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Lisa R. v. Commissioner of Social Security

United States District Court, N.D. New York

January 14, 2020

LISA R., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          HOWARD D. OLINSKY, ESQ., for Plaintiff

          KRISTINA D. COHN, Special Asst. U.S. Attorney, for Defendant

          MEMORANDUM-DECISION AND ORDER

          ANDREW T. BAXTER UNITED STATES MAGISTRATE JUDGE

         This 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, 6).

         I. PROCEDURAL HISTORY

         Plaintiff filed simultaneous applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”), alleging disability beginning January 31, 2008. (Administrative Transcript (“T”) at 208, 215). These applications were denied initially on January 5, 2015, and upon reconsideration on May 12, 2015. (T. 67-68, 89-90). Plaintiff timely requested a hearing with an Administrative Law Judge (“ALJ”). (T. 136). On February 2, 2017, plaintiff appeared with her representative and testified at a hearing before ALJ Roxanne Fuller. (T.33-66). At that time, plaintiff amended her alleged onset date to April 1, 2010. (T. 40). After hearing plaintiff's testimony, the ALJ took testimony from Vocational Expert (“VE”) Suman Srinivasan. (T. 60-66). On June 22, 2017, ALJ Fuller found that plaintiff was not disabled through the date of her decision. (T. 10-27). Plaintiff requested a review of the ALJ's decision, which the Appeals Council denied on April 30, 2018. (T. 1-3). Thus, the ALJ's opinion became the final decision of the Commissioner.

         II. GENERALLY APPLICABLE LAW

         A. Disability Standard

         To be 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 hire if he applied for work

42 U.S.C. § 1382(a)(3)(B). The 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 with-out 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 his impairment prevents him from performing his past work, the burden then shifts to the Commissioner to prove the final step. Id.

         B. Scope of Review

         In 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 409, 417 (2d Cir. 2013); 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.

         “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 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).

         An ALJ is not required to explicitly analyze ever piece of conflicting evidence in the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding 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 (W.D.N.Y. Dec. 6, 2010).

         III. FACTS

         As of the date of the administrative hearing, plaintiff was 48 years old. (T. 37). She was divorced with four children, resided in a mobile home, and had her driver's license. (T. 38-39). She graduated high school and completed two years of college. (T. 39).

         Plaintiff was employed as a full-time store manager at Family Dollar in 2010, where her duties included training and supervising other employees, setting up the store, unloading trucks, and customer service. (T. 40). She left the position because she had “a lot going on, ” i.e. handling her divorce and dealing with an injury sustained by her youngest child. (T. 40-41). After leaving Family Dollar, plaintiff attempted to work other inventory and retail ...


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