Hurd v. Astrue
Filing
21
MEMORANDUM-DECISION & ORDER that the Commissioner's motion for judgment on the pleadings is GRANTED; The Commissioner's decision denying plaintiff disability benefits is AFFIRMED; and The complaint is DISMISSED in its entirety. The Clerk of the Court is directed to enter judgment accordingly. Signed by Judge David N. Hurd on 1/11/2013. (see)
0UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------SCOTT M. HURD,
Plaintiff,
-v-
3:10-CV-1116
MICHAEL J. ASTRUE, Commissioner of Social
Security Administration,
Defendant.
-------------------------------APPEARANCES:
OF COUNSEL:
JONATHAN P. FOSTER, ESQ.
Attorney for Plaintiff
407 South Main Street
Athens, PA 18810
OFFICE OF REGIONAL GENERAL COUNSEL
SHEENA V. WILLIAMS-BARR, ESQ.
SOCIAL SECURITY ADMINISTRATION REGION II
Attorneys for Defendant
26 Federal Plaza Room 3904
New York, NY 10278
DAVID N. HURD
United States District Judge
MEMORANDUM-DECISION and ORDER
I. INTRODUCTION
This matter is brought pursuant to §§ 205(g) & 1631(b)(3) of the Social Security
Act, as amended, 42 U.S.C. §§ 405(g) & 1383(c)(3), to review a final determination of the
Commissioner of Social Security denying the plaintiff's claim for Supplemental Security
Income ("SSI") benefits. The parties have filed their briefs, including the Administrative
Record on Appeal, and the matter has been submitted for decision without oral argument.
II. BACKGROUND
Plaintiff Scott M. Hurd ("plaintiff" or "Hurd") filed an application1 for SSI benefits on
October 31, 2006, claiming a period of disability beginning on October 11, 2004.2 His claims
were denied and he filed a request for a hearing on March 26, 2007. A hearing was held
before an Administrative Law Judge ("ALJ") on March 19, 2009. The ALJ rendered a
decision on June 29, 2009, denying plaintiff's claim. Plaintiff appealed the ALJ's decision.
On May 12, 2010, the Appeals Council declined further review of the ALJ's decision. Thus,
the ALJ's decision became the final decision of the Commissioner.
III. DISCUSSION
A. Standard of Review
The scope of a court’s review of the Commissioner's final decision is limited to
determinating whether the decision is supported by substantial evidence and the correct legal
standards were applied. Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam)
(citing Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir. 2002); Martone v. Apfel, 70 F. Supp. 2d
145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)).
"Substantial evidence means 'more than a mere scintilla. It means such relevant evidence
as a reasonable mind might accept as adequate to support a conclusion.'" Poupore, 566
F.3d at 305 (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229, 59 S. Ct. 206, 217
(1938)). "To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from both
1
Hurd's previous application for SSI benefits was denied on July 20, 2005. That determination was
not appealed.
2
At his hearing, plaintiff, through counsel, requested that his alleged onset date be amended to July
21, 2005, the day after his previous application for benefits was denied. R. 25.
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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) (citing
Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S. Ct. 456, 464 (1951)). If the
Commissioner's disability determination is supported by substantial evidence, that
determination is conclusive. Id.
However, "where there is a reasonable basis for doubting whether the
Commissioner applied the appropriate legal standards," the decision should not be affirmed
even though the ultimate conclusion reached is arguably supported by substantial evidence.
Martone, 70 F. Supp. 2d at 148 (citing Johnson, 817 F.2d at 986).
