Polhamus v. Astrue

Filing 19

MEMORANDUM-DECISION and ORDER - That the decision of the Commissioner is AFFIRMED and Polhamus's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
CARL L. POLHAMUS,
Plaintiff,

6:12-cv-192
(GLS)

v.
MICHAEL J. ASTRUE,
as Commissioner of the Social
Security Administration,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter W. Antonowicz
148 West Dominick Street
Rome, NY 13440
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261

PETER W. ANTONOWICZ, ESQ.

TOMASINA DIGRIGOLI
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Carl L. Polhamus challenges the Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and seeks judicial
review under 42 U.S.C. § 405(g). (See Compl., Dkt. No. 1.) After
reviewing the administrative record and carefully considering Polhamus’s
arguments, the court affirms the Commissioner’s decision and dismisses
the Complaint.
II. Background
On February 9, 2010, Polhamus filed an application for DIB under the
Social Security Act (“the Act”), alleging disability since January 1, 2004.
(See Tr.1 at 59, 85-90.) After his application was denied, Polhamus
requested a hearing before an Administrative Law Judge (ALJ), which was
held on October 28, 2010. (See id. at 27-58, 60-64.) On June 24, 2011,
the ALJ issued a decision denying the requested benefits, which became
the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (See id. at 1-4, 15-26.)
Polhamus commenced the present action by filing a Complaint on
1

Page references preceded by “Tr.” are to the Administrative
Transcript. (See Dkt. No. 10.)
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January 27, 2012, wherein he sought review of the Commissioner’s
determination. (See Compl. ¶¶ 1-10.) The Commissioner filed an answer
and a certified copy of the administrative transcript. (See Dkt. Nos. 8, 10.)
Each party, seeking judgment on the pleadings, filed a brief. (See Dkt.
Nos. 13, 16.)
III. Contentions
Polhamus contends that the Commissioner’s decision is tainted by
legal error and is not supported by substantial evidence.2 (See generally
Dkt. No. 13.) Specifically, Polhamus claims the ALJ: (1) erred in finding
that he knowingly and voluntarily waived his right to legal representation;
(2) failed to fully develop the record; and (3) rendered an inaccurate
residual functional capacity (RFC) determination. (See id. at 7-19.) The
Commissioner counters that the ALJ’s decision was legally sound and
supported by substantial evidence. (See generally Dkt. No. 16.)
IV. Facts

2

“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (internal quotation marks and citations omitted).

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The evidence in this case is undisputed and the court adopts the
parties’ factual recitations. (See Dkt. No. 13 at 3-4; Dkt. No. 16 at 2-8.)
V. Standard of Review
The standard for reviewing the Commissioner’s final decision under
42 U.S.C. § 405(g) is well established and will not be repeated here. For a
full discussion of the standard and the five-step process used by the
Commissioner in evaluating whether a claimant is disabled under the Act,
the court refers the parties to its previous opinion in Christiana v. Comm’r
of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y.
Mar. 19, 2008).
VI. Discussion
A.

Waiver of Representation
Polhamus first avers that the ALJ erred in finding that he knowingly

and voluntarily waived his right to legal representation. (See Dkt. No. 13 at
7-11.) The court disagrees.
Although a claimant does not have a constitutional right to counsel at
a social security disability hearing, the claimant “does have a statutory and
regulatory right to be represented should []he choose to obtain counsel.”
Lamay v. Comm’r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009). “If
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properly informed of this right, a claimant may waive it.” Id. Relevantly,
when notifying a claimant of an adverse determination, the Commissioner
must “notify [the] claimant in writing” of (1) his “options for obtaining
attorneys to represent” him at his hearing, and (2) “the availability to
qualifying claimants of legal services organizations which provide legal
services free of charge.” 42 U.S.C. § 406(c); see Lamay, 562 F.3d at 507.
Additionally, at the hearing itself, “the ALJ must ensure that the claimant is
aware of [his] right [to counsel].” Lamay, 562 F.3d at 507 (internal
quotation marks and citation omitted).
Here, Polhamus was informed of his right, in writing, before the
hearing, (see Tr. at 75, 80-81), and again at the hearing, (see id. at 29).
After the ALJ explained his right to him and offered to adjourn until
representation could be obtained, Polhamus stated that he wanted to
proceed. (See id.) Although he now claims otherwise, (see Dkt. No. 13 at
8-11), Polhamus admitted that he can read, write and understand English,
(see Tr. at 99). His testimony at the hearing only confirms his abilities.
(See id. at 31-51). As such, the court concludes that Polhamus was aware
of his right to representation, and made a voluntary choice to forego it.
B.

