Tabatha S. v. Kijakazi

TABATHA S., ^[1] Plaintiff, v. KILOLO KIJAKAZI, ^[2] Commissioner of Social Security, Defendant.

No. 20-CV-530F (consent)

United States District Court, W.D. New York

September 21, 2021

LAW OFFICES OF KENNETH R. HILLER, PLLC Attorneys for Plaintiff KENNETH R. HILLER, and BRANDI CHRISTINE SMITH, of Counsel

LEWIS L. SCHWARTZ, PLLC Attorneys for Plaintiff LEWIS L. SCHWARTZ of Counsel

JAMES P. KENNEDY, JR. UNITED STATES ATTORNEY Attorney for Defendant Federal Centre

JASON PARKERSON PECK, and GRAHAM MORRISON Special Assistant United States Attorneys, of Counsel Social Security Administration

DECISION AND ORDER

LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE

JURISDICTION

On April 6, 2020, the parties to this action consented pursuant to 28 U.S.C. § 636(c) to proceed before the undersigned. (Dkt. 20). The matter is presently before the court on motions for judgment on the pleadings filed by Plaintiff on January 28, 2021 (Dkt. 16), and by Defendant on March 9, 2021 (Dkt. 18).

BACKGROUND

Plaintiff Tabatha S. (“Plaintiff”), brings this action under Title XVI of the Social Security Act (“the Act”), 42 U.S.C. §§ 405(g) and 1383(c)(3) seeking judicial review of the Commissioner of Social Security's final decision denying Plaintiff's applications filed with the Social Security Administration (“SSA”) on April 7, 2016, for Social Security Disability Benefits (“SSDI”) under Title II of the Act, and for Supplemental Security Income (“SSI”) under Title XVI of the Act (together “disability benefits”). Plaintiff alleges she became disabled on May 7, 2015, based on back injuries. AR^[3] at 179, 182, 183, 202. Plaintiff's applications initially were denied on July 5, 2016, AR at 81-86, and at Plaintiff's timely request, AR at 89-90, on July 13 2018, an administrative hearing was held in Buffalo, New York before Administrative Law Judge Paul Georger (“the ALJ”). AR at 12-42 (“administrative hearing”). Appearing and testifying at the administrative hearing were Plaintiff, represented by Lewis L. Schwartz, Esq., as well as vocational expert Jay Steinbrenner (“the VE”).

October 1, 2018, the ALJ issued a decision denying Plaintiff's claims, AR at 63-80 (“ALJ's Decision”), which Plaintiff timely appealed to the Appeals Council. AR at 141-43. On September 3, 2020, the Appeals Council considered evidence submitted after the administrative hearing, but prior to the ALJ's decision which the ALJ did not address, but found such evidence did not provide any basis for changing the outcome of the ALJ's decision, and adopted the ALJ's Decision that Plaintiff was not disabled through the date of the ALJ's Decision, AR at 1-9, thus rendering the ALJ's Decision the Commissioner's final decision. On May 4, 2020, Plaintiff commenced the instant action seeking review of the ALJ's Decision denying Plaintiff disability benefits.

On January 28, 2021, Plaintiff moved for judgment on the pleadings (Dkt. 16) (“Plaintiff's Motion”), attaching Plaintiff's Memorandum of Law in Support of a Motion for Judgment on the Pleadings (Dkt. 16-1) (“Plaintiff's Memorandum”). On March 9, 2021, Defendant moved for judgment on the pleadings (Dkt. 18) (“Defendant's Motion”), attaching Commissioner's Brief in Support of the Commissioner's Motion for Judgment on the Pleadings and in Response to Plaintiff's Brief Pursuant to Local Rule 5.5 (Dkt. 18-1) (“Defendant's Memorandum”). Filed on March 31, 2021, was Plaintiff's Response to Commissioner's Brief in Support and in Further Support for Plaintiff's Motion for Judgment on the Pleadings (Dkt. 19) (“Plaintiff's Reply”). Oral argument was deemed unnecessary.

Based on the following, Plaintiff's Motion is DENIED; Defendant's Motion is GRANTED.

FACTS^[4]

Plaintiff Tabatha S. (“Plaintiff”), born December 31, 1984, was 30 years old as of her alleged disability onset date (“DOD”) of May 7, 2015, AR at 19-20, 68, 150, 157, 179, and 33 years old as of October 1, 2018, the date of the ALJ's decision. AR at 76. Plaintiff lives in a house with her three children. AR at 20, 184, 192. Plaintiff attended high school in regular classes until tenth grade, can read, write and do some math, but has not obtained a graduate equivalency degree nor completed any specialized job training or vocational school. AR at 20-21, 184. Plaintiff has a driver's license and drives, AR at 20, 201, and obtained a handicapped parking permit through her primary care physician because Plaintiff is unable to walk long distances. AR at 31-32. Plaintiff's past relevant work (“PRW”) includes as a personal care aide for various home health care agencies, a cashier, stock clerk, and as a counselor with a summer youth program. AR at 21-24, 184. Plaintiff maintains she became unable to work after giving birth to her youngest child. AR at 24.

