Bailey v. Berryhill

          RULING ON PENDING MOTIONS

          WILLIAM I. GARFINKEL UNITED STATES MAGISTRATE JUDGE

         This is an administrative appeal following the denial of the plaintiff, Karen M. Bailey's, application for Title II disability insurance benefits (“DIB”). It is brought pursuant to 42 U.S.C. § 405(g).^[1] Plaintiff now moves for an order reversing the decision of the Commissioner of the Social Security Administration (the “Commissioner”), or in the alternative, an order remanding her case for a rehearing. [Doc. # 22]. The Commissioner, in turn, has moved for an order affirming her decision. [Doc. # 25]. For the reasons set forth below, the Commissioner's decision is affirmed.

         PROCEDURAL BACKGROUND

         Plaintiff filed her DIB application on August 28, 2013, alleging a disability onset date of July 1, 2011. Her claims were denied at both the initial and reconsideration levels. Plaintiff then requested a hearing. On July 22, 2016, a hearing was held before Administrative Law Judge Ronald Thomas (the “ALJ”). Plaintiff and a vocational expert (“VE”) testified at the hearing. On October 21, 2016, the ALJ issued a decision denying Plaintiff's claim. Plaintiff timely requested review of the ALJ's decision by the Appeals Council. On November 3, 2017, the Appeals Council denied review, making the ALJ's decision the final determination of the Commissioner. This action followed.

         THE ALJ'S DECISION

         The ALJ followed the sequential evaluation process for assessing disability claims.^[2] At Step One, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the alleged onset date. (R. 18). At Step Two, the ALJ found the following severe impairments: multiple sclerosis and asthma with shortness of breath. (R. 19). The ALJ determined that Plaintiff's carpal tunnel syndrome, left lateral epicondylitis, right ankle tendon surgery, degenerative changes of the cervical and lumbar spine, urinary frequency, gastrointestinal reflux disease, hypothyroidism, and obesity are not severe. (R. 19-22). At Step Three, the ALJ found Plaintiff's severe impairments do not meet or medically equal the severity of one of the listed impairments. (R. 13-14). Next, the ALJ determined Plaintiff retains the following residual functional capacity^[3]:

Plaintiff can perform light work except she requires an environment free from concentrated exposure to poor ventilation, dust, fumes, gases, humidity, odors, wetness, and temperature extremes. She should avoid hazards such as dangerous machinery, heights, and vibrations, but is able to drive. She may perform occasional bending, balancing, kneeling, crawling, twisting, squatting, and climbing but no climbing ladders, ropes, or scaffolds.

(R. 23). At Step Four, the ALJ relied on the testimony of the VE to conclude that Plaintiff can perform past relevant work as an office manager, a teller, and bookkeeper, and a customer service representative. (R. 28). Accordingly, the ALJ found Plaintiff is not disabled under the Social Security Act.

         LEGAL STANDARD

         “A district court reviewing a final . . . decision [of the Commissioner of Social Security] pursuant to section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), is performing an appellate function.” Zambrana v. Califano, 651 F.2d 842 (2d Cir. 1981). “The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, [are] conclusive….” 42 U.S.C. § 405(g). Accordingly, the district court does not make a de novo determination of whether a plaintiff is disabled in reviewing a denial of disability benefits. Id.; Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's function is to ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and whether the decision is supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). Therefore, absent legal error, a decision of the Commissioner cannot be set aside if it is supported by substantial evidence. Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). Further, if the Commissioner's decision is supported by substantial evidence, that decision will be sustained, even where there may also be substantial evidence to support the claimant's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982). Substantial evidence is “‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). Substantial evidence must be “more than a scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258.

         DISCUSSION

         Plaintiff makes several arguments in support of her motion to reverse and/or remand, which the Court will address in turn.

         1. The ALJ's Step Two Determination

         Plaintiff first argues that the ALJ should have found her lumbar and cervical degenerative impairments, her bladder condition, and her upper extremity symptoms to be severe. The Commissioner responds that Plaintiff has not established these impairments are severe.

         At Step Two, the ALJ determines the “severity” of a claimant's impairments. Pursuant to the regulations, a medically determinable impairment, or a combination of impairments, is not severe “if it does not significantly limit [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1522. “A finding of ‘not severe' should be made if the medical evidence establishes only a ‘slight abnormality' which would have ‘no more than a minimal effect on an individual's ability to work.'” Rosario v. Apfel, No. 97-CV-5759, 1999 WL 294727, at *5 (quoting Bowen v. Yuckert, 482 U.S. 137, 154 n. 12 (1987)). “The claimant bears the burden of presenting evidence establishing severity.” Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012). While the second step of the evaluation process is limited to screening out de minimis claims, ...