Duty to Develop the Record
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Polhamus argues next that the ALJ did not adequately develop the
record with respect to his mental impairment. (See Dkt. No. 13 at 12-16.)
The Commissioner counters that the ALJ fulfilled his duty because, among
other things, he possessed sufficient records from the applicable time
period to render a decision. (See Dkt. No. 16 at 12-14.) Again, the court
agrees with the Commissioner.
While the ALJ has an affirmative obligation to develop the
administrative record, his duty to do so is not without limit. See Guile v.
Barnhart, No. 5:07-cv-259, 2010 WL 2516586, at *3 (N.D.N.Y. June 14,
2010); see also 20 C.F.R. § 404.1512(d) (stating that generally, a complete
record contains a “medical history for at least the [twelve] months
preceding the month in which” the claimant files her application). Indeed, if
all of the evidence received is consistent and sufficient to determine
whether a claimant is disabled, further development of the record is
unnecessary, and the ALJ may make his determination based upon that
evidence. See 20 C.F.R. § 404.1520b(a). Consistent with that notion,
where there are no “obvious gaps” in the record, the ALJ is not required to
seek additional information. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir.
1999).
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Here, Polhamus takes exception with the lack of evidence regarding
his mental impairment. (See Dkt. No. 13 at 12-16.) However, Polhamus
did not begin suffering from bipolar disorder until two months before the
hearing, well after “the date last insured.” (See Tr. at 15, 18, 49-51; Dkt.
No. 16 at 12.) In fact, when he filed his application, Polhamus made no
mention of mental impairments. (See Tr. at 100.) Still, the ALJ questioned
Polhamus about his mental condition, (see id. at 49-51), and considered
the relevant treatment records that addressed Polhamus’s previous
complaints of anxiety and depression, (see, e.g., id. at 18). Though he
occasionally received medication from his primary care provider based on
his complaints of anxiety and depression, (see id. at 227-30, 241, 256),
there is no evidence that Polhamus sought additional treatment for either
condition. Thus, the only pertinent records of a mental impairment came
from Polhamus’s primary care physician, which the ALJ explicitly cited in
his decision.3 (See id. at 18.) Based on this evidence, which contains no
3

Notably, Polhamus was only able to recount one specific instance
where his mental impairment affected his activities of daily living—i.e.,
when he forgot to go to the gym. (See Tr. at 50.) However, it appears
from his testimony that the onset of the difficulties he testified
about—namely the inability to concentrate and problems interacting with
his wife—began when he was diagnosed with bipolar disorder, which
again, occurred outside of the relevant period. (See Tr. at 18, 49-51.)
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obvious gaps or inconsistencies, the court concludes that the ALJ’s
development of the record was sufficient to render a disability
determination. See Rosa, 168 F.3d at 79 n.5. Polhamus’s argument to the
contrary is rejected.
C.

RFC Determination
Polhamus’s final argument regarding the ALJ’s RFC4 assessment is

also without merit because it assumes the existence of mental
impairments. (See Dkt. No. 13 at 16-19.) However, because the court has
already found that ALJ’s assessment of Polhamus’s mental impairments, or
the lack thereof, was legally sound, (see Tr. at 18; see also Dkt. No. 16 at
14-20), it suffices to say that Polhamus’s argument is untenable.5 As such,
the ALJ’s RFC assessment is affirmed. (See id. at 19-21.)
D.

Remaining Findings and Conclusions

4

A claimant’s RFC “is the most [he] can still do despite [his]
limitations.” 20 C.F.R. § 404.1545(a)(1). In assessing a claimant’s RFC,
an ALJ must consider “all of the relevant medical and other evidence,”
including a claimant’s subjective complaints of pain. Id. § 404.1545(a)(3).
An ALJ’s RFC determination must be supported by substantial evidence in
the record. See 42 U.S.C. § 405(g). If it is, that determination is
conclusive and must be affirmed upon judicial review. See id.; Perez v.
Chater, 77 F.3d 41, 46 (2d Cir. 1996).
5

Notably, Polhamus does not contest the ALJ’s assessment of his
physical impairments. (See generally Dkt. No. 13.)
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After careful review of the record, the court affirms the remainder of
the ALJ’s decision as it is supported by substantial evidence.
VII. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that the decision of the Commissioner is AFFIRMED and
Polhamus’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
February 1, 2013
Albany, New York

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