Plaintiff describes her activities of daily living as preparing simple meals for herself and her children, sitting in a recliner watching television, shopping for groceries with assistance from others, and Plaintiff's 10 and 14-year old children did the laundry. AR at 34-35, 200. Plaintiff's children take care of the pet dog. AR at 28-29, 193.

It is undisputed that Plaintiff suffers from degenerative disc disease of her lumbar spine with radiculopathy, migraine headaches, and obesity. Plaintiff received primary care through Neighborhood Health (“Neighborhood Health”), in Buffalo, New York where she was treated by primary care physician Ellis Gomez, M.D. (“Dr. Gomez”), and nurse practitioner Kim M. Ham (“NP Ham”). AR at 335-89, 399-437, 453-82. On October 22, 2015, Plaintiff, upon referral by Dr. Gomez, commenced treatment for her low back pain at Invision Health Brain and Spine Center (“Invision Health”), where Plaintiff saw Tobias A. Mattei, M.D. (“Dr. Mattei”), Sobhana Narayanan, M.D. (“Dr. Narayanan”), and Daniel Salcedo, M.D. (“Dr. Salcedo”). AR at 483-560. Plaintiff's treatment for her back pain included non-steroidal anti-inflammatory and opioid pain medications, physical therapy, facet joint injections, and nerve blocks which Plaintiff reported provided temporary relief. See, e.g., AR at 483.

In connection with her disability benefits, on June 1, 2016, Plaintiff underwent an Internal Medical Evaluation on a consultative basis by Hongbiao Liu, M.D. (“Dr. Liu”). AR at 439-42. On August 1, 2016, NP Ham completed a New York State Department of Motor Vehicle Application for a Parking Permit or License Plates for Persons with Severe Disabilities (“parking permit application”), on which NP Ham indicated Plaintiff had a permanent disability caused by lumbar back pain with radiculopathy, and neuromuscular dysfunction that severely limited Plaintiff's mobility, assessing Plaintiff had “severe lumbar radiculopathy” and “difficulty walking more than 50 ft due to numbness + pain.” AR at 452. On June 28, 2018, Plaintiff underwent a Functional Capacity Evaluation at Work Capacity Center of WNY (“WCC”), in Amherst, New York with occupational therapist Joseph J. Higgins (“OT Higgins”), who issued on July 1, 2018, a Medical Source Statement - Ability to Do Work-Related Activities (Physical). AR at 561-70.

DISCUSSION

1. Standard and Scope of Judicial Review

A claimant is “disabled” within the meaning of the Act and entitled to disability benefits when she is unable “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.” 42 U.S.C. §§ 416(i)(1); 1382c(a)(3)(A). A district court may set aside the Commissioner's determination that a claimant is not disabled if the factual findings are not supported by substantial evidence, or if the decision is based on legal error. 42 U.S.C. §§ 405(g), 1383(c)(3); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). In reviewing a final decision of the SSA, a district 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) (internal quotation marks and citation omitted). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. It is not, however, the district court's function to make a de novo determination as to whether the claimant is disabled; rather, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn” to determine whether the SSA's findings are supported by substantial evidence. Id. “Congress has instructed . . . that the factual findings of the Secretary, ^[5] if supported by substantial evidence, shall be conclusive.” Rutherford v. Schweiker, 685 F.2d60, 62 (2d Cir. 1982). In short, the issue is not whether substantial evidence supports the claimant's argument, but “whether substantial evidence supports the ALJ's decision.” Bonet ex rel. T.B. v. Colvin, 523 Fed.Appx. 58, 59 (2d Cir. 2013) (italics in original). “Under this ‘very deferential standard of review,' ‘once an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise.'” Id., 523 Fed.Appx. at 58-59 (quoting Brault v. Social Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (italics in original).

2. Disability Determination

The definition of “disabled” is the same for purposes of receiving SSDI and SSI benefits. Compare 42 U.S.C. § 423(d) with 42 U.S.C. § 1382c(a). The applicable regulations set forth a five-step analysis the Commissioner must follow in determining eligibility for disability benefits. 20 C.F.R. §§ 404.1520 and 416.920. See Bapp v. Bowen, ...