CHRISTIAN F. HUMMEL, Magistrate Judge.
Plaintiff
Plaintiff filed an application for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Dkt. No. 14-2 at 6-12. A hearing was held before an administrative law judge ("ALJ"), and, on December 21, 2011, the ALJ issued a fully favorable decision to plaintiff, finding her disabled as of September 29, 2009.
By notice dated March 26, 2012, the SSA advised plaintiff of a change in her disability benefits; specifically, that they could not pay her all of the Social Security benefits previously withheld from the period of March 2010 through December 2011, as she had received SSI money throughout the same period. Dkt. No. 14-2 at 31. The SSA advised plaintiff that because she had received SSI money for the same period, her Social Security benefits would be reduced by $14,196.75.
At some point in 2016, plaintiff contacted the SSA regarding her past-due benefits. Dkt No. 14-2 at 3. By letter dated December 20, 2016, the SSA informed plaintiff that she had been advised of her past-due benefits in a March 26, 2012 letter, and that she failed to timely appeal that decision. Dkt. No. 14-2 at 34. The letter further informed plaintiff that if she wished to pursue an appeal, she must complete a Statement of Good Cause explaining why she did not file a timely appeal.
"[F]ederal courts are courts of limited jurisdiction and, as such, lack the power to disregard such limits as have been imposed by the Constitution or Congress."
The Commissioner argues that the Court does not have jurisdiction over this matter because "there has been no `final decision' of the Commissioner, as required by section 205(g) of the Act[.]" Dkt. No. 14-1 at 1.
The procedures which govern the judicial review of final decisions made by the Commissioner under Title II and Title XVI of the Social Security Act are set forth in 42 U.S.C. §§ 405 (g) and (h) which provide, in relevant part:
A plaintiff seeking judicial review by a federal court of a decision regarding Social Security disability benefits must exhaust the administrative remedies provided by the Social Security Administration in order to give rise to jurisdiction.
"The regulations promulgated by the Social Security Administration set forth a four-step process for exhausting administrative remedies."
If the claimant's request for review is untimely, "[t]he Appeals Council may dismiss [the request], . . . and such a dismissal is not reviewable by the district court because it is not a `final decision' within the meaning of § 405(g)."
Here, the record is clear that plaintiff failed to request an appeal of the SSA's March 2012 determination until December 2016 — well past sixty days of receiving notice of the reduction in benefits. The SSA issued a Notice of Change in Benefits dated March 26, 2012 advising plaintiff that her Title II benefits would be reduced by $14,196.75. Dkt. No. 14-2 at 31-33. The Notice further advised plaintiff that she had sixty days in which to request an appeal.
On December 20, 2016, the SSA sent plaintiff a letter in response to her inquiry regarding her past benefits. Dkt. No. 14-2 at 34. The letter advised plaintiff that, as she had previously been advised in the March 26, 2012 Notice, her past due benefits had been reduced.
In a letter dated March 10, 2017, the SSA informed plaintiff that, based on the facts provided by plaintiff, they were unable to extend the time limit, and, therefore, could not review her claim for benefits.
Thus, as it is clear that plaintiff failed to obtain a "final decision" within the meaning of § 405(g), "it is not reviewable by the district court[,] and plaintiff's complaint must be dismissed for lack of subject-matter jurisdiction.
Craig A. Jarvis, Esq., Jarvis & Modun, LLP, Montpelier, VT, for Plaintiff.
SAUSA Kristina D. Cohn, United States Attorney's Office, Burlington, VT, for Defendant.
John M. Conroy, United States Magistrate Judge
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In response to the Commissioner's Motion, Johnson states that he seeks a "good-cause hearing" to decipher whether Johnson has shown good cause for failing to timely appeal the May 2012 decision, and issuance of a decision that the Court can then review "for substantial evidence." (Doc. 9 at 6.) Johnson argues that the Commissioner's May 2012 decision is reviewable, despite Johnson's failure to timely file an appeal, because: (1) the decision was misleading; and (2) Johnson suffered a mental condition that impaired his ability to understand that decision. (Id. at 2-3.) Given those facts, Johnson claims his late request for an appeal of his prior DIB claim is excused. VT, for Plaintiff.
For the reasons stated below, the Court GRANTS the Commissioner's Motion (Doc. 7), DENIES Johnson's Motion to Remand (Doc. 9), and DISMISSES Johnson's Complaint.
