Tenenbaum v. Commissioner of Social Security

Filing 25

MEMO ENDORSEMENT on re: 24 Report and Recommendations. ENDORSEMENT: No objection having been filed and the time for making objections has expired. After review, the Court adopts the learned Magistrate's report as its opinion. The Commissioner's motion for judgment on the pleadings is GRANTED. Clerk to enter judgment accordingly and close case. (Signed by Judge Colleen McMahon on 6/1/2015) (kgo)

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·-------------------- ------Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 1 of 21 ITI~i;'iD:~~~7~:-c==i1 '" ( -: i UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK --------------------------------------------------------------)( EUGENE TENENBAUM, ~· ':'°·;I l " •• ~ ... ·: : •• • .. : ~ '!;:, • ; Plaintiff, -against- REPORT AND RECOMMENDATION COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------------------------)( KEVrN NATHANIEL FO)( UNITED STA TES MAGISTRATE JUDGE TO THE HONORABLE COLLEEN MCMAHON, UNITED STA TES DI USDC SDNY DOCUMENT ELECTRO:\ICALLY FILED n<>C #: ·- JtfJE1D--~-~-~)-:_=----:--~+--l~-~~=-!i On September 25, 2013, Eugene Tenenbaum ("Tenenbaum") commenced this action QIQ se against the Commissioner of Social Security ("Commissioner"), seeking review of an n .g .... administrative law judge's ("ALJ") decision finding him ineligible for Supplemental Security Income ("SST") benefits, pursuant to 42 U.S.C. §§ 401 et seq. The complaint was accompanied 9 e:. by the July 22, 2013 Notice of Appeals Council Action denying review of the ALJ's January 25, 2012 decision. Before the Court is the Commissioner's motion for judgment on the pleadings, made pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Tenenbaum submitted no papers in opposition to the Commissioner's motion and the motion is therefore unopposed. BACKGROUND Administrative Procedural History Tenenbaum filed an application for SSI benefits on August 27, 2010, alleging that he had been disabled since September I, 2007, due to drowsiness, obsessive-compulsive personality disorder, attention-deficit-hyperactivity disorder, multi-level spondylolisthesis, osteoarthritis of Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 2 of 21 he requested a hearing before an ALJ. On December 16, 2011, Tenenbawn appeared with a representative at a hearing before ALJ Robert C. Dorf. On January 25, 2012, the ALJ issued a decision finding that Tenenbawn was not disabled because he has the residual fimctional capacity to perform mediwn work with certain limitations and, although Tenenbawn is unable to perform his past work, a significant rn.nnber ofjobs exist in the national economy that he can perfonn Tenenbawn requested a review by the Social Security Administration's Appeals Council of the ALJ's decision. That request was denied on July 22, 2013, making the ALJ's decision the final decision of the Corrnnissioner. This action followed. Tenenbawn alleges that he is entitled to receive SSI benefits because he suffers from psychological disorders including anxiety, obsessions, compulsions, bipolarity, depression and mania, as well as spine and hip joint impairments, including arthritis. The ALJ's Decision The issue before the ALJ was whether Tenenbawn was disabled from August 27, 2010, the date his application for SSI benefits was filed, to the date of the decision. The ALJ found that Tenenbawn: (I) has not engaged in substantial gainful activity since August 27, 20 IO; (2) has the following severe impairments: a bipolar disorder, an obsessive-compulsive disorder, an attention-deficit-hyperactivity disorder, and osteoarthritis of the spine and hips; (3) does not have an impairment or combination of impairments that meets or medically equals one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix I (''Listings"); (4) has the residual fimctional capacity to perform mediwn work as defined in 20 C.F.R. § 416.967(c), 1 "Mediwn work involves lifting no rrore than 50 pounds at a time with frequent lifting or carrying ofobjects weighing up to 25 pounds. If someone can do mediwn work, [the Social Security Administration determines] that he or she can also do sedentary and light work." 20 C.F.R. § 416.967(c). 1 2 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 3 of 21 except that he has the capacity to perfonn only simple and repetitive tasks in a low-stress environment, which is defined as requiring no decision-making; (5) is unable to perfonn any past relevant work; and (6) taking into consideration his age, education, work experience and residual fimctional capacity, is able to perfonnjobs that exist in significant munbers in the national economy. The ALJ concluded that Tenenbawn has not been under a disability from August 27, 2010, the date his application for SSI benefits was filed. In discussing Tenenbawn's impainnents, which the AU found were properly characterized as "severe," the AU noted that their existence was confinred by the medical evidence contained in the record for this