Tanya B. v. Comm'r of Soc. Sec.

TANYA B., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.

1:19-CV-240 (WBC)

UNITED STATES DISTRICT COURT WESTERN DISTRICT OF NEW YORK

March 25, 2021

APPEARANCES:

OF COUNSEL:

LEWIS L. SCHWARTZ, PLLC

Counsel for Plaintiff

1231 Delaware Ave., Ste. 103

Buffalo, NY 14209

LEWIS SCHWARTZ, ESQ.

U.S. SOCIAL SECURITY ADMIN.

OFFICE OF REG'L GEN. COUNSEL - REGION II

Counsel for Defendant

26 Federal Plaza - Room 3904

New York, NY 10278

REBECCA ESTELLE, ESQ.

William B. Mitchell Carter, U.S. Magistrate Judge,

MEMORANDUM-DECISION and ORDER

The parties consented, in accordance with a Standing Order, to proceed before the undersigned. (Dkt. No. 16.) The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, Plaintiff's motion is granted in part and denied in part, and the Commissioner's motion for remand for further proceedings is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born in 1961. (T. 177.) She has an associate degree. (T. 702.) Generally, Plaintiff's alleged disability consists of lumbar and cervical spinal injuries, and shoulder injuries. (T. 151.) Her alleged disability covers two closed periods, the first from July 13, 2012 through September 5, 2013 and the second from April 19, 2017 through April 25, 2018. (T. 703-704, 818.) Her date last insured is December 31, 2017. (Id.)

B. Procedural History

On January 24, 2013, Plaintiff applied for a period of Disability Insurance Benefits ("SSD") under Title II of the Social Security Act. (T. 58.) Plaintiff's application was initially denied, after which she timely requested a hearing before an Administrative Law Judge ("the ALJ"). On August 19, 2014, Plaintiff appeared before the ALJ, Grenville Harrop, Jr. (T. 28-44.) In a pretrial brief (T. 202) and again at the hearing (T. 30), Plaintiff, through her counsel, amended her claim to a closed period of benefits from July 13, 2012, through September 5, 2013, the day she returned to work. On December 11, 2014, ALJ Harrop issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. 12-25.) On June 7, 2016, the Appeals Council ("AC") denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.

On May 15, 2017, the Western District of New York signed a Stipulation and Order remanding Plaintiff's claim for a new hearing. (T. 719-720.) A Judgment was entered the following day remanding this matter back to the Social SecurityAdministration. (T. 718.) On September 15, 2017, the AC issued an Order remanding this matter to the Office of Disability Adjudication and Review for a new hearing. (T. 712-716.) The AC directed the ALJ to further evaluated Listing 1.04 "with the assistance of medical expert evidence." (T. 714.) The AC further directed the ALJ to clarify the RFC determination and subsequent step four determination. (T. 714-715.)

On September 14, 2018, a second hearing was conducted, this one by ALJ Paul Georger. (T. 690-711.) During the second hearing, Plaintiff through her attorney requested benefits for a second closed period from April 19, 2017 to April 25, 2018. (T. 703-704.) On December 5, 2018, ALJ Georger rendered a Notice of Decision - Partially Favorable, granting SSD benefits from July 13, 2012 through September 5, 2013, but denying SSD benefits from April 19, 2017 through April 24, 2018. (T. 663-689.) Plaintiff again timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following findings of fact and conclusions of law. (T. 673-683.) First, the ALJ found Plaintiff met the insured status requirements through December 31, 2017. (T. 673.) Second, the ALJ determined Plaintiff did not engage in substantial gainful activity during the first requested closed period of disability, or from her alleged onset date of July 13, 2012 to September 5, 2013, and her second requested closed period of disability or from April 19, 2017 to April 25, 2018. (Id.)

Third, the ALJ found from July 13, 2012 through September 5, 2013, the period during which Plaintiff was under a disability, she had the severe impairments of: degenerative disc disease of the cervical and lumbar spine with herniation discs at C7-T2 and her not complete tear of the labrum and supraspinatus of the left shoulder, right shoulder problems, and asthma. (Id.) Fourth, the ALJ found from July 13, 2012 through September 5, 2013, the period during which Plaintiff was disabled, the severity of Plaintiff's impairments in combination medically equaled the criteria of section 1.04 of 20 C.F.R. Part 404, Subpart P, Appendix 1 ("the Listings"). (Id.) The ALJ determined Plaintiff was under a disability from July 13, 2012 through September 5, 2013. (T. 676.)

Fifth, the ALJ found Plaintiff had not developed any new impairment or impairments since September 6, 2013, the date Plaintiff's disability ended and during the second requested closed period of disability from April 19, 2017 to April 25, 2018, Plaintiff's current severe impairments were the same as that present from July 13, 2012 through September 5, 2013, but improved. (T. 676.) Sixth, the ALJ determined, beginning September 6, 2013, and during the second requested closed period of disability from April 19, 2017 to April 25, 2018, Plaintiff had not had an impairment or combination of impairments that meets or medically equals the severity of a Listing. (Id.) Seventh, the ALJ determined Plaintiff had medical improvement which occurred as of September 6, 2013, the date Plaintiff disability ended and continued during her second requested closed period of disability or from April 19, 2017 to April 25, 2018. (T. 677.) Eighth, the ALJ found Plaintiff had the residual functional capacity ("RFC"), during the second closed period of disability or from April 19, 2017 to April 25, 2018, to perform sedentary work as defined in 20 C.F.R. § 404.1567(a); except:

no overhead reaching bilaterally; no use of ramps or stairs; no use of ladders, ropes or scaffolds; no balancing, stooping, kneeling, crouching or crawling; no exposure to humidity and wetness; no exposure to dust, fumes, odors or pulmonary irritants; and no exposure to extreme cold or extreme heat.

(T. 677.)¹ Lastly, the ALJ determined Plaintiff was capable of performing her past relevant work as a social welfare examiner and switch board/telephone operator. (T. 682.)

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

A. Plaintiff's Arguments

Plaintiff makes three separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff essentially argues the ALJ misread the medical opinion from medical expert, John Sabow, M.D. (Dkt. No. 11 at 13-16.) Second, Plaintiff argues the ALJ failed to identify and resolve a conflict between vocational expert testimony and the Dictionary of Occupational Titles, and subsequently erred in relying on that testimony. (Id. at 16-22.) Third, Plaintiff argues her claim "at the very least" requires remand for a new hearing; however, "it is more appropriate" the matter be reversed and remanded for calculation of benefits. (Id. at 22-23.)

B. Defendant's Arguments

In response, Defendant makes two arguments. First, Defendant argues remand for further proceedings is appropriate because the ALJ failed to resolve an apparent conflict between the vocational expert's testimony and the Dictionary of Occupational Titles. (Dkt. No. 13 at 4-5.) Second, and lastly, Defendant argues remand for calculation of benefits is not warranted. (Id. at 5-7.)

C. Plaintiff's Reply

Plaintiff filed a reply in response to Defendant's Motion for Remand. (Dkt. No. 14.) In her reply, Plaintiff requests remand solely for calculation of benefits, or in the alternative, remand with "specific instructions for Defendant to obtain supplemental testimony from Dr. Sabow regarding listing 1.04." (Id. at 3.)

III. RELEVANT LEGAL STANDARD

A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g), 1383(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, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

"Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining 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).

If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may...