Barbara W. v. Comm'r of Soc. Sec.

541 F.Supp.3d 296

BARBARA W., Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

6:20-CV-06303 EAW

United States District Court, W.D. New York.

Signed May 28, 2021

Andrew D. Spink, Legal Assistance of Western New York, Inc., Geneva, NY, for Plaintiff.

Kathryn L. Smith, U.S. Attorney's Office, Rochester, NY, Nahid Sorooshyari, Kathryn Sara Pollack, Social Security Administration Office of General Counsel, New York, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, United States District Judge

INTRODUCTION

Represented by counsel, Plaintiff Barbara W. ("Plaintiff") brings this action pursuant to Title II of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying her application for disability insurance benefits ("DIB"). (Dkt. 1). This Court has jurisdiction over the matter pursuant to 42 U.S.C. § 405(g). Presently before the Court are the parties’ cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Dkt. 14; Dkt. 17), and Plaintiff's reply (Dkt. 20). For the reasons discussed below, Plaintiff's motion (Dkt. 14) is granted in part, the Commissioner's motion (Dkt. 17) is denied, and the matter is remanded to the Commissioner for further administrative proceedings consistent with this Decision and Order.

BACKGROUND

Plaintiff protectively filed her application for DIB on September 22, 2016. (Dkt. 13 at 729, 810).¹ In her application, Plaintiff alleged disability beginning November 23, 2012, due to the following conditions: diabetes ; neuropathy ; weakness; anxiety; depression; pinched nerves ; vertigo; and exhaustion. (Id. at 729, 797-98). Plaintiff's application was initially denied on November 30, 2016. (Id. at 729, 811-16). A video hearing was held before administrative law judge ("ALJ") John Loughlin on October 1, 2018. (Id. at 729, 750-96). Plaintiff appeared in Rochester, New York, and the ALJ presided over the hearing from Alexandria, Virginia. (Id. ). On February 4, 2019, the ALJ issued an unfavorable decision. (Id. at 729-43). Plaintiff requested Appeals Council review; her request was denied on March 12, 2020, making the ALJ's determination the Commissioner's final decision. (Id. at 6-8). This action followed.

LEGAL STANDARD

I. District Court Review

"In reviewing a final decision of the [Social Security Administration ("SSA")], this Court is limited to determining whether the SSA's conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quotation omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner is "conclusive" if it is supported by substantial evidence. 42 U.S.C. § 405(g). "Substantial evidence means more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) (quotation omitted). It is not the Court's function to "determine de novo whether [the claimant] is disabled." Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quotation omitted); see also Wagner v. Sec'y of Health & Human Servs. , 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence). However, "[t]he deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law." Byam v. Barnhart , 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) ).

II. Disability Determination

An ALJ follows a five-step sequential evaluation to determine whether a claimant is disabled within the meaning of the Act. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). At step one, the ALJ determines whether the claimant is engaged in substantial gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not, the ALJ proceeds to step two and determines whether the claimant has an impairment, or combination of impairments, that is "severe" within the meaning of the Act, in that it imposes significant restrictions on the claimant's ability to perform basic work activities. Id. § 404.1520(c). If the claimant does not have a severe impairment or combination of impairments, the analysis concludes with a finding of "not disabled." If the claimant does have at least one severe impairment, the ALJ continues to step three.

At step three, the ALJ examines whether a claimant's impairment meets or medically equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the "Listings"). Id. § 404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement (id. § 404.1509), the claimant is disabled. If not, the ALJ determines the claimant's residual functional capacity ("RFC"), which is the ability to perform physical or mental work activities on a sustained basis, notwithstanding limitations for the collective impairments. See id. § 404.1520(e).

The ALJ then proceeds to step four and determines whether the claimant's RFC permits the claimant to perform the requirements of his or her past relevant work. Id. § 404.1520(f). If the claimant can perform such requirements, then he or she is not disabled. If he or she cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the Commissioner to show that the claimant is not disabled. Id. § 404.1520(g). To do so, the Commissioner must present evidence to demonstrate that the claimant "retains a residual functional capacity to perform alternative substantial gainful work which exists in the national economy" in light of the claimant's age, education, and work experience. Rosa v. Callahan , 168 F.3d 72, 77 (2d Cir. 1999) (quotation omitted); see also 20 C.F.R. § 404.1560(c).

DISCUSSION

I. The ALJ's Decision

In determining whether Plaintiff was disabled, the ALJ applied the five-step sequential evaluation set forth in 20 C.F.R. § 404.1520. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2017. (Dkt. 13 at 731). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity from her alleged onset date of November 23, 2012 through her date last insured of December 31, 2017. (Id. ).

At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "type 2 diabetes with neuropathy, cervical spine stenosis, left ulnar nerve, left radial nerve impingement, left carpal tunnel syndrome, essential hypertension, hypotension, adjustment disorder with anxiety and depressed mood." (Id. at 731-32). The ALJ further found that Plaintiff's medically determinable impairments of pulmonary nodules, mitral valve disorder with murmur, irritable bowel syndrome, migraines, hyperlipidemia, pulmonary edema, and anemia were non-severe. (Id. at 732).

At step three, the ALJ found that Plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of any Listing. (Id. at 733). The ALJ particularly considered the criteria of Listings 1.04, 4.00, 11.14, 12.04, and 12.06 in reaching his conclusion. (Id. at 733-35).

Before proceeding to step four, the ALJ determined that Plaintiff retained the RFC to perform light work as defined in 20 C.F.R. § 404.1567(b), except that Plaintiff:

can frequently handle, finger and feel with both upper extremities and can frequently push and pull with the left upper extremity. The claimant can frequently push and pull or operate foot controls with both lower extremities. The claimant can frequently balance, can occasionally kneel, crouch, stoop, and crawl, can occasionally climb stairs and ramps, can never climb ladders, ropes and scaffolds, can occasionally be exposed to vibrations, but can never be exposed to unprotected heights and moving mechanical parts. The claimant can have occasional exposure to dust, noxious odors and fumes, and poor ventilation.

The claimant is able to understand and remember simple instructions, make simple work related decisions, carry-out simple instructions, and can occasionally deal with changes in a routine work setting.

(Id. at 735). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 741).

At step five, the ALJ relied on the testimony of a vocational expert ("VE") to conclude that, considering Plaintiff's age, education, work experience, and RFC, there were jobs that exist in significant numbers in the national economy that Plaintiff could perform, including the representative occupations of routing clerk, cashier, and retail marker. (Id. at 742). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 743).

II. Remand of this Matter for Further Proceedings is Necessary

Plaintiff asks the Court to remand this matter to the Commissioner, arguing that: (1) the ALJ erred by failing to find that Plaintiff would be absent from work at least one day per month; (2) evidence pertaining to Plaintiff's new diagnosis of chronic kidney disease should have been considered by either the ALJ or the Appeals Council where Plaintiff's claim was denied due to lack of a unifying diagnosis; and (3) the ALJ erred in his consideration of the statement of Plaintiff's daughter. (Dkt. 14-1 at 22-31).

A. Plaintiff's New Diagnosis of Chronic Kidney Disease

Plaintiff contends that the Appeals Council did not properly address evidence generated after her administrative hearing. (Dkt. 14-1 at 24-29). The new evidence relates to a kidney biopsy that occurred on October 18, 2018, and medical records from thereafter indicating that Plaintiff suffers from chronic kidney disease. (Id. at...