case. The AU also noted that the impainnents resuhed in limitations that significantly affected Tenenbawn's ability to perfonn basic work activities. The ALJ noted that Tenenbawn has both psychological and physical impainnents and that the medical evidence shows that his psychological impainnents include bipolar disorder, an obsessive-compulsive disorder and attention-deficit-hyperactivity disorder. The AU noted that the symptoms associated with these impainnents included poor sleep, feelings of worthlessness, increased energy, racing thoughts and anxiety. As to Tenenbawn's physical impainnents, the AU found that the medical evidence contained in the record showed that Tenenbawn had a history of arthritis of the hips and back. The AU noted that a medical report dated March 3, 2009, indicated hip pain and back pain causing some difficuhy with excessive bending and kneeling and prolonged walking and standing. On March 3, 2009, Tenenbawn was examined by internist Dr. Ting-Chin David Shen (''Dr. Shen'') at New York Presbyterian Hospital Dr. Shen found that Tenenbawn had suffered from osteoarthritis of both hips for the previous five years and spinal bifida at the S 1 and upper thoracic level, and that he experienced drowsiness after breakfust. Dr. Shen noted that x-rays of 3 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 4 of 21 Tenenbawn's hips from November 2008 showed no displaced fracture or dislocation of the hip and x-rays of his thoracic spine revealed no evidence of displaced fracture or mal-aligrnnent. Dr. Shen's assessment was that Tenenbawn was able to control his osteoarthritis with home exercise. Dr. Shen also fmmd that Tenenbawn was "employable" with functional limitations; specifically, his ability to bend and kneel were limited by his back problems and he should avoid work that required excessive bending and kneeling. In addition, Dr. Shen found that prolonged standing or walking caused pain in the hips. Tenenbawn visited Dr. Shen again on Jtme 4, 2009, and December 14, 2009. Dr. Shen reported that Tenenbawn was taking Wellbutrin, which improved his rmrning drowsiness. The plaintiff visited Dr. Shen again on March 21, 2010, for a routine follow up. On that date, the doctor reported that a sleep study was "essentially negative." A physical examination of the plaintiff was tmremarkable and Dr. Shen concluded that the plaintiff's osteoarthritis was rmderately controlled with home exercise. On May 10, 2010, Tenenbawn was examined by Dr. Jeanne Goodman ("Dr. Goodman"), a psychiatrist, who completed a "Treating Physician's Wellness Plan Report" as part of the Human Resources Administration's public assistance program Dr. Goodman diagnosed depression with sleep apnea, obsessive-compulsive disorder and anxiety disorder, not otherwise specified. Dr. Goodman fotmd that the plaintiff experienced rmod symptoms, distractability with trouble concentrating, inability to complete tasks, psychormtor slowing and futigue, obsessive rwninations and anxiety. She determined that the plaintiff's prognosis was fuir, he was tolerating medication and attending weekly psychotherapy. She reported that the plaintiff was impaired by his symptoms and had poor functional capacity and an inability to focus and complete tasks and was temporarily unemployable. 4 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 5 of 21 On July 2, 2010, Tenenbaum visited Dr. Allison Michels-Pettine (''Dr. Michels-Pettine"), a rehabilitation specialist, complaining of lower back pain. Upon examination, Dr. MichelsPettine found the plaintiff had full hnnbar range of rootion, mild tenderness with mild flexion five-to-ten degrees and extreme end-range extension, but full active range of rootion otherwise. His L3 or IA spinous processes were tender to palpation. He had full strength bilaterally in the lower extremities and his reflexes were nonnal but diminished. Dr. Michels-Pettine assessed a hnnbar sprain in the L3 or IA and recorrnnended that the plaintiff continue his current treatment and slowly increase his exercise level and maintain posture. On October 18, 2010, Tenenbaum visited psychologist Dr. Howard Tedoff("Dr. Tedofl'') for a consultative examination in connection with his application for SSI benefits. He traveled alone to the examination, by public transportation, and reported that he lived in a cooperative apartment building, had poor appetite and nonnal sleeping habits. He reported occasional balance and coordination problem; and that his favorite activity was "lawsuits." He cooked, shopped, maintained his apartment and had a mutual helping relationship with a neighbor. He reported attention-deficit-hyperactivity disorder and obsessive-compulsive disorder and stated that he was depressed and anxious and seeing a psychiatrist weekly. Dr. Tedoff stated that the plaintiff is a college graduate with a degree in architecture, reads very well, was quite good at math, and was right-handed with good manual controls. Dr. Tedoff found the plaintiff to be cooperative with an adequate manner