Herrington v. Berryhill

          RULING ON PENDING MOTIONS

          WILLIAM I. GARFINKEL, UNITED STATES MAGISTRATE JUDGE

         This is an administrative appeal following the denial of the plaintiff, Johnny Herrington's, application for Title XVI supplemental security income benefits (“SSI”). 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 his case for a rehearing. [Doc. # 23]. The Commissioner, in turn, has moved for an order affirming her decision. [Doc. # 26]. After careful consideration of the arguments raised by Plaintiff, and thorough review of the administrative record, the Court affirms the Commissioner's decision.

         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 may 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 first ascertain whether the Commissioner applied the correct legal principles in reaching her conclusion, and then 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). 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)). It must be “more than a scintilla or touch of proof here and there in the record.” Williams, 859 F.2d at 258. 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 plaintiff's contrary position. Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).

         BACKGROUND

         1. Facts

         Plaintiff filed his SSI application on December 13, 2012, alleging his disability began on that date. His claim was denied at both the initial and reconsideration levels. Thereafter, Plaintiff requested a hearing. On February 4, 2014, a hearing was held before an administrative law judge. On February 26, 2014, a decision was issued denying Plaintiff's claim. Plaintiff then sought review with the Appeals Council. The Appeals Council granted Plaintiff's request for review on July 28, 2015 and remanded the matter for a subsequent hearing. Specifically, the remand order directed the administrative law judge to do following: (1) give further consideration to Plaintiff's maximum residual functional capacity during the entire period at issue and provide rationale with specific reference to evidence of record in support of the assessed limitations; and (2) obtain supplemental evidence from a vocational expert to clarify the effect of the assessed limitations on Plaintiff's occupational base and to determine whether he has acquired any skills that are transferable to other occupations. (R. 180-81). Administrative Law Judge Deirdre R. Horton (the “ALJ”) held the subsequent hearing on August 22, 2016. Plaintiff appeared with an attorney. Plaintiff and a vocational expert (“VE”) testified at the hearing. On October 25, 2016, the ALJ issued a partially favorable decision: she found Plaintiff was not disabled from December 13, 2012 through July 21, 2015, and that he became disabled as of July 22, 2015. Plaintiff timely requested review of the ALJ's decision by the Appeals Council. On January 4, 2018, the Appeals Council denied review, making the ALJ's October 2016 decision the final determination of the Commissioner. This action followed.

         Plaintiff has a high school education and can communicate in English. (R. 25). He was fifty-two years old on the date his SSI application was filed. Plaintiff has past work experience as a truck driver. (R. 24). Plaintiff's complete medical history is set forth in the Joint Stipulation of Facts filed by the parties. [Doc. # 23-2]. The Court adopts this stipulation and incorporates it by reference herein.

         2. The ALJ's Decision

         The Commissioner must follow a sequential evaluation process for assessing disability claims. The five steps of this process are as follows: (1) the Commissioner considers whether the claimant is currently engaged in substantial gainful activity; (2) if not, the Commissioner considers whether the claimant has a “severe impairment” which limits his or her mental or physical ability to do basic work activities; (3) if the claimant has a “severe impairment, ” the Commissioner must ask whether, based solely on the medical evidence, the claimant has an impairment which “meets or equals” an impairment listed in Appendix 1 of the regulations (the Listings). If so, and it meets the durational requirements, the Commissioner will consider the claimant disabled, without considering vocational factors such as age, education, and work experience; (4) if not, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has the residual functional capacity to perform his or her past work; and (5) if the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work in the national economy which the claimant can perform. 20 C.F.R. § 416.920(a)(4)(i)-(v). The claimant bears the burden of proof on the first four steps, while the Commissioner bears the burden of proof on the final step. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).

         In this case, at Step One, the ALJ found that Plaintiff has not engaged in substantial gainful activity since the SSI application date. (R. 17). At Step Two, the ALJ found Plaintiff's hepatitis, cirrhosis, degenerative disc disease, and obesity are severe impairments. (Id.). At Step Three, the ALJ concluded Plaintiff does not have an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments. (Id.). Next, the ALJ determined Plaintiff retains the following residual functional capacity^[2]:

Plaintiff can perform light work except he can frequently climb ramps and stairs and never climb ladders, ropes, or scaffolds. He can work in a setting free of concentrated exposure to unprotected heights or moving machinery. He can frequently balance and occasionally crouch, kneel, and crawl. He can work in a setting where he is permitted to change positions one or two times per hour to stretch for one to two minutes.

(R. 18). At Step Four, the ALJ found Plaintiff has been unable to perform any past relevant work since the alleged onset date. (R. 24-25). At Step Five, the ALJ relied on the testimony of the VE to conclude that, prior to July 22, 2015, there were jobs existing in significant numbers in the national economy Plaintiff could perform. (R. 25). Specifically, the VE testified that a person with Plaintiff's vocational factors and the assessed RFC could have performed the positions of final inspector, small products inspector, and mail clerk. (R. 26). The ALJ also found that, beginning on July 22, 2015, the date Plaintiff's age category changed to an individual of advanced age, a finding of disabled is reached by direct application of Medical-Vocational Rule 202.06. (Id.). Accordingly, the ALJ found Plaintiff to be disabled as of July 22, 2015, but not before.

         DISCUSSION

         On appeal, Plaintiff avers that the ALJ should have found him disabled as of his alleged onset date, December 13, 2012. In support of this position, Plaintiff argues (1) the ALJ erred in weighing the medical opinion evidence; (2) the ALJ erred in assessing his credibility; and (3) the ALJ failed to consider the ...