Michael D. v. Comm'r of Soc. Sec.

1

MICHAEL D., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

No. 3:22-CV-104 (CFH)

United States District Court, N.D. New York

May 23, 2023

APPEARANCES: Law Offices of Kenneth Hiller, PLLC Attorney for plaintiff Social Security Administration Attorney for defendant

OF COUNSEL: KENNETH R. HILLER, ESQ. HUGH DUN RAPPAPORT, ESQ.

MEMORANDUM-DECISION AND ORDER^[1]

CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE

Michael D.^[2] (“plaintiff”) 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 his application for disability insurance benefits. See Dkt. No. 1 (“Compl.”).

Plaintiff moves for judgment on the pleadings and for the Commissioner's decision to be reversed and remanded for further proceedings. See Dkt. No. 11. The Commissioner also moves for judgment on the pleadings. See Dkt. No. 13. For the following reasons, the Commissioner's decision is affirmed, plaintiff's motion is denied, and the Commissioner's motion is granted.

I. Background

On February 2, 2016, plaintiff filed a Title II application for disability insurance benefits. See T. at 52, 126-27.^[3] Plaintiff alleged a disability onset date of March 21, 2015. See id. at 52, 126. The Social Security Administration (“SSA”) denied plaintiff's claims on July 1,2016. See id. at 65. Plaintiff requested a hearing, see id. at 74-75, and a hearing was held before Administrative Law Judge (“ALJ”) Bruce S. Fein on May 8, 2018. See id. at 24-51. On June 14, 2018, the ALJ issued an unfavorable decision. See id. at 10-19. On March 23, 2019, the Appeals Council denied plaintiff's request for review of the ALJ's decision. See id. at 1-4. Plaintiff sought review of the Commissioner's decision by filing a complaint in this Court, and the Court reversed and remanded the Commissioner's decision for further proceedings. Michael F. D. v. Saul, No. 3:19-CV-00600 (BKS), 2020 WL 5742704, at *1 (N.D.N.Y. Sept. 25, 2020).

On remand, ALJ Fein held hearings on April 8, 2021, and August 3, 2021. See T. at 382-418. On October 12, 2021, the ALJ issued an unfavorable decision. See id. at 357-70. Plaintiff did not appeal the denial to the Appeals Council, but he timely brought this action before the Court. See Dkt. No. 1.

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) (citation, emphasis, and internal quotations marks 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 Five Step Disability Evaluation

Applying the five-step disability sequential evaluation, the ALJ first determined that plaintiff had “not engage[d] in substantial gainful activity during the period of his alleged onset date of March 21,2015[,] through his date last insured of September 30, 2021 [.]” T. at 360. At step two, the ALJ found that plaintiff “had the following severe impairment: bipolar disorder[.]” 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 361. Before reaching step four, the ALJ concluded that plaintiff retained the residual functional capacity (“RFC”)

to perform a full range of work at all exertional levels. Mentally, [plaintiff] could perform simple, routine, repetitive tasks, but no production-rate or pace work. He could occasionally interact with coworkers and supervisors but could not interact with the public. He also required a low stress job, which is defined as one involving only occasional decision-making, changes in the work setting, and use of judgment required on the job.

Id. at 364. At step four, the ALJ determined that plaintiff was unable to perform past relevant work. See id. at 368. At step five, “considering [plaintiff's] age, education, work experience, and residual functional capacity,” the ALJ determined that “there were jobs that existed in significant numbers in the national economy that [plaintiff] could have performed[.]” Id. at 369. Thus, the ALJ determined that plaintiff “was not under a disability, as defined in the Social Security Act, at any time from March 21,2015, the alleged onset date, through September 30, 2021, the date last insured[.]” Id. at 370.

IV. Discussion

A. Parties' Arguments

Plaintiff argues that the ALJ erred by failing to enforce a subpoena to obtain medical records from plaintiff's treating provider, Brian Babiak, M.D. See Dkt. No. 11-1 at 14. Plaintiff contends that by failing to enforce the subpoena, there was a gap in the record that leaves the ALJ's decision unsupported by substantial evidence. See Id. Plaintiff also asserts that the ALJ's decision is not supported by substantial evidence because the ALJ failed to give Dr. Babiak's medical...