ofrelating, social skills, and overall presentation. He reported pain in the hip. The plaintiff's speech intelligibility was good; he spoke with a Polish accent, but conversation was interactive and relevant. His thought processes were coherent with no hallucinations, delusions, or disordered thinking, and he denied any suicidal or homicidal ideation. The plaintiff's roood was dysthymic with mild low 5 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 6 of 21 level depression. He could do calculations and serial sevens. His memory was intact, and insight and judgment were good and fuir, respectively, and his cognitive functioning was estimated to be at average or above, with a good fund ofinfonnation. Dr. Tedoff assessed depressive disorder, secondary to physical issues, and obsessive-compulsive disorder (OCD) and attention-deficit-hyperactivity disorder (ADHD), inattentive type, as alleged by the plaintiff In a medical source statement, Dr. Tedoff stated that the plaintiff could follow and understand simple directions and instructions and perform simple tasks, his attention and concentration skills were good, but he was not able to maintain a regular schedule. His decisionmaking skills were appropriate, he could relate adequately to others, and might not be able to deal adequately with stress in the workplace. According to Dr. Tedo~ the prognosis for Tenenbaum being able to look for and obtain gainful employment was guarded to poor. He had last worked ten years earlier and has significant physical problems that have affected his ability to seek employment. A consultative physical examination was performed by Dr. Louis Tranese (''Dr. Tranese"), an orthopedist, on October 18, 2010. On that occasion, the plaintiff complained of bilateral hip pain and lower back pain secondary to arthritis, and mid-thoracic back pain, which he descnbed as a dull, crampy, stiff ache localiz.ed in the hnnbar and thoracic region. He did not complain ofradiation of his back pain to the legs, or mnnbness, tingling, or weakness of the lower extremities. Activities such as climbing stairs, long distance walking, and standing long periods aggravated his hip pain and his back pain was aggravated by frequent bending and heavy lifting. Dr. Tranese reported that Tenenbaum was independent and showered, bathed, dressed, and groomed himself daily, cooked daily, shopped one to two tim::s a week, and perfonned "cleaning and laundry chores twice per year." 6 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 7 of 21 Upon physical examination, the plaintiff was in no acute distress with nonnal gait. He could walk on his heels and toes without difficuhy. He could squat fully, did not need help changing for the examination or getting on and off the examination table, and was able to rise from a chair without difficuhy. The plaintiff had full tlexion, extension, lateral tlexion, and rotary rmvements bilaterally ofhis cervical spine and no cervical or paracervical pain or spasm His thoracic and lumbar spines had full tlexion, extension, lateral tlexion, and rotary rmvements bilaterally. The plaintiff reported mild tenderness to palpation in the bilateral thoracic and lumbar paraspinal region. There was no spasm, scoliosis, or kyphosis. The plaintiff had full range of rmtion of the hips, knees, and ankles bilaterally. X-rays of the plaintiffs lumbosacral spine showed straightening and x-rays of his right hip were negative. Dr. Tranese diagnosed bilateral hip pain and chronic back pain and diabetes by history. In a medical sm.rrce statement, Dr. Tranese stated that the plaintiff had mild-to-rmderate limitations in heavy lifting and mild limitations in frequent bending, squatting, and stair climbing. Dr. Tranese found that the plaintiff had no other physical limitations and his prognosis was good. The AU took note of Dr. Tranese's report as well as the other medical evidence included in the record and concluded that Tenenbamn's impairments resuhed in limitations that significantly affected his ability to perform basic work activities such as heavy lifting, concentration and social fimctioning and, hence, constituted severe impairments. The AU found that, although Tenenbamn's impairments are severe, they do not meet or medically equal the conditions descnbed in the relevant sections of the Listings. According to the AU, the criteria identified in the relevant paragraphs of sections 12.04 ("Affi::ctive Disorders'), 12.06 ("Anxiety Related Disorders'), and 12.08 (''Personality Disorders") of the Listings are not met in 7 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 8 of 21 Tenenbaum's case because, while the medical evidence substantiated the presence of an affective disorder, anxiety related disorder and personality disorder, as set forth in paragraph A of each section, the record did not establish the presence of the additional conditions required. Specifically, with respect to sections 12.04 and 12.06, the record railed to establish that the plaintiff either met the requirements set