On January 6, 2011, Johnson filed applications for DIB and supplemental security income (SSI), alleging disability beginning on November 1, 1999. (Doc. 7-5 at 4.) The DIB application was denied, and the SSI application was approved. After holding a hearing on Johnson's DIB claim, Administrative Law Judge (ALJ) Paul Martin issued a decision on May 25, 2012, finding that Johnson "was not disabled prior to December 1, 2010, but became disabled on that date and has continued to be disabled through the date of this decision." (Id. at 14 (citations omitted).) The decision clarifies that, although Johnson became disabled on December 1, 2010, he "was not disabled . . . through . . . the last date insured." (Id.) Attached to the ALJ's decision is a document prepared by the Social Security Administration titled "Notice of Decision — Partially Favorable." (Id. at 1.) That Notice was apparently mailed to Johnson on or around May 25, 2012. (Id.) Despite the Notice's instruction that Johnson "must file [his] written appeal [of the ALJ's May 2012 decision, if any,]
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Federal courts are courts of limited jurisdiction and may not decide cases over which they do not have subject-matter jurisdiction. Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-01 (2d Cir. 2000) ("If subject matter jurisdiction is lacking, the action must be dismissed."). In considering a motion to dismiss for lack of subject-matter jurisdiction, the court must accept as true all factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006); see Louis v. Comm'r of Soc. Sec., No. 09 Civ. 4725(JGK), 2010 WL 743939, at *1 (S.D.N.Y. Mar. 2, 2010). However, the burden is on the plaintiff to prove by a preponderance of the evidence that jurisdiction exists. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Unlike on a Rule 12(b)(6) motion, on a motion to dismiss for lack of subject-matter jurisdiction, the court is authorized to consider matters outside of the pleadings, including affidavits, documents, and testimony. See Kamen v. Am. Tel. & Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Therefore, in considering the Commissioner's Motion to Dismiss, the Court may consider the documents attached to it, including the May 2012 and December 2016 ALJ decisions, their corresponding notices, and the June 2015 Appeals Council order. (See Docs. 7-5, 7-6, 7-8.)
In social security cases, 42 U.S.C. § 405(g) "provides the exclusive means by which the federal courts may review a decision of the Commissioner." Feine v. Astrue, No. 2:08-CV-163, 2009 WL 688990, at *2 (D. Vt. Mar. 9, 2009); see Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007); 42 U.S.C. § 405(h) ("No findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided."). Section 405(g) states, in pertinent part: "Any individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action." 42 U.S.C. § 405(g). The Supreme Court has instructed that § 405(g) "clearly limits judicial review to a particular type of agency action[:] a final decision of the [Commissioner] made after a hearing." Califano v. Sanders, 430 U.S. 99, 108 (1977) (emphasis added) (internal quotation marks omitted). Therefore, "[a] final decision is `central to the requisite grant of subject matter jurisdiction.'" Fitzgerald v. Apfel, 148 F.3d 232, 234 (3d Cir. 1998) (quoting Mathews v. Eldridge, 424 U.S. 319, 328 (1976)); see Iwachiw v. Massanari, 125 Fed.Appx. 330, 331 (2d Cir. 2005) ("Pursuant to 42 U.S.C. § 405(g), an individual must obtain a final decision of the Commissioner before a federal court can review Social Security benefit determinations.") (internal quotation marks omitted).