A reviewing court may enter "a judgment affirming, modifying, or reversing the
decision of the Commissioner of Social Security, with or without remanding the cause for a
rehearing." 42 U.S.C. § 405(g); see Martone, 70 F. Supp. 2d at 148. "Remand is
appropriate where there are gaps in the record or further development of the evidence is
needed," such as where new, material evidence has become available. 42 U.S.C. § 405(g);
Martone, 70 F. Supp. 2d at 148 (citing Parker v. Harris, 626 F.2d 225, 235 (2d Cir. 1980)). A
remand for rehearing directing the taking of additional evidence is warranted only if it is
shown that there is new, material evidence "'and that there is good cause for the failure to
incorporate such evidence into the record'" at the administrative hearing. Carroll v. Sec’y of
Health & Human Servs., 705 F.2d 638, 643-44 (2d Cir. 1983) (quoting 42 U.S.C. § 405(g), as
amended in 1980)). Remand may also be appropriate if the Commissioner "misapplies the
law or failed to provide a fair hearing." Id. at 644. However, where the underlying
administrative decision is not supported by substantial evidence, reversal is appropriate
because there would be no useful purpose in remanding the matter for further proceedings.
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Id. (reversing and remanding solely for calculation of benefits, subject to determination by the
district court of any motion by the agency to remand to consider new evidence); Parker, 626
F.2d at 235 (reversing and remanding solely for calculation and payment of benefits);
Simmons v. United States R.R. Ret. Bd., 982 F.2d 49, 57 (2d Cir. 1992) (same); Williams,
859 F.2d at 261 (same).
B. Disability Determination - The Five Step Evaluation Process
The Social Security Act defines "disability" to include the "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). In
addition, the Act requires that a claimant’s
physical or mental impairment or 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, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
Id. § 423(d)(2)(A).
The Administrative Law Judge ("ALJ") must follow a five step evaluative process in
determining whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. In the
first step the ALJ must determine whether the claimant is engaging in substantial gainful
activity. If the claimant is engaging in substantial gainful activity he is not disabled and he is
not entitled to benefits. Id. §§ 404.1520(b), 416.920(b).
If the claimant is not engaged is substantial gainful employment, then step two
requires the ALJ to determine whether the claimant has a severe impairment or combination
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of impairments which significantly restricts his or her physical or mental ability to perform
basic work activities. Id. §§ 404.1520(c), 416.920(c). If the claimant is found to suffer from a
severe impairment, then step three requires that the ALJ determine whether the impairment
meets or equals an impairment listed in Appendix 1 of the regulations. Id. §§ 404.1520(d),
416.920(d); see also id. Part 404, Subpt. P, App. 1. If so, then the claimant is "presumptively
disabled." Martone, 70 F. Supp. 2d at 149 (citing Ferraris v. Heckler, 728 F.2d 582, 584 (2d
Cir. 1984)); 20 C.F.R. §§ 404.1520(d), 416.920(d).
If the claimant is not presumptively disabled, step four requires the ALJ to assess
whether the claimant’s residual functional capacity ("RFC") precludes the performance of his
or her past relevant work. 20 C.F.R. §§ 404.1520(f), 416.920(f).
If the opinion of a treating physician is "'well-supported by medically acceptable
clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] case record'" it is given significant weight. Poupore, 566 F.3d at 307
(quoting 20 C.F.R. § 404.1527(d)(2)). However, where the treating physician's opinion is not
supported by medical evidence, it is not entitled to significant weight. Id.
The burden of proof with regard to the first four steps is on the claimant. Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996); Ferraris, 728 F.2d at 584.
If it is determined that claimant cannot perform past relevant work, the burden shifts
to the agency for the fifth and final step. Perez, 77 F.3d at 46. This step requires the
agency to examine whether the claimant can do any type of work. 20 C.F.R. §§ 404.1520(g),
416.920(g). The regulations provide that "factors such as a claimant's age, education, and
previous work experience" should be evaluated to determine whether a claimant has the
residual functional capacity to perform work in any of five categories of jobs: very heavy,
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heavy, medium, light, and sedentary." Perez, 77 F.3d at 46 (citing 20 C.F.R. § 404, Subpt.
P, App. 2). "[T]he Commissioner need only show that there is work in the national economy
that the claimant can do; he need not provide additional evidence of the claimant's residual
functional capacity." Poupore, 566 F.3d at 306.