forth in paragraphs A and B, or met the requirements set forth in paragraph C; with respect to section 12.08, the record railed to show that the plaintiff met the requirements set forth in paragraphs A and B. See 20 C.F.R. Part 404, Subpart P, Appendix 1 §§ 12.04, 12.06, 12.08. Paragraph B of Listings 12.04, 12.06 and 12.08 requires, in each case, that the claimant's mental impairment resuh in at least two of the following conditions: (a) marked restriction of activities of daily living; (b) marked difficuhies in maintaining social fimctioning; (c) marked difficuhies in maintaining concentration, persistence or pace; or (d) repeated episodes of decornpensation, each of extended duration. See 20 C .F .R. Part 404, Subpart P, Appendix 1 §§ 12.04B, 12.06B, 12.08B. Paragraph C of Listing 12.04 requires a "[m]edically documented history of a chronic affective disorder of at least 2 years' duration that has caused roore than a minimal limitation of ability to do basic work activities, with symptom; or signs currently attenuated by medication or psychosocial support and one of the following: 1. Repeated episodes of decornpensation, each of extended duration; or 2. A residual disease process that has resuhed in such marginal adjustment that even a minimal increase in mental demands or change in the environment would be predicted to cause the individual to decornpensate; or 3. Current history of 1 or nx>re years' inability to fimction outside a highly supportive living arrangement, with an indication of continued need for such an arrangement. 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.04C. Paragraph C of Listing 12.06 requires 8 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 9 of 21 a "complete inability to fimction independently outside the area ofone's home." 20 C.F.R. Part 404, Subpart P, Appendix 1 § 12.06C. Addressing the criteria set forth in paragraph B of each listing, the AU fmmd as follows: with respect to the activities of daily living, the AU determined that Tenenbaum is only rmderately restricted because, as he reported in a fimction report dated October 4, 2010, he is able to travel independently using public transportation, and is able to take care of his personal needs, including cooking, shopping and doing household chores. The AU noted further that Tenenbaum testified at the administrative hearing that he lives alone and is able to reed and bathe himself. With respect to social fimctioning, the AU found, based on Tenenbaum's testirmny, that Tenenbaum has only rmderate difficulties; although he engages in no social activities, he gets along socially with people in his building and, although he has no friends, he frequents the hbrary during the day and says he has a good relationship with library staff. The ALJ noted that Tenenbaum is able to shop in the supermarket without conflict and talks to his sister on the phone and regularly comrrnmicates with his parents, brother and an old friend in Poland via electronic mail. With respect to concentration, persistence and pace, the AU found that Tenenbaum has mild difficulties: he writes critical articles on architecture and art engineering for Amazon.com and Architectural Digest and these articles have been published on line. He uses his computer extensively. In addition, although he rides his bicycle through red lights, which he notes is comnxm for bicyclists in New York City, he has never had an accident on his bicycle or struck a pedestrian and, in genera~ rides his bicycle safely. 9 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 10 of 21 With respect to decompensation, the ALJ fomd that Tenenbaum has experienced no episodes of decompensation of extended duration Tenenbaum testified that he was fired from his job for not "signing off' on corrupt practices of the New York State Donnitory Authority and that he had worked on CAD and AUTO computer programs for Columbia University. The AU noted that there was no evidence of a drug or alcohol problem and no suicide attempts or psychiatric hospitalizations. Based on these findings, the AU determined that the criteria indicated at paragraph B of each of the relevant sections of the Listings were not met in this case. In addition, the AU also fmmd that the evidence fu.iled to establish the presence ofany of the conditions described in paragraph C of sections 12.04 and 12.06. Consequently, the AU found that Tenenbaum's impairments, while severe, do not meet or medically equal the conditions descnbed in the relevant listings. At the next step of his analysis, the AU found that, based on consideration of the entire record, Tenenbaum has a residual fimctional capacity to perform medium work, as defined in 20 C.F.R. § 416.967(c), with certain limitations, that is, he is able to perform only simple repetitive tasks in a low stress environment, which is defined as requiring no decision-making. In reaching this conclusion, the AU noted that he considered, first, Tenenbaum's symptom; and the extent to which these were reasonably consistent with the