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Here, neither the May 2012 decision nor the December 2016 decision ever became "final." The May 2012 decision did not become final because Johnson failed to request Appeals Council review within the 60-day period required under the regulations. See 42 U.S.C. § 405(g); 20 C.F.R. § 404.981. Johnson himself concedes this fact, stating in the Complaint that he "did not appeal the [May 2012] decision." (Doc. 1 at 2.) And the December 2016 decision did not become final because there was no administrative hearing, as again conceded by Johnson in the Complaint (see id. at 3). See 20 C.F.R. § 404.929; Matthews v. Chater, 101 F.3d 681, 1996 WL 146534, at *1 (2d Cir. 1996) (table); Faucette v. Colvin, No. 15 Civ. 8495 (AJP), 2016 WL 866350, at *3 (S.D.N.Y. Mar. 3, 2016) ("The Second Circuit interprets Section 405(g) to grant jurisdiction to review a[] [Social Security Administration] decision only if that decision follows an actual hearing on the merits." (citing Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983))). There was no administrative hearing because, as stated in the December 2016 decision, the ALJ declined to review the November 2015 claim on the grounds of res judicata, accurately finding that it involved "the same facts" and "the same issues" as the original January 2011 claim. (Doc. 7-8 at 7.) As discussed in more detail below, courts generally lack jurisdiction to review denials of benefits based on res judicata, because such denials are entered without a hearing. Yeazel v. Apfel, 148 F.3d 910, 911 (8th Cir. 1998). Moreover, when, as here, an untimely administrative appeal is dismissed on procedural grounds, there is no final decision on the merits of a claim by the Commissioner and therefore the claim is not reviewable. Hilmes v. Sec'y of Health & Human Servs., 983 F.2d 67, 70 (6th Cir. 1993); see Dryden v. Comm'r of Soc. Sec., Case No. 1:14-CV-496, 2015 WL 12698064, at *3 (S.D. Ohio Jan. 26, 2015) ("dismissal of an untimely appeal is not a `final decision' subject to review under § 405(g)"), Report and Recommendation adopted, Case No. 1:14CV496, 2015 WL 12698065 (S.D. Ohio Feb. 18, 2015)
For these reasons, the Commissioner's argument that the Court is without jurisdiction to review Johnson's claim has significant merit.
The inquiry does not end there, however, because there are certain circumstances in which a federal court may review a social security disability claim even though it has not been adjudicated on the merits in a hearing that has produced a "final decision." Specifically, an exception to the "no jurisdiction" rule exists where there is a "colorable constitutional claim." Califano, 430 U.S. 99, 109 ("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions."). Johnson argues that this action involves a colorable constitutional claim because the Complaint alleges a due process violation based on misleading statements contained in the Commissioner's May 2012 Notice of Decision. (Doc. 9 at 1-2 (citing Stieberger v. Apfel, 134 F.3d 37 (2d Cir. 1997); Byam v. Barnhart, 336 F.3d 172 (2d Cir. 2003)).) A colorable constitutional claim may in fact include allegations like these.
*
Applying this law, in Penner v. Schweiker, 701 F.2d 256 (3d Cir. 1983), the Third Circuit found that the plaintiff raised a colorable constitutional claim based on the Commissioner's failure to send a notice denying the plaintiff's request for reconsideration to the plaintiff's attorney who represented the plaintiff because of his mental disability. And in Aponte v. Sullivan, 823 F.Supp. 277, 282 (E.D. Pa. Mar. 4, 1993), the United States District Court for the Eastern District of Pennsylvania held that the plaintiff presented a colorable constitutional claim where the notice given to him failed to inform him of the adverse consequences of not filing a request for a hearing. See also Melloy, 1994 WL 689963, at *6 (constitutional claim presented, where plaintiff received "two notices — from the same agency, on the same date, denying disability benefits — that contain[ed] different information regarding the effect of certain administrative remedies"). In Escalera v. Commissioner, on the other hand, the Second Circuit held that the plaintiff's failure to exhaust administrative remedies was not excused because the relevant notices from the Social Security Administration "plainly stated that [the plaintiff] had to make his request [to appeal] in writing, within 60 days," and thus the Commissioner had not misled the plaintiff to believe that his in-person objections at an office of the Social Security Administration would satisfy the social security appeals process. 457 Fed.Appx. 4, 7 (2d Cir. 2011). Likewise, in Yeazel v. Apfel, 148 F.3d 910, 912 (8th Cir. 1998), the Eighth Circuit found that a notice denying the plaintiff's disability application — which "informed [the plaintiff] that he risked losing benefits should he fail to appeal and that he ought to appeal if he thought the denial was wrong" — was "not misleading or likely to induce an applicant to forego an appeal" and thus "satisfied due process."
Johnson's due process claim stems from the Commissioner's alleged act of misleading Johnson by labeling the May 2012 Notice of Decision "Partially Favorable," when in fact the decision is "unfavorable" according to Johnson, as it "does not find [Johnson] disabled at a time that he had insured status and does not award him any benefits." (Doc. 9 at 3.) Johnson explains that he did not appeal the May 2012 decision based on the inaccurate "Partially Favorable" label, which he believed meant he was being awarded benefits and thus should not "jeopardize [those] benefits" by appealing. (Id.) The Court finds Johnson's argument without merit, as the May 2012 Notice of Decision is accurate and sufficiently apprised Johnson of his administrative remedies. Moreover, the Court rejects Johnson's argument that he had a mental impairment that contributed to his being misled by the Notice of Decision.
