Telesco v. Comm'r of Soc. Sec.

577 F.Supp.3d 336

Patricia N. TELESCO, Plaintiff,

v.COMMISSIONER OF SOCIAL SECURITY, Defendant.

20-CV-8376 (MKV) (RWL)

United States District Court, S.D. New York.

Signed December 24, 2021

Howard David Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Joseph Anthony Pantoja, U.S. Attorney's Office, New York, NY, for Defendant.

REPORT AND RECOMMENDATION TO HON. MARY KAY VYSKOCIL: SOCIAL SECURITY APPEAL

ROBERT W. LEHRBURGER, United States Magistrate Judge.

Plaintiff Patricia Telesco, represented by counsel, commenced the instant action against Defendant Commissioner (the "Commissioner") of the Social Security Administration (the "Administration"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Telesco is not entitled to Supplemental Security Income benefits ("SSI") for lack of disability. Telesco moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure, seeking an order to remand the case for a further hearing and award attorney's fees under the Equal Access To Justice Act, 28 U.S.C. § 2412. (Dkts. 1, 20,21.) The Commissioner cross-moves for judgment on the pleadings and asks the Court to affirm the Commissioner's decision. (Dkts. 22, 23.) For the reasons explained below, this Court respectfully recommends that Telesco's motion be GRANTED, that the Commissioner's motion be DENIED, and the case be REMANDED.

PROCEDURAL HISTORY

On May 16, 2017¹ , Ms. Telesco filed a Title II application for a period of disability beginning on July 25, 2012. (R. 13.)² Ms. Telesco claimed disability due to stage 1 brain cancer (astrocytoma in the brain stem), T-11/T12 spinal injury, low blood pressure, migraines, breathing difficulty, laryngospasms, depression, balance difficulty, and dizziness. (R. 61-62, 82, 193.) On August 9, 2017, the Administration denied Ms. Telesco's claim. (R. 13.) Soon thereafter, Ms. Telesco filed a written request for a hearing. (R. 13, 84.)

On April 30, 2019, Ms. Telesco, represented by counsel, appeared and testified at a video hearing before Administrative Law Judge ("ALJ") Vincent Cascio. (R. 32.) A vocational expert ("VE"), Esperanza Distefano, also appeared and testified. (R. 32.) On May 22, 2019, the ALJ issued a decision finding Ms. Telesco not disabled and capable of performing a range of light work. (R. 16, 19.) On August 7, 2020, the Appeals Council denied Ms. Telesco's request for review of the ALJ's decision, and the ALJ's decision became the final determination of the Commissioner. (R. 1-6.)

Ms. Telesco filed her Complaint in this action on October 7, 2020, seeking district court review pursuant to 42 U.S.C. § 405(g). (Dkt. 1.) On October 9, 2020, the Honorable Mary Kay Vyskocil, U.S.D.J., referred this matter to the undersigned for report and recommendation. (Dkt. 7.)

APPLICABLE LAW

A. Standard Of Review

A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g) ; Skrodzki v. Commissioner Of Social Security Administration , 693 F. App'x 29, 29 (2d Cir. 2017) (summary order). The inquiry is "whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart , 388 F.3d 377, 384 (2d Cir. 2004) ; see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).

" ‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.’ "

Douglass v. Astrue , 496 F. App'x 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue , 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulations)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the ALJ were based on those principles. See Johnson v. Bowen , 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not "ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits"); Townley v. Heckler , 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision "was not in conformity with the regulations promulgated under the Social Security Act"); Thomas v. Astrue , 674 F. Supp.2d 507, 515, 520 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).

If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must " ‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.’ " Brault v. Social Security Administration, Commissioner , 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue , 569 F.3d 108, 112 (2d Cir. 2009) ). Substantial evidence is defined as " ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Schaal v. Apfel , 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales , 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L.Ed.2d 842 (1971) ); see also Biestek v. Berryhill , ––– U.S. ––––, 139 S. Ct. 1148, 1154, 203 L.Ed.2d 504 (2019) (reaffirming same standard). "The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise ." Brault , 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) ("findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive").

To be supported by substantial evidence, the ALJ's decision must be based on consideration of "all evidence available in [the claimant]’s case record." 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth "a discussion of the evidence" and the "reasons upon which [the decision] is based." 42 U.S.C. § 405(b)(1). While the ALJ's decision need not "mention[ ] every item of testimony presented," Mongeur v. Heckler , 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or " ‘reconcile explicitly every conflicting shred of medical testimony,’ " Zabala v. Astrue , 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler , 725 F.2d 174, 176 (2d Cir. 1983) ), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner Of Social Security , 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler , 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart , No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).

Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker , 685 F.2d 60, 62 (2d Cir. 1982). The court must afford the Commissioner's determination considerable deference and "may not substitute ‘its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.’ " Jones v. Sullivan , 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary Of Health And Human Services , 733 F.2d 1037, 1041 (2d Cir. 1984) ); Dunston v. Commissioner of Social Security, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones , 949 F.2d at 59 ), R. & R. adopted , 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue , 606 F.3d 46, 49 (2d Cir. 2010). The court, however, will not defer to the Commissioner's determination if it is "the product of legal error." Dunston , 2015 WL 54169 at *4 (internal quotation marks omitted) (citing, inter alia , Douglass , 496 F. App'x at 156 ; Tejada v. Apfel , 167 F.3d 770, 773 (2d Cir. 1999) ).

B. Legal Principles Applicable To Disability Determinations

Under the Act, a person meeting certain requirements and considered to have a "disability" is entitled to disability benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A). A claimant's 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." 42 U.S.C. § 423(d)(2)(A).

To determine whether an individual is disabled and therefore entitled to disability benefits, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 416.920. First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 416.920(4)(i), (b). If so, the claimant is not eligible for benefits and the inquiry ceases.

If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a "severe impairment," which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920(4)(ii)(c). If the claimant does not have an impairment or combination of impairments that are "severe," the claimant is not entitled to benefits and the inquiry ends.

If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals,...