatment notes from March of 2014, to September of 2014 (pulmonary treatment), and from November 2013, to September 2014 (Unity Family Medicine).

         On January 26, 2015, the ALJ issued an unfavorable decision. (T.14-38).[2] The Appeals Council denied Plaintiff's request for review on July 14, 2016, making the ALJ's decision the final decision of the Commissioner. Plaintiff then timely commenced this action.

         III. The ALJ's Decision

         At the outset, the ALJ noted that Plaintiff previously had filed two sets of applications for DIB and SSI, the last of which was denied at the initial level on July 19, 2012, and no further review was sought. Since Plaintiff had alleged an onset date of disability within the previously adjudicated time period, the ALJ found there was an implied request for reopening. However, the ALJ found no basis to reopen the prior denials, which were final and binding through July 19, 2012, meaning that the relevant period commenced July 20, 2012. (T.17).

         The ALJ then found that Plaintiff meets the insured status requirements of the Act through December 31, 2015, and had not engaged in substantial gainful activity since September 1, 2010.

         At step two, the ALJ determined that Plaintiff has the following severe impairments: bipolar disorder, and alcohol dependence and marijuana abuse in reported remission. The ALJ found that Plaintiff's asthma appeared to stable on medication, and was not severe. The ALJ noted that Plaintiff also reported elbow pain, bilaterally; x-rays taken in December 2011, showed spurring of the right and left elbow and degenerative changes of the left elbow. The ALJ observed that Plaintiff reported she could not lift five pounds with either arm, “though no evidence indicates significant musculoskeletal treatment or that follow[-]up was required.” Therefore, the ALJ concluded that Plaintiff's elbow impairment was not severe. The ALJ noted that Plaintiff reported right leg muscle weakness, but it did “not appear related to a medically determinable impairment[, ]” and was not severe. In addition, the ALJ considered notations in the record by social workers mentioning a psychotic disorder. Since the assessment of a psychotic disorder was noted by Plaintiff's providers in connection with her substance use, the ALJ considered the reported psychotic symptoms in connection with Plaintiff's severe impairments above.

         At step three, the ALJ determined that the severity of Plaintiff's mental impairments, considered singly and in combination, do not meet or medically equal the criteria of any listed impairment, see 20 C.F.R. § Pt. 404, Subpt. P, App. 1 (eff. Jan. 2, 2015, to May 17, 2015). The ALJ particularly considered Listings 12.04 (affective disorders) and 12.09 (substance addiction disorders).

         Prior to proceeding to step four, the ALJ assessed Plaintiff as having the residual functional capacity (“RFC”) to perform a range of medium work as defined in 20 C.F.R. § 404.1567(c). Plaintiff could lift/carry about 50 pounds occasionally and 25 pounds frequently; sit about six of eight hours and stand/walk about six of eight hours; should avoid concentrated exposure to pulmonary irritants; should avoid concentrated exposure to work hazards; is able to understand, remember, and carry out simple instructions; can sustain attention for simple tasks for extended periods of two-hour segments in an eight-hour day; is able to tolerate brief and superficial contact with others; and is able to adapt to changes for simple, routine, and repetitive type tasks. (T.21).

         At step four, the ALJ found that Plaintiff cannot perform any of her past relevant work as a (1) certified nurse assistant (Dictionary of Occupational Titles (“DOT”) code: 355.674-014) medium level (performed at heavy), Specific Vocational Preparation (“SVP”) 4, semi-skilled; (2) day-care provider (DOT code: 301.677-010) medium level, SVP 3, semi-skilled; (3) teacher's aide (DOT code: 249.367-074) light level (performed at medium), SVP 3, semi-skilled; or (4) package sealer (DOT code: 920.685-074) medium level, SVP 2, unskilled. The demands of all these jobs exceeded Plaintiff's RFC. (T.32).

         At step five, the ALJ noted that Plaintiff was 50 years-old, defined as an individual closely approaching advanced age, with a limited (eleventh grade) education. (T.32). The ALJ found that transferability of job skills was not material to disability determination because the Medical-Vocational Rules (“the Grids”) supported a finding ...

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