*
Second, the Notice of Decision sufficiently apprises Johnson of his administrative remedies. Specifically, the Notice correctly states:
*
(Id. at 2.) Finally, the Notice accurately advises Johnson of his rights and limitations if he opts not to file an appeal:
(Id. at 3.) Despite this clear and accurate language, Johnson admits that he did not seek to appeal the May 2012 decision until November 2015, long past the 60-day period. (See Doc. 1 at 2.)
Johnson contends that his "late request for an appeal is . . . excused under Social Security Ruling 95-1p" (Doc. 1 at 3), which sets forth the criteria to determine whether good cause exists for missing the deadline to request appellate review of the denial of benefits. One of those criteria is "[w]hether [the claimant] had any physical, mental, educational, or linguistic limitations (including any lack of facility with the English language) which prevented [him] from filing a timely request or from understanding or knowing about the need to file a timely request for review." SSR 95-1p, 1995 WL 259487, at *1 (April 26, 1995) (quoting 20 C.F.R. § 404.911(a)). Johnson states in his Opposition that, although he "is not alleging that [the May 2012 Notice] was ineffective solely because of his mental capacity" (Doc. 9 at 2), "[h]is mental capacity may have played a role in his not realizing he was being misled" and thus failing to appeal
A social security claimant suffering from mental illness may in fact raise a colorable due process claim when he asserts that his mental illness prevented him from proceeding from one administrative level to another in a timely fashion. Canales v. Sullivan, 936 F.2d 755, 758 (2d Cir. 1991) (citing Elchediak v. Heckler, 750 F.2d 892, 894 (11th Cir. 1985)). However, "a claimant's argument that []he was so impaired as to be unable to pursue administrative remedies requires more than a `generalized allegation' of confusion; it requires a `particularized allegation of mental impairment plausibly of sufficient severity to impair comprehension.'" Byam, 336 F.3d at 182 (quoting Stieberger, 134 F.3d at 40-41). The Second Circuit explained: "A claim of constitutionally defective notice, even in the context of a claim for disability benefits based on mental illness, cannot invoke federal court jurisdiction merely upon a generalized allegation, long after the fact, that the claimant was too confused to understand available administrative remedies." Stieberger, 134 F.3d at 41. In Steiberger, the Second Circuit found that the heightened standard was met, where the plaintiff alleged that she had a mental illness for decades, requiring hospitalization for 11 days for depression with suicidal ideation; that she had "continuous treatment [since 1967] for depression, neurosis, schizophrenia, and anxiety"; and that she had a 1974 diagnosis of "Schizophrenia schizo-affective, depressed type." Id. (internal quotation marks omitted). And in Byam, the Second Circuit found that evidence of the claimant's "long history of depression, suicidal ideation with specific suicide attempts, and numerous evaluations around the dates of her SSI applications documenting specific mental disorders and cognitive, social, and emotional impairments" was "sufficiently particularized" to meet Stieberger's threshold allegation requirement. Byam, 336 F.3d at 183.
*
(Doc. 7-6 at 4.)
Johnson has failed to sufficiently allege that his medical/mental impairments prevented him from pursuing an appeal of the ALJ's May 2012 decision.
Johnson initially advises in his Opposition that he "is not alleging constructive reopening." (Doc. 9 at 2.) Later in the same document, however, he instructs that the Court may review "decisions that the Commissioner constructively reopens so long as it otherwise has jurisdiction," and states (referring to the December 2016 ALJ decision): "the ALJ clearly reopened the [Appeals Council's June 2015] good-cause determination and significantly altered the [Appeals Council's] previous findings by extending them to the allegation of a misleading notice." (Id. at 5.) To the extent that Johnson seeks remand based on a constructive reopening of the initial claim in either the June 2015 Appeals Council order or the December 2016 ALJ decision, the claim fails.
