Brian M. v. Comm'r of Soc. Sec.

670 F.Supp.3d 1

BRIAN M., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

1:21-CV-00273 EAW

United States District Court, W.D. New York

Signed April 24, 2023

Kenneth R. Hiller, Melissa Marie Kubiak, Law Offices of Kenneth Hiller, PLLC, Amherst, NY, for Plaintiff.

June Lee Byun, Social Security Administration Office of General Counsel, Baltimore, MD, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, Chief Judge

INTRODUCTION

Represented by counsel, Plaintiff Brian M. ("Plaintiff") brings this action pursuant to Titles II and XVI of the Social Security Act (the "Act"), seeking review of the final decision of the Commissioner of Social Security (the "Commissioner," or "Defendant") denying his applications for disability insurance benefits ("DIB") and supplemental security income ("SSI"). (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. 7; Dkt. 8), and Plaintiff's reply (Dkt. 9). For the reasons discussed below, the Commissioner's motion (Dkt. 8) is granted, and Plaintiff's motion (Dkt. 7) is denied.

BACKGROUND

Plaintiff protectively filed his applications for DIB and SSI on September 6, 2018. (Dkt. 6 at 19, 112-13).¹ In his applications, Plaintiff alleged disability beginning February 15, 2017, due to degenerative disc disorder and herniated discs. (Id. at 19, 82-83, 97-98). Plaintiff's applications were initially denied on December 18, 2018. (Id. at 19, 114-21). A telephone hearing was held before administrative law judge ("ALJ") Paul Georger on July 28, 2020. (Id. at 19, 37-81). On September 1, 2020, the ALJ issued an unfavorable decision. (Id. at 16-31). Plaintiff requested Appeals Council review; his request was denied on January 12, 2021, making the ALJ's determination the Commissioner's final decision. (Id. at 5-10). 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), 416.920(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), 416.920(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), 416.920(d). If the impairment meets or medically equals the criteria of a Listing and meets the durational requirement, id. §§ 404.1509, 416.909, 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), 416.920(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), 416.920(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), 416.920(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 and 416.920. Initially, the ALJ determined that Plaintiff last met the insured status requirements of the Act on December 31, 2020. (Dkt. 6 at 21). At step one, the ALJ determined that Plaintiff had not engaged in substantial gainful work activity since February 15, 2017, the alleged onset date. (Id.).

At step two, the ALJ found that Plaintiff suffered from the severe impairments of: "degenerative disc disease of the lumbar spine with spondylosis, status-post January 2019 surgical repair; migraine headaches; major depressive disorder; and bipolar disorder." (Id. at 21-22). The ALJ further found that Plaintiff's medically determinable impairments of spontaneous pneumothorax, mild hearing loss due to recurrent otitis and history of right tympanic membrane perforation, and cannabis use disorder were non-severe. (Id. at 22).

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.). The ALJ particularly considered the criteria of Listings 1.04, 11.00, and 12.04 in reaching his conclusion. (Id. at 22-24).

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) and 416.967(b), except as follows:

He can occasionally climb ramps, stairs, ladders, ropes, and scaffolds. He can occasionally balance, stoop, kneel, crouch, and crawl. He can perform simple, routine, repetitive tasks but not at a production-rate pace, such as with assembly-line work. He is able to make simple work-related decisions.

He can occasionally interact with supervisors, coworkers, and the general public. He requires a sit/stand option that allows him to change position every 30 minutes.

(Id. at 24). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (Id. at 29).

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 bench inspector, tagger/labeler, and routing clerk. (Id. at 29-30). Accordingly, the ALJ found that Plaintiff was not disabled as defined in the Act. (Id. at 30-31).

II. The Commissioner's Determination is Supported by Substantial Evidence and Free from Legal Error

Plaintiff asks the Court to remand this matter to the Commissioner, arguing that (1) the ALJ erred when he failed to adequately evaluate Plaintiff's degenerative disc disease under Listing 1.04, and (2) the ALJ erred by improperly evaluating the opinion of his primary care provider Carl Roth, D.O., and then relying on the overly vague opinion of the consultative examiner, Michael Rosenberg, M.D., to support the physical portion of the RFC determination. (Dkt. 7-1 at 1, 12-21). The Court has considered each of these arguments and, for the reasons discussed below, finds them without merit.

A. The Step Three Determination

Plaintiff's first argument is that the ALJ failed to properly evaluate his impairment under Listing 1.04A, because he "gave a passing mention of Listing 1.04, but did not engage in an accurate analysis." (Dkt. 7-1 at 14). He contends that the ALJ's analysis fell short of the ALJ's requirement to build a bridge between the medical evidence and his finding to allow for meaningful review. (Id.). Plaintiff points to evidence suggesting that Listing 1.04A "may have been met." (Id. at 15-17). In response, the Commissioner contends that the ALJ was not required to provide a detailed analysis at step three and that Plaintiff failed to show that he could not ambulate effectively. (Dkt. 8-1 at 11-15).

"Plaintiff has the burden of proof at step three to show that [his] impairments meet or medically equal a Listing." Rockwood v. Astrue, 614 F. Supp. 2d 252, 272 (N.D.N.Y. 2009), adopted, 614 F. Supp. 2d 252 (N.D.N.Y. 2009). "To match an...