Leanne S. v. Comm’r of Soc. Sec.

1

LEANNE S., Plaintiff v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 3:20-CV-1447 (CFH)

United States District Court, N.D. New York

September 23, 2022

APPEARANCES OF COUNSEL:

Lachman, Gorton Law Firm PETER A. GORTON, ESQ.

Attorney for plaintiff

Social Security Administration JESSICA RICHARDS, ESQ.

Attorney for defendant

MEMORANDUM-DECISION AND ORDER ^[1]

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE.

Leanne S.^[2] (“plaintiff” or “the claimant”) brings this action pursuant to 42 U.S.C. § 405(g) seeking review of a decision by the Commissioner of Social Security (“the Commissioner”) denying her applications for social security income and disability insurance benefits. See Dkt. No. 1 (“Compl.”). Plaintiff moves for judgment on the pleadings. See Dkt. No. 13. The Commissioner cross moves for judgment on the pleadings. See Dkt. No. 18. Plaintiff replies. See Dkt. No. 20-1. For the following reasons, plaintiff's motion is granted, the Commissioner's motion is denied, and the Commissioner's decision is reversed and remanded for further proceedings.

I. Background

On November 30, 2017, plaintiff filed Title II and Title XVI applications for disability insurance and supplemental security income benefits. See T. at 224-37, 247M 48.^[3] Plaintiff alleged a disability onset date of April 8, 2007. See id. at 224, 231. The Social Security Administration (“SSA”) denied plaintiff's claims on February 28, 2018. See id. at 157. Plaintiff requested a hearing, see id. at 165, and a hearing was held on October 17, 2019, before Administrative Law Judge (“ALJ”) David Romeo. See id. at 99-135. On January 7, 2020, the ALJ issued an unfavorable decision. See id. at 63-92. On September 29, 2020, the Appeals Council denied plaintiff's request for review. See id. at 56-61. Plaintiff timely commenced this action on November 24, 2020. See Compl.

II. Legal Standards

A. Standard of Review

In reviewing a final decision of the Commissioner, a district court may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1388(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Substantial evidence is “more than a mere scintilla,” meaning that in the record one can find “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citations omitted)). The substantial evidence standard is “a very deferential standard of review . . . . [This] means once an ALJ finds facts, we can reject [them] only if a reasonable factfinder would have to conclude otherwise.” Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (per curiam) (internal quotations marks, citation, and emphasis omitted). Where there is reasonable doubt as to whether the Commissioner applied the proper legal standards, the decision should not be affirmed even though the ultimate conclusion is arguably supported by substantial evidence. See Martone v. Apfel, 70 F.Supp.2d 145, 148 (N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986). However, if the correct legal standards were applied and the ALJ's finding is supported by substantial evidence, such finding must be sustained “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted).

B. Determination of Disability

“Every individual who is under a disability shall be entitled to a disability . . . benefit . . . .” 42 U.S.C. § 423(a)(1)(E). Disability is defined as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment . . . which has lasted or can be expected to last for a continuous period of not less than 12 months[.]” Id. § 423(d)(1)(A). A medically-determinable impairment is an affliction that is so severe that it renders an individual unable to continue with his or her previous work or any other employment that may be available to him or her based upon age, education, and work experience. See id. § 423(d)(2)(A). Such an impairment must be supported by “medically acceptable clinical and laboratory diagnostic techniques.” Id. § 423(d)(3). Additionally, the severity of the impairment is “based on objective medical facts, diagnoses[,] or medical opinions inferable from [the] facts, subjective complaints of pain or disability, and educational background, age, and work experience.” Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983)).

The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520, to determine whether an individual is entitled to disability benefits:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity.

If he [or she] is not, the [Commissioner] next considers whether the claimant has a “severe impairment” which significantly limits his [or her] 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 is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him [or her] disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a' claimant who is afflicted with a “listed” impairment is unable to perform substantial gainful activity.

Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he [or she] has the residual functional capacity to perform his [or her] past work.

Finally, if the claimant is unable to perform his [or her] past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry, 675 F.2d at 467 (spacing added). “If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further.” Barnhart v. Thomas, 540 U.S. 20, 24 (2003). The plaintiff bears the initial burden of proof to establish each of the first four steps. See DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467). If the inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that the plaintiff is still able to engage in gainful employment somewhere. Id. (citing Berry, 675 F.2d at 467).

III. The ALJ's Decision

Applying the five-step disability sequential evaluation, the ALJ first determined that plaintiff last met the insured status through March 31, 2012, and that she had not engaged in substantial gainful activity since April 8, 2007, the alleged onset date. See T. at 69. At step two, the ALJ found that plaintiff had “the following severe impairments: chronic cystitis with overactive bladder, bilateral foot pain with pes planus, left foot plantar fasciitis and tarsal tunnel syndrome, right tibial tendonitis, lumbar spondylolisthesis, and Ehlers-Danlos Syndrome [(“EDS”)] type 3[.]” Id. At step three, the ALJ determined that plaintiff did not have an impairment or combination of impairments that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. See id. at 74. Before reaching step four, the ALJ concluded that plaintiff retained “the residual functional capacity [(‘RFC')] to perform the full range of sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a).” Id. at 76. At step four, the ALJ determined that plaintiff was unable to perform past relevant work. See id. at 85. At step five, the ALJ concluded that “[c]considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that the claimant can perform[.]” Id. at 86. Thus, the ALJ determined that plaintiff had “not been under a disability, as defined in the Social Security Act, from April 8, 2007, through the date of th[e] decision[.]” Id.

IV. Discussion^[4]

Plaintiff argues that (1) “[t]he Appeals Council failed to consider the newly submitted treating physician opinion” when it denied review of the ALJ's decision; (2) the ALJ's RFC determination “is not supported by a proper medical opinion” because the ALJ rejected the opinions of plaintiff's treating sources and inappropriately relied on the consultative examiner's and state agency consultant's opinions; (3) “the ALJ improperly substitute[d] his judgment for that of the undisputed medical opinions on the issues of the need to change positions and/or elevate the feet[]”; (4) the ALJ failed “to properly assess limitations to staying on task and/or maintaining attendance”; and (5) the ALJ erred in relying solely on the Medical-Vocational Guidelines (“Grids”) at step five. Dkt. No. 13 at 12-27.

The Commissioner argues that (1) plaintiff failed to provide “good cause” for why the newly submitted evidence was not provided to the ALJ; (2) the additional evidence is not “material” and would not change the outcome of the ALJ's decision; and (3) the ALJ's decision is supported by substantial evidence. Dkt. No. 18 at 19-22; 4-17.

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