A claimant may seek review of an adverse decision by the ALJ from the Appeals
Council. Perez, 77 F.3d at 44. If review is granted, the decision of the Appeals Council is
the final decision of the Commissioner. Id. If review is denied, then the final decision is that
of the ALJ. Id. The final decision is judicially reviewable pursuant to 42 U.S.C. § 405(g).
C. Analysis
Hurd asserts two errors by the ALJ. First, he contends that the ALJ erred in failing
to call a vocational expert for testimony. Second, he argues that the ALJ erred in failing to
assist in adequate development of the record.
1. Vocational Expert
According to plaintiff, the ALJ's decision that jobs in the regional and national
economy that plaintiff can do was not supported by substantial evidence because he failed to
obtain testimony from a vocational expert.
Where claimant has both exertional and nonexertional limitations, application of the
Medical Vocational Guidelines set forth in 20 C.F.R. § 404, Subpt. P, App. 2 ("the grids") may
be appropriate. Polny v. Bowen, 864 F.2d 661, 663 (9th Cir. 1988). Application of the grids
alone must be evaluated by the ALJ on a case-by-case basis taking into consideration
whether a claimant's abilities are significantly limited by nonexertional impairments. Bapp v.
Brown, 802 F.2d 601, 605 (2d Cir. 1986). Where the grids "adequately reflect a claimant's
condition, then their use to determine disability status is appropriate. Id. However, if there is
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a significant diminution of the claimant's abilities, that is, the nonexertional limitation "so
narrows a claimant's possible range of work as to deprive him of a meaningful employment
opportunity," the ALJ should obtain the testimony of a vocational expert. Id. at 606. The
question of diminution of work capacity can be determined by evaluating whether "the basic
mental demands of competitive, remunerative, and unskilled work" as characterized by "the
ability, on a sustained basis, to 'understand, carry out, and remember simple instructions; to
respond appropriately to supervision, coworkers, and usual work situations; and to deal with
changes in a routine work setting.'" Sipe v. Astrue, 873 F. Supp. 2d 471, 480 (N.D.N.Y.
2012) (quoting S.S.R. 85-15).
The issue is whether Hurd's abilities were significantly limited by his nonexertional
impairments. This is done by determining if the grids adequately reflected plaintiff's
condition, and, if not, whether there was a sufficiently significant diminution of his capacity to
work that a vocational expert must be consulted to determine if work that he can perform
exists in the national economy.
The ALJ found that plaintiff had the RFC to perform: lifting and/or carrying 20
pounds occasionally and ten pounds frequently; stand and/or walk, and sit, six hours out of
an eight-hour workday; only occasional climbing, balancing, stooping, kneeling, crouching,
and crawling; no tasks requiring binocular vision; avoid concentrated exposure to fumes,
odors, dusts, gases, poor ventilation, and other respiratory irritants; understand, remember
and carry out simple and some complex tasks; sustain sufficient concentration and focus to
maintain regular and continuing employment; occasional interaction with co-workers; work in
proximity to co-workers but not in coordination or conjunction with them; and little to no
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contact with the general public.3 R. 16. According to this RFC, in terms of exertional
capacity the plaintiff can perform light work limited by occasional climbing, balancing,
stooping, kneeling, crouching, and crawling. This limitation does not affect his ability to
perform the full range of sedentary work, which is included within the capacity to perform light
work so long as no factors (such as sitting for long periods) are present. See 20 C.F.R.
§ 404.1567(a), (b).
Based upon an RFC to perform the full range of light work and Hurd's age,
education, and work experience (unskilled work), the grids would direct a finding of not
disabled. The Grids Rule 202.20. Based upon an RFC to perform light work with plaintiff's
postural limitations, he can perform the full range of sedentary work. With an RFC of a full
range of sedentary work, the grids would direct a finding of not disabled. Id. Rule 201.27.
However, the range of light work (with postural limitations)4 and the full range of sedentary
work are limited by plaintiff's environmental and vision restrictions. Therefore, the grids
provide a framework for decision.
Hurd must avoid concentrated exposure to fumes, odors, dusts, gases, poor
ventilation, and other respiratory irritants. This restriction has a minimal impact on the
availability of jobs, especially in unskilled, sedentary base. S.S.R. 85-15, 96-9p.
