Mikus v. Colvin
MEMORANDUM-DECISION & ORDER that the Acting Commissioner's decision denying disability benefits is REVERSED and this matter be REMANDED to the Acting Commissioner, pursuant to Sentence Four of 42 U.S.C. 405(g), for further proceedings. Signed by Magistrate Judge Daniel J. Stewart on 4/7/2017. (see)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
DEBRA S. MIKUS,
Civ. No. 6:16-CV-284
NANCY A. BERRYHILL,2
Acting Commissioner of Social Security Administration,
OFFICE OF PETER W. ANTONOWICZ
Attorney for Plaintiff
148 West Dominick Street
Rome, New York 13440
PETER W. ANTONOWICZ, ESQ.
SOCIAL SECURITY ADMINISTRATION
Attorney for Defendant
Office of Regional General Counsel
26 Federal Plaza – Room 3904
New York, New York 10278
SIXTINA FERNANDEZ, ESQ.
DANIEL J. STEWART
United States Magistrate Judge
MEMORANDUM-DECISION and ORDER
In this action, Plaintiff Debra Mikus moves, pursuant to 42 U.S.C. § 405(g), for review of
a decision by the Acting Commissioner of Social Security denying her applications for Disability
Upon the Plaintiff’s consent, the United States’s general consent, and in accordance with this District’s
General Order 18, this matter has been referred to the undersigned to exercise full jurisdiction pursuant to 28 U.S.C. §
636(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 5 & General Order 18.
Nancy A. Berryhill became Acting Commissioner of Social Security on January 23, 2017. Pursuant to Federal
Rule of Civil Procedure 25(d), Nancy A. Berryhill is substituted as the Defendant in this suit.
Insurance Benefits (“DIB”) and Period of Disability (“POD”).3 Based upon the following
discussion, the Acting Commissioner’s decision denying Social Security benefits is reversed and
the matter is remanded for further proceedings.
Mikus, born on May 19, 1962, filed applications for DIB and POD on April 14, 2013,
claiming an inability to work as of June 9, 2011, due to a variety of ailments, including depression,
fibromyalgia, migraine, and pinched nerve at C5 and L5. Dkt. No. 9, Admin. Transcript [hereinafter
“Tr.”] at pp. 20, 36, 153-54, & 169. Mikus graduated high school and obtained an associate’s degree
in business administration. Id. at p. 37 & 185. Her past work includes administrative clerk,
secretary, school cafeteria cook, and cashier. Id. at p. 19.
Mikus’s disability application was denied on initial review. Id. at pp. 67, 68-76, & 77-82.
On September 25, 2014, a Hearing was held before Administrative Law Judge (“ALJ”) Lisa B.
Martin wherein testimony was procured from Mikus, who was accompanied by an attorney, and
from Barry J. Brown, a vocational expert (“VE”). Id. at pp. 32-66. On December 22, 2014, ALJ
Martin issued an unfavorable decision finding that Mikus was not disabled. Id. at pp. 8-25. On
February 1, 2016, the Appeals Council concluded that there was no basis under the Social Security
Regulations to grant Plaintiff’s request for review, thus rendering the ALJ’s decision the final
determination of the Acting Commissioner. Id. at pp. 1–7. Exhausting all of her options for review
through the Social Security Administration’s tribunals, Plaintiff now brings this appeal.
This case has proceeded in accordance with General Order 18, which set forth the procedures to be followed
when appealing a denial of Social Security benefits. Both parties have filed Briefs, though oral argument was not heard.
Dkt. Nos. 12, Pl.’s Br., & 13, Def.’s Br.
A. Standard of Review
Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to employ a de
novo review, but rather to discern whether substantial evidence supports the Commissioner’s
findings and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d
964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324, 325–26 (N.D.N.Y. 1997) (citing, inter
alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence
is “more than a mere scintilla” of evidence scattered throughout the administrative record; rather,
it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938); see also Williams ex. rel.
Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To determine on appeal whether an
[Administrative Law Judge’s] findings are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which detracts from its weight.” Williams ex.
rel. Williams v. Bowen, 859 F.2d at 258.
The Administrative Law Judge (“ALJ”) must set forth the crucial factors supporting the
decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where
the ALJ’s findings are supported by substantial evidence, the court may not interject its
interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d at 258; 42
U.S.C. § 405(g). However, where the weight of the evidence does not meet the requirement for
substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were
applied, the ALJ’s decision may not be affirmed. Johnson v. Bowen, 817 F.2d at 986.
