United States District Court, N.D. New York
A. GORTON, ESQ., for Plaintiff
KATHRYN S. POLLACK, Special Asst. U.S. Attorney for Defendant
MEMORANDUM-DECISION AND ORDER
T. BAXTER, U.S. MAGISTRATE JUDGE
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, 8).
protectively filed an application for Supplemental Security
Income (“SSI”) on July 1, 2014, alleging
disability beginning February 14, 2006. (Administrative
Transcript (“T”) at 15, 161-66). Her application
was denied initially on August 29, 2014. (T. 59-80).
Plaintiff requested a hearing before an Administrative Law
Judge (“ALJ”), which was held on August 31, 2016.
(T. 32-49). A supplemental hearing was held on November 2,
2016, to allow for vocational expert (“VE”)
testimony. (T. 50-58). On November 9, 2016, ALJ Elizabeth W.
Koennecke found plaintiff was not disabled. (T. 12-31). The
ALJ's decision became the Commissioner's final
decision when the Appeals Council denied plaintiff's
request for review on April 18, 2017. (T. 1-7).
GENERALLY APPLICABLE LAW
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).
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.
Scope of Review
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.
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).
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).
the date of the first administrative hearing on August 31,
2016, plaintiff was 26 years old. (T. 35). She resided with
her parents. (T. 447). Plaintiff is a high school graduate,
who attended special education classes. (T. 35, 447). She had
enrolled in a college program, but left after one day when
she felt overwhelmed. (T. 447). She has never been employed,
but has volunteered at her church to help watch two and three
year olds during weekly services. (T. 36, 447). Plaintiff did
not drive, and had difficulties riding in public
transportation. (T. 39, 519).
suffered a right knee injury when she was a child, which
still caused her pain. (T. 453). She testified that her knee
occasionally gave out during physical activity, such as
climbing stairs or lifting. (T. 45). Since the age of twelve,
plaintiff had also suffered from frequent headaches and
migraines. She testified that ...