Plaintiff may have occasional interaction with co-workers; work in proximity to coworkers but not in coordination or conjunction with them; and little to no contact with the
general public due to his mental limitations. Unskilled jobs "ordinarily involve dealing
3
The ALJ found that Hurd suffered from the severe impairments of left eye blindness, post neck
surgery, asthma, and bipolar disorder. R. at 14. This finding is not challenged.
4
It is noted that one who can stoop, crouch, crawl, and kneel occasionally has a "virtually intact"
occupational base for light and sedentary work. S.S.R. 85-15.
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primarily with objects, rather than with data or people." Id. 85-15. Given Hurd's younger age
and high school education, these limitations would not significantly erode his occupational
base. See id.
Plaintiff has been blind in his left eye since age 7. He graduated from high school,
albeit with the help of one period per day of special education. Additionally, he performed
numerous jobs at which he was not hampered by his left eye blindness. His vision in his right
eye is 20/20, indicating he would not have difficulty seeing small objects. Further, there is no
evidence in the record that Hurd does not have the ability to avoid ordinary workplace
hazards. Therefore, the ALJ's determination that plaintiff's left eye blindness does not
significantly erode his occupational base is supported by substantial evidence. See S.S.R.
96-9p, 85-15.
Substantial evidence as set forth above supports the ALJ's finding that Hurd's
exertional and nonexertional limitations did not significantly erode his occupational base.
Therefore, it was appropriate for the ALJ to make a determination of not disabled, following
the grids as a framework without obtaining a vocational expert.
2. Development of the Record
An ALJ has a duty to develop the administrative record. Perez, 77 F.3d at 47. The
ALJ must "'make every reasonable effort to help [the claimant] obtain medical reports'" from
the claimant's medical sources so long as permission is granted to request such reports. Id.
(quoting 20 C.F.R. § 404.1512(d)).
Hurd argues that the ALJ took selective statements from consultative examiner Dr.
Graff without considering that, overall, the report was inconsistent with those selective
statements. According to plaintiff, overall Dr. Graff's Psychiatric Review Technique indicated
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he has significant limitations in ability to sustain concentration and to work in the same place
as co-workers. The ALJ recognized, and incorporated in his analysis, Dr. Graff's opinions.
He opined that plaintiff suffered from bipolar disorder substantiated by symptoms, signs, and
laboratory findings. See R. at 230. Dr. Graff also opined that plaintiff had mild restrictions of
daily living; moderate difficulty maintaining social functioning; and moderate difficulty
maintaining concentration, persistence, and pace. Id. at 237. The ALJ, recognizing that Dr.
Graff's opinions were not inconsistent with the medical evidence and no treating source gave
a contradictory opinion, gave this opinion great weight. Id. at 18. For example, Dr. Warfield,
who conducted a consultative psychological examination, opined that plaintiff's attention and
concentration were mildly impaired due to plaintiff's psychological disorder and limited
intellectual functioning, but that his insight and judgment were fair. Id. at 219–220. Dr.
Warfield's opinions were consistent with Dr. Graff's opinions.
Moreover, plaintiff points to no additional treating sources from which records
should have been obtained. The ALJ noted the sparsity of medical records. R. at 17. The
sparsity of records reflects the plaintiff's failure to continuously seek medical/psychological
treatment, see R. at 35–36, rather than any failure on the part of the ALJ to develop the
record. Therefore, this claim of error fails.
IV. CONCLUSION
The ALJ properly made a determination of not disabled without obtaining a
vocational expert's testimony. The ALJ met his responsibility for developing the record.
Accordingly, it is
ORDERED that
1. The Commissioner's motion for judgment on the pleadings is GRANTED;
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2. The Commissioner's decision denying plaintiff disability benefits is AFFIRMED;
and
3. The complaint is DISMISSED in its entirety.
The Clerk of the Court is directed to enter judgment accordingly.
IT IS SO ORDERED.
Dated: January 11, 2013
Utica, New York.
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