The Appeals Council plainly declined to reopen the January 2011 claim in its June 2015 Order, finding that "there is no good cause to extend the time for filing," and thus "dismiss[ing] [Johnson's] request for review." (Doc. 7-6 at 4.) That Order does not constitute an "initial determination," and thus is not subject to judicial review. The regulations specifically provide that "[t]he dismissal of a request for Appeals Council review is binding and not subject to further review." 20 C.F.R. § 404.972; see Dietsch, 700 F.2d at 867 ("The Appeals Council may . . . extend the filing time on a showing of good cause, 20 C.F.R. § 404.968(b), but a refusal to do so, like a dismissal of an untimely request, is not subject to judicial review.") (citing Watters v. Harris, 656 F.2d 234, 239-40 (7th Cir. 1980); Sheehan v. Secretary, Health, Educ. and Welfare, 593 F.2d 323, 325 (8th Cir. 1979); Maloney v. Harris, 526 F.Supp. 621, 622 (E.D.N.Y. 1980)).
In his December 2016 decision, the ALJ also declined to reopen the claim, stating: "none of the conditions for reopening . . . is present in this case," and "the previous decision remains final and binding." (Doc. 7-8 at 6.) Both the ALJ decision and the Appeals Council order considered whether good cause existed to extend Johnson's time to appeal the May 2012 ALJ decision; and neither reconsidered the merits of that decision, i.e., whether it was supported by substantial evidence and applied the correct legal standard. (See Docs. 7-6 and 7-8.) Thus, neither decision constitutes a constructive reopening of Johnson's original claim. Moreover, the discretionary denial of Johnson's request to reopen that claim is not subject to judicial review absent a colorable constitutional claim, which does not exist here as discussed above. See Califano, 430 U.S. 99 at 108 ("allow[ing] a claimant judicial review simply by filing and being denied a petition to reopen his claim would frustrate the congressional purpose . . . to impose a 60-day limitation upon judicial review of the [Commissioner's] final decision on the initial claim for benefits. Congress' determination so to limit judicial review to the original decision denying benefits is a policy choice obviously designed to forestall repetitive or belated litigation of stale eligibility claims") (citation omitted). In the absence of either constructive reopening or a constitutional claim, the Court lacks jurisdiction to review the Commissioner's decision not to reopen Johnson's claim. Byam, 336 F.3d at 180.
*
The Commissioner's decision to preclude consideration of Johnson's pending claim on the basis of res judicata is not judicially reviewable. When a social security claimant has received a previous determination or decision under the Social Security Act and that determination or decision has become final by either administrative or judicial action, the ALJ may "dismiss a hearing request entirely or . . . refuse to consider any one or more of the issues because [the doctrine of res judicata applies]." 20 C.F.R. § 404.957(c)(1). Such a denial "does not represent a final decision upon which administrative or judicial review may be requested." Bessette v. Comm'r of Soc. Sec., No. 09-CV-735 TJM/DRH, 2010 WL 5677184, at *4 (N.D.N.Y. Dec. 14, 2010) (citing Hensley v. Califano, 601 F.2d 216 (5th Cir. 1979) (holding that attempted appeals regarding denials to reopen and decisions based on res judicata are "not reviewable")); see also Byam, 336 F.3d at 180-82; Yeazel, 148 F.3d at 911 ("courts generally lack jurisdiction to review denials of benefits based on res judicata, because such denials are entered without a hearing"); Stauffer v. Califano, 693 F.2d 306, 307 (3d Cir. 1982) ("the courts of appeals of several circuits have held that dismissals of `new' claims that effectively repeat previously denied claims and which are therefore held by the [Commissioner] to be res judicata are not reviewable"); Ellis v. Schweiker, 662 F.2d 419, 419 (5th Cir. 1981) (court lacked jurisdiction where the "[Commissioner] denied benefits on grounds of res judicata and simultaneously refused to reopen an earlier claim"); Shrader v. Harris, 631 F.2d 297, 300 (4th Cir. 1980) (underlying rationale preventing court review of Commissioner's decision not to reopen applies equally to Commissioner's dismissal of claim based on res judicata).
For these reasons, the Court holds that there is no "final decision" of the Commissioner and thus the Court is without jurisdiction over Johnson's claim. Although it is possible for a defective or misleading notice of disability decision to give rise to a colorable constitutional due process claim, the Commissioner's May 2012 Notice of Decision was not defective or misleading: it properly advised Johnson of both the ALJ's decision and Johnson's appeal rights. Moreover, Johnson has not pled a mental impairment sufficient to constitute good cause for his failure to timely appeal the ALJ's May 2012 decision.
