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Kevin F. v. Commissioner of Social Security

United States District Court, N.D. New York

January 16, 2020

KEVIN F., [1] Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          HOWARD D. OLINSKY, ESQ., for Plaintiff.

          DANIEL TARABELLI, Special Asst. U.S. Attorney for Defendant.

          MEMORANDUM-DECISION AND ORDER

          Hon. Andrew T. Baxter U.S. 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, 7).

         I. PROCEDURAL HISTORY

         Plaintiff filed an application for Disability Insurance Benefits (“DIB”) on July 9, 2015, [2] alleging disability beginning July 9, 2015. (Administrative Transcript (“T”) at 77-78). His application was denied initially on October 15, 2015. (T. 85). Plaintiff requested a hearing, which was conducted by video conference by Administrative Law Judge (“ALJ”) Paul D. Barker, Jr. on October 11, 2017, at which plaintiff and Vocational Expert (“VE”) Jennifer Guediri testified. (T. 34-76).

         In a decision dated November 6, 2017, the ALJ found that plaintiff was not disabled. (T. 18-27). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on October 24, 2018. (T. 1-6).

         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 hired if he applied for work.

42 U.S.C. § 1382c(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 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.

         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 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).

         III. FACTS

         Plaintiff was 51 years old at the time of the ALJ's hearing and 49 at the alleged date of onset. He has a high-school education. (T. 39). Plaintiff was married and lived with his wife. (T. 77, 37-38). His past relevant work was as a boilermaker, which involved a great deal of heavy lifting and postural changes. (T. 40-46). Plaintiff's application alleged disability due to “arthritis neck and back, ” “bone spurs, ” and “narrowing of the spine.” (T. 77).

         At the ALJ's hearing, plaintiff testified that he was unable to work due to the severe pain in his lower back and the pain in his neck. (T. 46). He stated that the lower back pain was worse, and that he could not sit or stand for long periods of time. (T. 46, 48). Specifically, he testified that he could sit for “maybe two hours at the most, ” and that “standing varies . . . [m]aybe an hour.” (Id.) Plaintiff also testified that he had “troubles” in his left knee, but “nothing that has been medically diagnosed, ” and “moderate carpal tunnel in [his] left hand, ” which “hurts.” (T. 47). Plaintiff stated that his back pain was “constant, ” while his neck pain was “not always there, ” but did bother him. (T. 48). Some days were “better than others.” (Id.)

         Plaintiff testified that he had difficulty sleeping because he could not find a comfortable position, and that his arms would “fall asleep.”[3] (T. 50). He stated that he took medication for the pain, had tried physical therapy, had “injections” in both his neck and back, and tried a TENS Unit. (T. 50-51) Plaintiff testified that none of the treatments gave him relief. (Id.) He spoke to a doctor about surgery, but that the doctor did not recommend it, based on the failure of the injections. (T. 51-51).

         Plaintiff stated that he could lift “[a] gallon of milk . . . naturally, and “probably five [or] ten pounds.” (T. 55). He stated that he did not have difficulty with his hands “for the most part, ” although they sometimes “go to sleep, ” and that bothered him “as far as lifting.” (Id.) Plaintiff stated that he could walk a block or two without stopping. (Id.)

         During the day, plaintiff used the computer for “a little bit, ” watched television, went outside to sit for a little while, but then had to lay in bed and rest for a while.[4] (Id.) He had dogs, but had not taken them for a walk in a long time; and he occasionally went to the grocery store or walked to his brother-in-law's home, which was about a block away. (T. 56). Plaintiff's wife did most of the household chores, but occasionally, plaintiff would cook a small, simple meal. (Id.) He hired someone to cut the grass and remove snow for him. (Id.) Plaintiff testified that his pain “sometimes” affected his ability to concentrate on a task such as reading a book or watching television. (T. 60-61). He stated that his neck pain often caused “severe headaches” in the back of his neck approximately two or three times per week. (T. 62).

         The ALJ heard testimony from VE Jennifer Guediri. (T. 66-73). She testified that plaintiff's past relevant work (“PRW”) as a boilermaker was “heavy, ” and was “very heavy” as plaintiff performed it. (T. 66-67). There were no skills transferable to either the light or sedentary level from plaintiff's PRW. (T. 67). The ALJ asked the VE to assume an individual who could perform “a range of light work” as defined in the Social Security Regulations, except that the individual could stand, walk, or sit for six hours in an eight-hour day; and could occasionally stoop, climb ramps and stairs, balance, kneel, crawl, and crouch. (T. 67-68). The individual could never climb ladders, ropes, or scaffolds. (T. 68).

         The VE stated that such an individual could not perform the plaintiff's PRW, but could perform other work existing in substantial numbers in the national economy. (T. 68-69). The ALJ then asked the VE to include the additional restriction, requiring the individual to have “the option to sit at the workstation and continue working for ten minutes seated after every hour of standing.” (T. 70). The VE testified that only one of the previously mentioned jobs - sorter - would be available to an individual with such restrictions because it could be performed “sitting or standing at a workstation.” (T. 70).

         While the other two positions first mentioned by the VE would no longer be available to this individual, the VE testified that there were other jobs available that could be performed in either a seated or a standing position. (T. 70-71). These jobs were “marker” and “parking attendant.” (T. 71). The VE specifically stated that, although the Dictionary of Occupational Titles (“DOT”) did not mention the ability to alternate sitting and standing as part of the descriptions of the three jobs, the VE was testifying “based on [her] observation of the job, ” and based on speaking to employers about the requirements of such jobs. (T. 70). However, the VE testified that if an individual were to be off-task for up to 20% of the work day, “[t]hat would rule out work.”

         The ALJ also asked the VE another hypothetical question “at the sedentary level.” (T. 72). This question involved an individual who could perform “a range of sedentary work, ” except that the individual could lift, carry, push, and pull ten pounds occasionally; and could sit for six hours and stand and walk for two hours in an eight-hour day. (Id.) The individual could occasionally climb ramps and stairs, kneel, crawl, crouch, and balance, but could never climb ladders, ropes, and scaffolds. (Id.) The VE testified that such an individual could perform the jobs of security or ID clerk, [5] table worker, and final assembler. (Id.)

         The plaintiff and the ALJ have outlined the relevant medical evidence in this case. (T. 22-24; Pl.'s Br. at 3-7). Rather than reciting this evidence at the outset, the court will discuss the relevant details ...


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