objective medical evidence and other evidence, that is, whether there was an underlying medically determinable physical or mental impairment that could reasonably be expected to produce the reported symptom;. Secondly, the AU considered the intensity, persistence, and limiting effects of the symptoms to determine the extent to which they limit Tenenbaum's fimctioning. For this purpose, whenever statements about the intensity, persistence or fimctionally limiting effects of 10 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 11 of 21 pain or other symptoms were not substantiated by objective medical evidence, the AU made a finding on the credibility of the statements based on a consideration of the entire case record. The AU noted that he also considered opinion evidence. The AU recited the following evidence. Tenenbatnn lives alone; he testified that he hoards thin~ and that his apartment was "clogged." He stated that he sued the cooperative organization in the building in which he lives over rent payments for the period 2007 to 2009 but now realizes that his legal actions, which were not successful, were symptoms of his obsessivecompulsive disorder. The AU also took note of the evidence, set forth above, concerning Tenenbatnn's abilities with respect to the activities of daily living, his social fimctioning, his concentration and persistence, and any tendency toward decompensation in reaching his conclusion concerning Tenenbatnn's residual fimctional capacity. Regarding Tenenbatnn's physical capabilities, the AU noted that Tenenbatnn is able to do I 0-15 pull-ups with a chinning bar, as well as pushups, and is able to walk one mile and ride a bicycle loaded with groceries for five miles. The AU stated that he had considered Tenenbatnn's allegations and testimmy and found that his statements concerning the intensity, persistence and limiting effects of his symptoms were not credible for several reasons. First, the diagnostic tests performed did not support Tenenbatnn's allegations. While he complained of poor sleep, a sleep study was negative. Also, Tenenbatnn's complaints concerning his back and hip pain were not supported by the find~ of radiological studies; x-rays of his hips performed in November 2008 revealed no fracture, displacement or dislocation, and x-rays of the thoracic spine showed no evidence ofa displaced fracture or mal-a~nt. 11 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 12 of 21 Secondly, the AU determined that the findings of physical examinations did not support Tenenbaum's allegations. The consultative physical examination perfonred by Dr. Tranese on October 18, 2010, showed nonnal function, except for mild tenderness to palpation in the thoracic lwnbar spine area. Thirdly, the AU found that Tenenbaum's activity level was not consistent with his allegations. He used home exercise for symptom control of osteoarthritis and, as noted above, is able to do 10-15 pull ups with a chinning bar, as well as pushups, and is able to walk one mile and ride a bicycle loaded with groceries fives miles. Based on these and other fuctors already discussed, the ALl found that Tenenbaum's allegations and testitmny were not fully credible. Regarding opinion evidence, the AU noted that Dr. Goodman, a psychiatrist, reported on May 10, 2010, that Tenenbaum had poor functional capacity and is unable to focus or complete tasks. However, the ALl found that this assessment was contradicted by evidence of Tenenbaum's ability to write articles, exercise, attend appointmmts, take prescription medication and comply with treatment. As a resuh, the ALl gave Dr. Goodman's opinion little weight. The ALl also gave little weight to the statement in the psychiatric medical report provided by Tenenbaum's representative at the hearing that Tenenbaum has been unable to maintain a job for an extended period due to his psychiatric symptoms; the ALJ found that this was a vague statement that did not discuss in detail Tenenbaum's specific functional limitations. The ALJ also gave little weight to the opinion of Dr. Judith Joseph, a psychiatrist who examined Tenenbaum on December 13, 2010, that Tenenbaum is unable to function occupationally, based on his finding that her opinion was vague and inconsistent with evidence ofTenenbm.nn's various occupational activities. 