Labarr v. Berryhill

JAMES LABARR, Plaintiff, v. NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.¹

8:17-CV-563

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

August 8, 2018

APPEARANCES:

SCHNEIDER & PALCSIK

Attorneys for Plaintiff

57 Court Street

Plattsburgh, NY 12901

OFFICE OF REGIONAL GENERAL COUNSEL

SOCIAL SECURITY ADMINISTRATION

REGION II

Attorneys for Defendant

26 Federal Plaza

New York, NY 10019

OF COUNSEL:

MARK A. SCHNEIDER, ESQ.

BENIL ABRAHAM, ESQ.

Special Ass't United States Attorney

DAVID N. HURD United States District Judge

MEMORANDUM-DECISION and ORDER

I. INTRODUCTION

Plaintiff James LaBarr ("LaBarr" or "plaintiff") brings this action seeking review of defendant Commissioner of Social Security's ("Commissioner" or "defendant") final decisiondenying his application for Child's Insurance Benefits ("CIB"). The parties have filed their briefs as well as the Administrative Record on Appeal and the motions will be considered on the basis of these submissions without oral argument.²

II. BACKGROUND

On February 22, 2012, LaBarr filed an application for CIB alleging that his mental conditions rendered him disabled beginning on January 10, 1993. Plaintiff's claim was initially denied on April 9, 2012.

At LaBarr's request, a video hearing was held before Administrative Law Judge ("ALJ") Carl E. Stephan on May 6, 2013. Plaintiff, represented by non-attorney representative Susan M. Westurn, appeared and testified. The ALJ also heard testimony from Vocational Expert ("VE") David Sypher. Thereafter, the ALJ issued a written decision denying plaintiff's application for benefits.

On September 3, 2014, LaBarr sought review of the Commissioner's decision denying his application for CIB by filing a civil complaint in the U.S. District Court for the Northern District of New York. Labarr v. Berryhill, 8:14-CV-1086. By Decision and Order dated March 21, 2016 (the "March 21 Order"), U.S. Magistrate Judge Thérèse Wiley Dancks vacated the Commissioner's decision and remanded plaintiff's claim to the Appeals Council.

On May 4, 2016, Administrative Appeals Judge Florence Felix-Lawson sent LaBarr's claim for benefits back to ALJ Stephan for additional consideration. Among other things, the Appeals Council directed the ALJ to (1) make a reasonable effort to ascertain the identity of"Tia," the person whom plaintiff identified as his counselor at the initial hearing; (2) obtain additional treatment records from treating psychiatrist Joshua Frank, M.D.; and (3) discuss in detail the weight provided to plaintiff's treating sources in light of any additional records and testimony.

On April 25, 2017, ALJ Stephan conducted a supplemental hearing. LaBarr, now represented by attorney Mark Schneider, appeared and testified. The ALJ also heard testimony from plaintiff's mother, Debbie LaBarr, and from Cherie A. Plante, another Vocational Expert. Thereafter, the ALJ issued a written decision again denying plaintiff's claim for benefits. R. at 326-337.³ Plaintiff timely appealed.

III. DISCUSSION

A. Standard of Review

A court's review of the Commissioner's final decision is limited to determining whether the decision is supported by substantial evidence and the correct legal standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam). "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.'" Id. (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

"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 v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citingUniversal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951)). If the Commissioner's disability determination is supported by substantial evidence, that determination is conclusive. See id. Indeed, where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's decision must be upheld—even if the court's independent review of the evidence may differ from the Commissioner's. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982); Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992).

However, "where there is a reasonable basis for doubting whether the Commissioner applied the appropriate legal standards," the decision should not be affirmed even though the ultimate conclusion reached is arguably supported by substantial evidence. Martone v. Apfel, 70 F. Supp. 2d 145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)).

B. Disability Determination—The Five-Step Evaluation Process

"The Social Security Act provides for child's survivor benefits for the dependent minor children of deceased insured workers." Abreu v. Colvin, 152 F. Supp. 3d 166, 169 (S.D.N.Y. 2015) (citing 42 U.S.C. § 402(d)). An applicant qualifies for Child's Insurance Benefits if he "meets the Act's definition of 'child,' is unmarried, is below specified age limits (18 or 19) or is under a disability which began prior to age 22, and was dependent on the insured at the time of the insured's death." Astrue v. Capato, 566 U.S. 541, 547 (2012).

As relevant here, the Act defines "disability" as the "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A). Inaddition, the Act requires that a claimant'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.

Id. § 423(d)(2)(A).

The ALJ must follow a five-step evaluation process in deciding whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. At step one, the ALJ must determine whether the claimant has engaged in substantial gainful activity. A claimant engaged in substantial gainful activity is not disabled, and is therefore not entitled to benefits. Id. §§ 404.1520(b), 416.920(b).

If the claimant has not engaged in substantial gainful activity, then step two requires the ALJ to determine whether the claimant has a severe impairment or combination of impairments which significantly restricts his physical or mental ability to perform basic work activities. Id. §§ 404.1520(c), 416.920(c).

If the claimant is found to suffer from a severe impairment or combination of impairments, then step three requires the ALJ to determine whether, based solely on medical evidence, the impairment or combination of impairments meets or equals an impairment listed in Appendix 1 of the regulations (the "Listings"). Id. §§ 404.1520(d), 416.920(d); see also id. Pt. 404, Subpt. P, App. 1. If the claimant's impairment or combination of impairments meets one or more of the Listings, then the claimant is "presumptively disabled." Martone, 70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984)).

If the claimant is not presumptively disabled, step four requires the ALJ to assesswhether—despite the claimant's severe impairment—he has the residual functional capacity ("RFC") to perform his past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f). The burden of proof with regard to these first four steps is on the claimant. Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983)).

If it is determined that the claimant cannot perform his past relevant work, the burden shifts to the Commissioner for step five. Perez, 77 F.3d at 46. This step requires the ALJ to examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g), 416.920(g). The regulations provide that factors such as a claimant's age, physical ability, education, and previous work experience should be evaluated to determine whether a claimant retains the RFC to perform work in any of five categories of jobs: very heavy, heavy, medium, light, and sedentary. Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt. P, App. 2). "[T]he Commissioner need only show that there is work in the national economy that the claimant can do; [she] need not provide additional evidence of the claimant's residual functional capacity." Poupore, 566 F.3d at 306 (citing 20 C.F.R. § 404.1560(c)(2)).

C. LaBarr's Appeal

LaBarr contends the ALJ (1) failed to find him per se disabled under Listing 12.04; (2) improperly weighed the medical evidence; and (3) incorrectly evaluated the credibility of his own testimony. Plaintiff argues his benefits application should be assigned to a different ALJ on remand because ALJ Stephan failed to follow Judge Dancks's remand order.

1. Per Se Disability

First, LaBarr contends that his bipolar disorder meets Listing 12.04 and therefore theALJ should have found him disabled as a matter of law. Pl.'s Mem. at 29.⁴

"In order for a condition to be considered disabling per se [at] step three, it must satisfy each element set out in the definition of a listed impairment." Bolden v. Comm'r of Soc. Sec., 556 F. Supp. 2d 152, 162 (E.D.N.Y. 2007).

Listing 12.04 requires a claimant to first provide medical documentation establishing a qualifying diagnosis of either depressive disorder or bipolar disorder. In addition to this threshold showing, the claimant must demonstrate that he satisfies the "paragraph B" criteria: either an extreme limitation of one, or a...