Donnarumma v. Berryhill

          MEMORANDUM OF DECISION ON THE MOTION FOR ORDER REVERSING COMMISSIONER'S DECISION, OR IN THE ALTERNATIVE, TO REMAND FOR A HEARING, AND MOTION FOR AN ORDER AFFIRMING THE DECISION OF THE COMMISSIONER

          WARREN W. EGINTON SENIOR UNITED STATES DISTRICT JUDGE.

         Plaintiff Kim Donnarumma challenges the denial of her application for Social Security disability benefits and requests reversal of the Commissioner's decision, or in the alternative a remand for a hearing. Defendant has filed a motion for an order affirming the decision of the Commissioner.

         For the following reasons, the Court will deny the motion to reverse the Commissioner's decision and will grant the motion for an order affirming the Commissioner's decision.

         BACKGROUND

         The plaintiff has filed a joint statement of facts that details plaintiff's medical history. The Court incorporates herein the statement of facts setting forth plaintiff's medical history.

         Plaintiff was born in 1966. As set forth in the joint statement of facts, plaintiff has had numerous illnesses and disorders, including, inter alia, right shoulder dysfunction with multiple injuries, obesity and carpal tunnel syndrome. She had previously worked a series of part time and per diem jobs as a certified nursing assistant.

         In a decision dated October 25, 2016, the Administrative Law Judge (“ALJ”) denied plaintiff's request for disability benefits on the basis that plaintiff did not have an impairment or combination thereof that met or medically equaled the severity of one of the listed impairments in 20 C.F.R. Part 404, Subpart P. The ALJ found that plaintiff retained “significant physical functioning, ” although she was unable to perform her past work as a certified nurse assistant. The ALJ found that she had residual functional capacity (“RFC”) to perform at a light exertional level with certain limitations.

         In making these determinations the ALJ cited to the medical record and considered the opinions of the medical providers. Specifically, the ALJ gave significant weight to plaintiff's treating physicians, Dr. Patrick Duffy and Dr. Michael Kaplan, who indicated that plaintiff retained the capacity for at least light duty or sedentary work.

         The ALJ afforded partial weight to the opinion of independent medical evaluator Christopher Lena's opinion that plaintiff had not yet reached her maximum medical improvement; that she required further treatment and a gradual return to working activities; that she could not work light duty assignments due to her right shoulder limitations; and that she was restricted to no overhead lifting and no lifting greater than ten pounds.^[1] The ALJ noted that Dr. Lena's findings were inconsistent with the less restrictive assessments of treating physicians Duffy and Kaplan.

         The ALJ afforded only partial weight to the State agency consultants on the basis that their findings were not consistent with the medical record as a whole and their status as non-treating physicians.

         Finally, the ALJ gave little weight to Dr. Yacov Kogan, who opined that plaintiff “would be mildly limited in her abilities to sit, stand, walk, bend, lift, carry, reach, and perform fine finger manipulations.” The ALJ explained that Dr. Kogan had only evaluated plaintiff once and was a non-treating source, and that his opinion was inconsistent with the medical record and his own examination findings, which indicated that plaintiff experienced “some giveaway weakness of the upper extremities and complained of experiencing tenderness as well.” The ALJ concluded that considering claimant's age, education, work experience, and RFC, she could perform jobs existing in significant numbers in the national economy. Plaintiff appealed this decision to the Appeals Council, which issued its denial on February 27, 2018.

         DISCUSSION

         In reviewing a final decision of the Commissioner under 42 U.S.C. §§ 405(g) and 1383(c), the district court performs an appellate function. Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir. 1981); Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir. 1977). A reviewing court will “set aside the ALJ's decision only where it is based upon legal error or is not supported by substantial evidence.” Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). See also Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990)(“As a general matter, when we review a decision denying benefits under the Act, we must regard the [Commissioner's] factual determinations as conclusive unless they are unsupported by substantial evidence”). “Substantial evidence” is less than a preponderance, but “more than a scintilla.” Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see Yancey v. Apfel, 145 F.3d 106, 110 (2d Cir. 1998); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).

         In determining whether the evidence is substantial, the court must “take into account whatever in the record fairly detracts from its weight.” Universal Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951). In so doing, the Court must “review the record as a whole.” ...