12 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 13 of 21 The ALl gave sorre weight to the opinion of consultative psychologist Dr. Tedoff that Tenenbaum can follow and Wlderstand simple directions and instructions and perfonn simple tasks but not maintain a regular schedule. The ALl foWld that this opinion was based on a thorough examination of Tenenbaum. The ALl fotmd that the opinion of Dr. Shen, that Tenenbaum has a limited ability to bend and kneel and limitation in prolonged walking and standing, should be given little weight because it was not consistent with the findings on physical examination or with Tenenbaum's activity level The opinion of the consultative examiner that Tenenbaum has mild to rrnderate limitations in heavy lifting and mild restrictions in frequent bending, squatting and stair climbing was accorded sorre weight because, in the AIJ's view, it was based on findings arrived at through physical examination The ALl noted that Tenenbaum's past relevant work included positions as a computer programmer/drafter and as a construction maintenance supervisor. He noted that both jobs require light exertion but extensive decision-making and rrnre than simple and repetitive tasks. Consequently, the ALl determined that Tenenbaum cannot perfonn past relevant work. At the final step of his analysis, the ALl fotmd that Tenenbaum was tmable to perfonn any past relevant work and that, considering his age, education, work experience and residual functional capacity in the context of the rredical-vocational guidelines, jobs exist in significant numbers in the national economy that he can perfonn The ALl noted that, when a claimant cannot perform substantially all of the exertional demands of work at a given level of exertion, or has nonexertional limitations, the rredical-vocational rules may be used as a frarrework for decision making, unless there is a rule that directs a conclusion of"disabled" without considering the additional limitations. The ALJ fotmd that, in Tenenbaum's case, the additional 13 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 14 of 21 limitations involved had little or no effect on the relevant occupational base, that is, lll1Skilled medium work. He therefore determined that a finding of''not disabled" was appropriate llll.der the framework of the applicable rules. Commissioner's Contentions The Corrnnissioner contends that substantial evidence supports the AL.J's determination that Tenenbawn's severe impairments do not meet or medically equal any listed impairment and that he retains the residual functional capacity to do medium work with certain limitations. In addition, according to the Corrnnissioner, the ALJ assessed Tenenbawn's credibility properly, and his resulting findings should be accorded deference. The Corrnnissioner also contends that the ALJ follll.d properly that the restrictive opinions ofTenenbawn's treating physicians were not supported by the record and that he gave appropriate weight to the treating physicians' findings. Moreover, according to the Corrnnissioner, substantial evidence supports the ALJ's finding that Tenenbawn is capable of performing work that exists in the national economy. As noted above, Tenenbawn submitted no papers in opposition to the Corrnnissioner's rnotion and the rnotion is therefore llll.opposed. DISCUSSION Legal Standard "After the pleadings are closed-but early enough not to delay trial-a party may rnove for judgment on the pleadings." Fed. R Civ. P. 12(c). 'The court shall have power to enter, upon the pleadings and transcript of the record, a judgment affinning, modifying, or reversing the decision of the Corrnnissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). 14 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 15 of 21 A district court may set aside the Commissioner's detennination that a claimant is not disabled only if the fuctual findings are not supported by "substantial evidence" or if the decision is based on legal error. Substantial evidence ''means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion" Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (citations omitted). "Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, fuilure to adhere to the applicable regulations." Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (internal citations omitted). ''It is not the function ofa reviewing court to decide de nova whether a claimant was disabled, or to answer in the first instance the inquiries posed by the five-step analysis set out in the [Social Security Administration] regulations." Melville v. Apfel 198 F.3d 45, 52 (2d Cir. 1999) (citation omitted). To qualify for disability benefits, an individual must be unable "to engage in any substantial gainful activity by reason of any medically detenninable 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 nxmths." 42 U.S.C. § 423(d)(l)(A). The regulations establish a five-step process for determining a disability claim See 20 C.F.R. §§ 404.1520(a)(4). If at any step a finding of disability or nondisability can be made, the [Social Security Administration] will not review the claim finther. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a "substantial gainful activity." At step two, the [Social Security Administration] will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inqlriry proceeds to step four, at which the [Social Security Administration] assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant 15 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 16 of 21 survives the fuurth stage, the fifth, and finai step reqllires the [Social Security Administration] to consider so-called "vocational fuctors" (the claimant's age, education, and past work experience), and to detennine whether the claimant is capable of perfonning other jobs existing in significant numbers in the national economy. Barnhart v. Thomas, 540 U.S. 20, 24-25, 124 S. Ct. 376, 379-80 (2003) (citations omitted). If the AL.J finds that a claimant's "impairment(s) does not meet or equal a listed impairment, [the AU] will assess and make a finding about [the claimant's] residual fimctional capacity based on all the relevant medical and other evidence." 