Patricia K. v. Comm'r of Soc. Sec.

PATRICIA K., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

5:20-CV-37 (ATB)

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

December 21, 2020

ELIZABETH V. KRUPAR , Legal Aid Soc. of Mid-NY, Inc. for Plaintiff

TIMOTHY SEAN BOLEN, Special Asst. U.S. Attorney, for Defendant

ANDREW T. BAXTER United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER

This matter was referred to me, for all proceedings and entry of a final judgment, pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, and in accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y. Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 5).

I. PROCEDURAL HISTORY

Plaintiff protectively filed her applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") on November 7, 2016, alleging that she became disabled on September 1, 2008.¹ (Administrative Transcript ("T") 10, 29, 74-75, 141-50). Plaintiff's claim was denied initially on December 22, 2016 . (T. 76-83). Plaintiff made a timely request for a hearing, which was held on September 26, 2018 before Administrative Law Judge ("ALJ") Kenneth Theurer. (T. 25-60). Plaintiff appeared with her representative and testified at the hearing. (Id.) The ALJ also heardtestimony from Vocational Expert ("VE") Joseph Atkinson² (T. 54-59) and plaintiff's brother (T. 49-54). ALJ Theurer issued an unfavorable decision on November 13, 2018. (T. 10-19). The ALJ's decision became the Commissioner's final decision when the Appeals Council denied plaintiff's request for review on December 2, 2019. (T. 1-4).

II. GENERALLY APPLICABLE LAW

A. Disability Standard

To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he is "unable 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 twelve months . . . ." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff'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 hire if he applied for work

42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.

First, the [Commissioner] considers whether the claimant is currentlyengaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his 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 meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled with-out considering vocational factors such as age, education, and work experience... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant can perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that his impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. Id.

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012). It must be "more than a scintilla" of evidence scattered throughout the administrative record. Id. However, this standard is a very deferential standard of review, "even more so than the 'clearly erroneous standard.'" Brault, 683 F.3d at 448.

"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 on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its interpretation of the administrative record for that of the Commissioner, if the record contains substantial support for the ALJ's decision. Id. See also Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See, e.g., Monguer v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we are unwilling to require an ALJ explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ cannot "pick and choose evidence in the record that supports his conclusions." Cruz v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112 (W.D.N.Y. Dec. 6, 2010).

III. FACTS

Plaintiff was born on July 24, 1969 and was 49 years old at the time of the ALJ's hearing. Plaintiff lived in a home with her three children, ages 27, 16, and 14. (T. 33). Plaintiff has a Liberal Arts Associates Degree from Morrisville College.³ (T. 33). Plaintiff had various jobs between 2003 and the time of the hearing, none of which amounted to substantial gainful activity for purposes of previous work. (T. 34-37).Plaintiff testified that she was unable to work due to "anxiety and depression," which has also been diagnosed as "schizoaffective disorder." (T. 38). Plaintiff testified that she took a variety of medications, but that her children help her "organize" her pills because plaintiff had trouble remembering to take them. (T. 39-40, 43). Plaintiff had some in-patient hospitalizations for her mental illness: in 2011, in 2016, and the last in 2018, only a few months prior to the ALJ's hearing. (T. 40-42). She testified that there were "different causes" for her hospitalization. (T. 43-44).

Plaintiff testified that her typical day, included getting up, doing some household chores, and walking her dog. (T. 44). Plaintiff states that, although she got "confusion" and lacked concentration and focus, she could cook and follow a recipe. (T. 44). Plaintiff testified that she read non-fiction books, but sometimes had trouble following the book. (T. 45). Plaintiff worked briefly as a cashier in a craft store. (T. 45). Plaintiff stated that she would be unable to work because she could not stay "focused on the task at hand" and could not "focus on the customer." (T. 45-46). She stated that the "stress levels" affected her, but had no trouble operating the cash registers because they "pretty much told you what you had to . . . know . . . ." (T. 46).

Plaintiff's brother testified that he tried "to keep tabs" on plaintiff and her children, made sure their house was "functional," the bills were paid, and helped to maintain a "stable environment" for plaintiff and her children. (T. 50). He testified that he saw the plaintiff once or more per week, "depending," and he took over the finances after a recent text message from plaintiff's daughter stating that plaintiff had spent agreat deal of money on things that the family did not need.⁴ (T. 51-52). He testified that he and his brothers were concerned that plaintiff would not pay the bills or would spend money irresponsibly, and therefore, took over those responsibilities. (Id.) Plaintiff's brother also testified that plaintiff's children have "stepped up" to take care of the plaintiff "to help preserve a stable environment" because the "confusion level" that the plaintiff displayed was "concerning."⁵ (T. 53). However, plaintiff's brother also testified that, when plaintiff was working in 2017 and taking care of her sick mother, he was not aware of any issues with plaintiff's attendance or any other issues she had at work. (T. 53-54).

The ALJ asked the VE one basic hypothetical question, and then discussed additional restrictions. (T. 55-65). The basic question assumed an individual with the same age, education, and work history as the plaintiff. (T. 55). The ALJ then asked the VE to assume that the individual retained the ability to understand and follow simple instructions and directions, could perform simple tasks independently with supervision, could regularly attend to a routine and maintain a schedule, could relate to and interact with others to the extent necessary to carry out simple tasks,⁶ but would have to avoidwork requiring any more complex interaction or joint effort to achieve a work goal. (T. 56). Finally, plaintiff could make an occasional simple decision, directly related to the completion of her task, in a stable, unchanging work environment. (Id.)

Based on the above hypothetical question, the VE stated that there was no previous work...