Therefore, the Court GRANTS the Commissioner's Motion to Dismiss (Doc. 7), DENIES Johnson's Motion to Remand (Doc. 9), and DISMISSES Johnson's Complaint (Doc. 1) for lack of subject-matter jurisdiction.
The Clerk shall enter judgment on behalf of the Commissioner.
Slip Copy, 2017 WL 4857562
Footnotes
Kenneth R. Hiller, Law Offices of Kenneth Hiller, Amherst, NY, for Plaintiff.
Elizabeth Rothstein, Sandra M. Grossfeld, Social Security Administration Office of General Counsel, New York, NY, for Defendant.
Christina Reiss, District Judge
*
Plaintiff is represented by Kenneth R. Hiller, Esq. The Commissioner is represented by Special Assistant United States Attorney Sandra M. Grossfeld.
On February 21, 2013, Plaintiff filed an application for DIB benefits, alleging a disability onset date of January 4, 2013. The Commissioner denied her application on June 28, 2013. Thereafter, Plaintiff filed a written request for a hearing before an ALJ on August 30, 2013. On April 2, 2015, Plaintiff testified at a hearing before ALJ Stephen Cordovani, who, on June 8, 2015, issued a decision finding Plaintiff was not disabled. The ALJ's Notice of Decision indicated that Plaintiff "must file [her] written appeal within 60 days of the date" she received the Notice. (Doc. 12-2 at 1) (emphasis omitted).
Over five months later, on November 17, 2015, Plaintiff's appointed representative, Kelly Laga, Esq., filed a letter with the Appeals Council requesting review of ALJ Cordovani's decision and an extension of time to submit arguments or additional evidence in support of Plaintiff's request for review. The letter asserted that the request was timely because counsel's office "experienced technical issues stemming from a server update that caused the statute tasks for this claim to be erased." (Doc. 16-3 at 1.) "Due to this technical error[,]" Plaintiff's representative was "unaware of the missed deadline until [November 17, 2015]." Id. The letter further stated that Plaintiff was "unaware of [her representative's] technical difficulties." Id.
On January 12, 2016, the Appeals Council replied with a notice stating that it had "granted [Plaintiff's] request for more time before [it] act[ed] on [her] case." (Doc. 12-4 at 1.) The notice informed Plaintiff that she may send "more evidence or a statement about the facts and the law in this case[]" and that additional "evidence must be new and material to the issues considered in the hearing decision dated June 8, 2015." Id. (emphasis in original). The Appeals Council notified Plaintiff that it would not act for twenty-five days and that after this time period expired it would "not allow more time to send information except for very good reasons." Id. The notice further stated that if the Appeals Council did "not hear from [Plaintiff] within 25 days, [it] will assume that [she] [does] not want to send . . . more information[ ]" and that it would "proceed with [its] action based on the record [it] [had]." Id. at 2. Upon receiving this notice, Plaintiff's representatives did not submit additional information to the Appeals Council.
*
On March 27, 2017, Administrative Appeals Judge James Walsh from the Appeals Council issued an Order dismissing Plaintiff's request for review. The Order noted that Plaintiff's "representative alleged that their office experienced technical issues from a server update that caused the statute tasks for the claim to be erased[,]" but found that "no proof was submitted to support this allegation, even after the Appeals Council sent a request for good cause and any evidence that supports the explanation" on February 1, 2017. (Doc. 12-6 at 3.) As a result, the Appeals Council held that "there is no good cause to extend the time for filing" and dismissed Plaintiff's request for review. Id. The Order stated that ALJ Cordovani's decision "stands as the final decision of the Commissioner." Id. On May 5, 2017, Plaintiff filed a Complaint with the court.
"[F]ederal courts are courts of limited jurisdiction and, as such, lack the power to disregard such limits as have been imposed by the Constitution or Congress." Purdue Pharma L.P. v. Kentucky, 704 F.3d 208, 213 (2d Cir. —) (internal quotation marks omitted). "If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action." Fed. R. Civ. P. 12(h)(3). In considering a motion to dismiss for lack of subject-matter jurisdiction, "the court must take all facts alleged in the complaint as true and draw all reasonable inferences in favor of plaintiff." Nat. Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006) (internal quotation marks omitted). The plaintiff, however, "has the burden of proving by a preponderance of the evidence that [subject-matter jurisdiction] exists." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000).