20 C.F.R. § 404.1520(e). Residual functional capacity "is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis, and the [residual fimctional capacity] assessment rrrust include a discussion of the individual's abilities on that basis." SSR 96-8P, 1996 WL 374184. The residual fimctional capacity assessment is used at step four of the sequential evaluation process to detennine if the claimant can do past relevant work, and at step five to detennine if the claimant can adjust to other work. See 20 C.F.R. § 404.1520(e). In meeting her burden of proofon the fifth step of the sequential evaluation process described above, the Commissioner, lll1der appropriate circlll11Stances, may rely on the medical-vocational guidelines contained in 20 C.F.R. Part 404, Subpart P, App. 2, corrnnonly referred to as "the Grid." The Grid takes into accolll1t the claimant's [residual fi.mctional capacity] in conjunction with the claimant's age, education and work experience. Based on these fuctors, the Grid indicates whether the claimant can engage in any other substantial gainful work which exists in the national economy. Gray v. Chater, 903 F. Supp. 293, 297-98 (N.D.N.Y. 1995). With regard to a claimant's credibility, "[w]hen determining a claimant's [residual fimctional capacity], the AL.J is reqllired to take the claimant's reports of pain and other limitations into accolll1t, but is not reqllired to accept the claimant's subjective complaints 16 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 17 of 21 without question; he may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record." Genier v Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted). lf"a treating source's opinion on the issue(s) of the nature and severity of [the claimant's] impainrent(s) is well-supported by m:dically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in [the claimant's] case record, [it will be given] controlling weight." 20 C.F.R. § 416.927(c)(2). Unless the AU gives a treating physician's opinion controlling weight, the AU must consider the following fu.ctors in deciding what weight to accord to any m:dical opinion: ( 1) the existence ofan examining relationship; (2) the existence of the treatm:nt relationship, the length of the treatm:nt relationship and the frequency of examination; (3) supportability, that is, more weight is given the more relevant the evidence and the better the explanation presented are in supporting an opinion; (4) consistency of the opinion with the record; (5) specialization; and (6) other relevant fu.ctors. See C.F.R. § 416.927(c). Application of Legal Standard Whether the AU's Decision Is Supported by Substantial Evidence Substantial evidence supports the AU's finding that Tenenbaum does not have an impainrent that m:ets or medically equals the impainrents included in the relevant sections of the Listings. As noted above, the AU considered the criteria for Listings 12.04, 12.06 and 12.08 and found that the m:dical evidence did not support a finding that Tenenbaum's condition m:ets the criteria for the relevant portions of those listings. The AU also concluded reasonably that Tenenbatun retained the residual fi.mctional capacity to perform m:dium work, with the exception that he is able to perform only repetitive 17 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 18 of 21 tasks in a low stress environment. In detennining Tenenbawn's residual functional capacity, the ALJ considered, inter alia, whether Tenenbawn's allegations and testim:my about the intensity, persistence and limiting effects of his symptoms were credible. The ALJ concluded that they were not credible to the extent that they were inconsistent with: (1) diagnostic tests perfonred, including a sleep study radiological studies and x-rays of the hips and thoracic spine; (2) the findings of physical examinations, including the examination perfonred by consultative examiner Dr. Tranese in October 2010; and (3) Tenenbawn's activity level as reported by him and as indicated in statements from physicians, including Dr. Shen and Dr. Tranese. The ALJ's assessment ofTenenbawn's credibility was proper. The ALJ credited Tenenbawn's testim:my about his symptoms and that they could reasonably be expected to be caused by his medically determinable impainrents. However, he fomd Tenenbawn's statements about the intensity, persistence and limiting effects of these symptoms were not corroborated by the medical evidence and other evidence in the record, including Tenenbawn's work history. In reaching his conclusion, the ALJ reviewed the medical evidence and