B. Determination of Disability
To be considered disabled within the meaning of the Social Security Act, a plaintiff must
establish an “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). Furthermore, the claimant’s physical or mental impairments must be of such severity
as to prevent engagement in any kind of substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner follows a five-step analysis
set forth in the Social Security Administration Regulations. 20 C.F.R. § 404.1520. At Step One,
the Commissioner “considers whether the claimant is currently engaged in gainful activity.” Berry
v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in substantial gainful
activity, he or she is not disabled and the inquiry ends. 20 C.F.R. § 404.1520(b). If the claimant is
not engaged in substantial gainful activity, the Commissioner proceeds to Step Two and assesses
whether the claimant suffers from a severe impairment that significantly limits his or her physical
or mental ability to do basic work activities. Id. at § 404.1520(c). If the claimant suffers from a
severe impairment, the Commissioner considers at Step Three whether such impairment(s) meets
or equals an impairment listed in Appendix 1, in Part 404, Subpart P of the Regulations. Id. at §
404.1520(d). The Commissioner makes this assessment without considering vocational factors such
as age, education, and work experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant
has such an impairment the inquiry ceases as he or she is presumed to be disabled and unable to
perform substantial gainful activity. Id. If the claimant’s impairment(s) does not meet or equal the
listed impairments, the Commissioner proceeds to Step Four and considers whether the claimant has
the residual functional capacity (“RFC”)4 to perform his or her past relevant work despite the
existence of severe impairments. 20 C.F.R. § 404.1520(e). If the claimant cannot perform his or
her past work, then at Step Five, the Commissioner considers whether the claimant can perform any
other work available in the national economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. §
Initially, the burden of proof lies with the claimant to show that his or her impairment(s)
prevents a return to previous employment (Steps One through Four). Berry v. Schweiker, 675 F.2d
at 467. If the claimant meets that burden, the burden then shifts to the Commissioner at Step Five
to establish, with specific reference to medical evidence, that the claimant’s physical and/or mental
impairment(s) are not of such severity as to prevent him or her from performing work that is
available within the national economy. Id.; 42 U.S.C. § 423(d)(2)(A); see also White v. Sec’y of
Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making this showing at Step Five, the
claimant’s RFC must be considered along with other vocational factors such as age, education, past
work experience, and transferability of skills. 20 C.F.R. § 404.1520(f); see also New York v.
Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
C. ALJ Martin’s Findings
As noted above, Mikus and VE Brown testified during the Hearing. Tr. at pp. 32-66. In
addition to such testimony, the ALJ had Mikus’s medical records consisting of treatment reports and
opinions from various treating and/or consulting physicians. Id. at pp. 239-560.
“Residual functional capacity” is defined by the Regulations as follows: “Your impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what you can do in a work setting. Your
residual functional capacity is what you can still do despite your limitations.” 20 C.F.R. § 404.1545(a).
ALJ Martin noted initially that, for DIB purposes, Mikus met the insured status requirements
of the Social Security Act through September 30, 2016.5 Id. at pp. 11 & 13. Using the five-step
disability evaluation, ALJ Martin found that: (1) Mikus had not engaged in any substantial gainful
activity since June 9, 2011, the alleged onset disability date; (2) she has severe medically
determinable impairments, namely cervical and lumbar spine disorders, fibromyalgia, hypertension,
restless leg syndrome, and obesity; but her hypothyroidism and depression were not deemed to be
severe; (3) her severe impairments do not meet nor medically equal any impairment listed in
Appendix 1, Subpart P of Social Security Regulation No. 4; (4) she retains the RFC to perform the
full range of sedentary work with certain limitations, and, as such, she could not return to any of her
prior work; but, (5) considering her age, education, work experience, RFC, VE testimony, and using
the Medical-Vocational Guidelines as a framework, Mikus could perform work available in the
national economy and was therefore not disabled. Id. at pp. 8-25.
D. Plaintiff’s Contentions
In support of her appeal, Plaintiff asserts that the ALJ erred at Step Two when she failed to
discuss Plaintiff’s migraine headaches and deem it severe. Dkt. No. 12, Pl.’s Br., at pp. 7-10. She
also asserts that the ALJ failed to properly analyze the medical evidence and improperly assessed
opinion evidence when she failed to give controlling weight to the opinions rendered by her treating
1. Step Two – Severity Assessment
At Step Two, the ALJ must determine whether an individual has an impairment or
In order to qualify for DIB, Mikus’s disability must have commenced at a time when she met the insured status
requirements as provided by the Social Security Act. 42 U.S.C. §§ 423(a)(1)(A) & (c)(1); 20 C.F.R. §§ 404.130 &
combination of impairments that are severe. 20 C.F.R. § 404.1520. The Second Circuit has warned
that the Step Two analysis may not do more than “screen out de minimis claims.” Dixon v. Shalala,
54 F.3d 1019, 1030 (2d Cir. 1995) (quoted in de Roman v. Barnhart, 2003 WL 21511160, at *11
(S.D.N.Y. July 2, 2003)). An impairment is not severe at Step Two if it does not significantly limit
a claimant’s ability to do basic work activities. 20 C.F.R. § 404.1521(a). The Regulations define
“basic work activities” as the “abilities and aptitudes necessary to do most jobs,” examples of which
(1) Physical functions such as walking, standing, lifting, pushing, pulling, reaching,
carrying, or handling;
(2) Capacities for seeing, hearing, and speaking;
(3) Understanding, carrying out, and remembering simple instructions;
(4) Use of judgment;
(5) Responding appropriately to supervision, co-workers and usual work situations;
(6) Dealing with changes in a routine work setting.
20 C.F.R. § 404.1521(b); see also Social Security Ruling 85-28, 1985 WL 56856, at *3-4, Titles
II and XVI: Medical Impairments That Are Not Severe (S.S.A. 1985).
If a claimant has multiple impairments, the combined effect of all impairments should be
considered “without regard as to whether any such impairment, if considered separately, would be
of sufficient severity.” Id. at § 404.1523; 42 U.S.C. § 423(d)(2)(B); see also Schulte v. Apfel, 2000
WL 362025 (W.D.N.Y. Mar. 31, 2000). “A finding of
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