The Commissioner argues that the court does not have subject-matter jurisdiction because Plaintiff failed to exhaust her administrative appeals remedies before filing her Complaint. In response, Plaintiff contends that the Appeals Council should be bound by its January 12, 2016 notice, which she submits "would lead the reader to conclude that . . . [the] request to accept her late-filed [r]equest for [r]eview" had been granted. (Doc. 16 at 4.) She further argues that the court has jurisdiction to review the Appeals Council's finding that she did not establish good cause for her late Appeals Council filing.
When a claimant for DIB benefits appeals to a federal court, 42 U.S.C. § 405(g) and (h) provide the "exclusive source of federal court jurisdiction[.]" Jackson v. Astrue, 506 F.3d 1349, 1353 (11th Cir. 2007); see also Johnson v. Comm'r of Soc. Sec., 2017 WL 4857562, at *2 (D. Vt. Oct. 25, 2017) (stating that § 405(g) "provides the exclusive means by which the federal courts may review a decision of the Commissioner.") (internal quotation marks omitted). The statute provides that "[n]o findings of fact or decision of the Commissioner of Social Security shall be reviewed by any person, tribunal, or governmental agency except as herein provided." 42 U.S.C. § 405(h). Section § 405(g) states, in relevant part, that "[a]ny individual, after any final decision of the Commissioner of Social Security made after a hearing to which he was a party, . . . may obtain a review of such decision by a civil action[.]" 42 U.S.C. § 405(g). "This provision clearly limits judicial review to a particular type of agency action, a `final decision of the [Commissioner] made after a hearing.'" Califano v. Sanders, 430 U.S. 99, 108 (1977); see also Jones v. Astrue, 526 F.Supp.2d 455, 459 (S.D.N.Y. 2007) ("The Second Circuit has interpreted § 405(g) to require that administrative procedures generally be exhausted before judicial review is possible.") (citing Dietsch v. Schweiker, 700 F.2d 865, 867 (2d Cir. 1983)). The requirement of a "final decision" has two components: (1) a "non-waivable requirement that a claim for benefits has been presented to the Secretary," and (2) a "`waivable' requirement that the administrative remedies prescribed by the Secretary have been exhausted." City of New York v. Heckler, 742 F.2d 729, 734 (2d Cir. 1984) (internal quotation marks omitted).
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If the request for review is untimely, "[t]he Appeals Council may dismiss [the request], . . . and such a dismissal is not reviewable by the district court because it is not a `final decision' within the meaning of § 405(g)." Dietsch, 700 F.2d at 867; see also Mendez v. Chater, 1997 WL 278056, at *3 (S.D.N.Y. May 22, 1997) ("If this were not-so, claimants could side-step administrative filing requirements and still appeal adverse rulings to the district court[.]").
In this case, Plaintiff did not file a request for review within sixty days of receiving notice of ALJ Cordovani's decision issued on June 8, 2015. Nonetheless, Plaintiff argues that the Appeals Council should be bound by its January 12, 2016 notice responding to Plaintiff's belated request for review and extension of time to submit additional evidence and legal arguments. In its January 12, 2016 notice, the Appeals Council informed Plaintiff that it had "granted [her] request for more time" before acting on her case and invited her to submit evidence or legal argument within twenty-five days as long as "[a]ny more evidence [submitted] [is] . . . new and material to the issues considered in the hearing decision dated June 8, 2015." (Doc. 12-4 at 1.) Under Plaintiff's interpretation, this notice granted her belated request for review and indicated that the Appeals Council would proceed to decide the merits of her case.
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Because the Appeals Council's dismissal is not a "final decision" within the meaning of § 405(g), it "is not reviewable by the district court[.]" Dietsch, 700 F.2d 867. The court therefore must dismiss Plaintiff's Complaint for lack of subject-matter jurisdiction. See Abren, 2011 WL 3420609, at *2 (granting the Commissioner's motion to dismiss because the plaintiff did not "exhaust her administrative remedies[ ]" when "her request for review was dismissed for untimeliness."). The only means of avoiding this outcome requires Plaintiff to demonstrate that an exception to the "final decision" requirement applies.