gave less weight, appropriately, to the findings ofTenenbawn's treating physicians, including Dr. Goodman and Dr. Joseph, because he fomd that these were contradicted by other evidence, including the plaintiff's own testimony regarding his activities and the findings on physical examination At the same time, the ALJ gave some weight to the opinions of Dr. Shen, as well as the consultative examiner, Dr. Tranese, and the consultative psychologist, Dr. Tedofi; because he determined that these opinions were based on a thorough examination of the plaintiff. At the final step of his analysis, the ALJ determined that other work exists in the national economy that Tenenballlll can perform In arriving at this determination, the ALJ considered Tenenballlll's residual functional capacity, age, level of education and work experience. The 18 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 19 of 21 AU then determined to apply Rules 203.03 and 203.04 of the medical-vocational guidelines. As the Corrnnissioner concedes, the AU erred in his determination to apply Rules 203.03 and 203 .04, because they pertain to individuals "closely approaching retirement age" whereas Tenenbatun, who was 55 years old at the time the AU issued his decision, belonged to the category "advanced age." Persons fulling into the category "advanced age" are properly assessed in Rules 203 .10 through 203 .17. In Tenenbaum's case, taking into considering his education and previous work experience, the AU should have applied Rules 203.11 and 203.12. See 20 C.F.R. Part 404, Subpart P, Appendix 2, Rules 203.11, 203.12. However, a review of the medical-vocational guidelines reveals that, under both sets of rules, a finding of"not disabled" is indicated. Hence, under the circmmtances, it appears that the AU's error with respect to the designation ofTenenbaum's age classification was harmless, insofur as it did not aher the finding as to disability. Moreover, the burden of showing that the error was hannful fulls on the plaintiff in this case. See Shinseki v. Sanders, 556 U.S. 396, 409-10, 129 S. Ct. 1696, 1705-06 (2009) ("[T]he burden of showing that an error is hannful nonnally fulls upon the party attacking the agency's determination'}. The plaintiff has not met that burden and also has railed to show that he suffered any prejudice from the AU's erroneous classification of his age. See id. at 409. ("[T]he party that seeks to have a judgment set aside because of an erroneous ruling carries the burden of showing that prejudice resuhed. '') (citation and internal quotation marks omitted). When the limitations and restrictions imposed by a claimant's impairments and related symptoms, such as pain, affect his ability to meet both the exertional and nonexertional demands ofa job, the AU may use the medical-vocational guidelines to arrive at a decision concerning the claimant's ability to performjobs in the economy. See 20 C.F.R. § 416.969a(d). In this case, the AU found that the plaintiff's mental and physical impairments did not limit his 19 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 20 of 21 ability to perfonn unskilled work, including simple and repetitive tasks in a low-stress environment defined as requiring no decision-making. Thus, the plaintiffs exertional and nonexertional limitations did not resuh in an additional loss of work capacity, and the ALJ's use of the rredical vocational guidelines was pennissible in this case. For these reasons, the ALJ's finding that TenenbaIDTI is not disabled is supported by substantial evidence. Whether the ALJ's Decision Was Contrary To Law The ALJ followed all five steps of the sequential analysis required to be perforrred in detennining disability. At each of the five steps, he articulated and applied the correct legal standard in rmking his detenninations. The Court perceives no legal error in the ALJ's detenninations. Thus, the ALJ's decision is not contrary to law. RECOMMENDATION For the reasons set forth above, I recornrrend that the defendant's rmtion for judgment on the pleadings, Docket Entry No. 19, be granted. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report to file written objections. See also Fed. R. Civ. P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Colleen McMahon, 500 Pearl Street, Room 1640, New York, New York, 10007, and to the chambers of the lllldersigned, 40 Centre Street, Room425, New York, New York, 10007. Any requests for an extension oftirre for filing objections nrust be directed to Judge McMahon. Failure to file objections within fourteen (14) days will result in a waiver of objections and 20 Case 1:13-cv-06832-CM-KNF Document 24 Filed 02/25/15 Page 21 of 21 will preclude appellate review. See Thomas v. Arn, 474 lJ.S. 140, 106 S. Ct. 466 (1985); Cephas v. Nash, 328 F.3d 98, 107 (2d Cir. 2003). Dated: New York, New York February 25, 2015 Respectfully submitted, Copy mailed to: KEVIN NA THANIEL FOX UNITED STATES MAGISTRATE JUDGE l~~:,gk Eugene Tenenbaum 21

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