In the absence of a "final decision," a federal court may nevertheless maintain subject-matter jurisdiction when there is a "colorable constitutional claim." See Califano, 430 U.S. at 109 ("Constitutional questions obviously are unsuited to resolution in administrative hearing procedures and, therefore, access to the courts is essential to the decision of such questions."); see also Dietsch, 700 F.2d at 867-68 (noting that "[i]n certain limited circumstances . . . federal courts have taken jurisdiction of social security cases where the exhaustion requirement has not been met[,]" including "a plaintiff's constitutional challenge to a denial of a pretermination hearing[.]"). While Plaintiff claims that her Due Process rights were violated by the allegedly ambiguous notices sent from the Appeals Council, the record demonstrates that the Appeals Council performed its duty to review Plaintiff's request. To the extent the Appeals Council's correspondence conflicted or was ambiguous, the February 2017 notice clarified that Plaintiff had thirty days to provide a statement or evidence to support her request for review. Despite this notice, Plaintiff did not submit additional information. Accordingly, the court finds that Plaintiff has not presented a "colorable constitutional claim." Johnson, 2017 WL 4857562, at *3 (internal quotation marks omitted) (citing Califano, 430 U.S. at 99, 109).
For similar reasons, mandamus jurisdiction does not provide a basis for this court to review the Appeals Council's finding. 28 U.S.C. § 1361 "authorizes an action in the nature of mandamus[ ] [and] provides jurisdiction to review otherwise unreviewable procedural issues not related to the merits of a claim for benefits." Dietsch, 700 F.2d at 868. "Mandamus jurisdiction will not apply unless `(1) the plaintiff[ ] [has] a right to have the act performed, (2) the defendant is under a clear nondiscretionary duty to perform the act requested, and (3) plaintiff has exhausted all other avenues of relief.'" Jones, 526 F. Supp. 2d at 459 (quoting City of New York v. Heckler, 742 F.2d 729, 739 (2d Cir. 1984)).
For the foregoing reasons, the court GRANTS the Commissioner's motion to dismiss (Doc. 12) and DISMISSES Plaintiff's Complaint.
SO ORDERED.
Slip Copy, 2018 WL 1835930
claimant failed to exhaust administrative remedies;
excusing claimant's failure to exhaust administrative remedies was not warranted; and
claimant was not entitled to mandamus relief.
Affirmed.
Mario Escalera, Brooklyn, NY, pro se, Appellant.
Varuni Nelson, Kathleen A. Mahoney, and Arthur Swerdloff, Assistant United States Attorneys, on behalf of Loretta E. Lynch, United States Attorney, Eastern District of New York, for Appellee.
PRESENT: ROSEMARY S. POOLER, B.D. PARKER and RAYMOND J. LOHIER, Jr., Circuit Judges.
In reviewing a district court's dismissal of an action for lack of subject matter jurisdiction pursuant to Rule 12(b) (1), we review factual findings for clear error and legal conclusions de novo. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir.2000). Likewise, we review a dismissal based on failure to exhaust administrative remedies de novo. See Nichols v. Prudential Ins. Co. of Am., 406 F.3d 98, 105 (2d Cir.2005) (collecting cases). Pursuant to 42 U.S.C. § 405(g), an individual must obtain a "final decision of the Commissioner of Social Security" (the "Commissioner") before a district court can review a Social Security benefits determination. The requirement of a "final decision" has two components: (1) a jurisdictional, non-waivable requirement that a claim for benefits has been presented to the agency, and (2) a waivable requirement that the administrative remedies prescribed by the Commissioner have been exhausted.
The Social Security Act does not define the term "final decision," but it empowers the Commissioner to set out the procedures for obtaining a final decision. See 42 U.S.C. § 405(a); Weinberger v. Salfi, 422 U.S. 749, 766, 95 S.Ct. 2457, 45 L.Ed.2d 522 (1975). In turn, the Commissioner has devised a four-step process by which a claimant must exhaust administrative remedies before proceeding to federal court. First, a claimant files an application for benefits and receives an initial determination. 20 C.F.R. § 404.902. Second, if a claimant is dissatisfied with the initial determination, he may seek reconsideration by filing a written request within 60 days. 20 C.F.R. §§ 404.907, 404.909(a)(1). The reconsideration determination is binding unless a claimant requests a hearing before an administrative law judge ("ALJ") within 60 days of receiving notice of the reconsideration determination. 20 C.F.R. §§ 404.921(a), 404.933(b)(1). If the claimant is dissatisfied with the ALJ's hearing decision, he may request review by the Appeals Council within 60 days of receiving notice of the hearing decision. 20 C.F.R. §§ 404.967, 404.968(a)(1). A claimant may seek an extension of time of any of these deadlines by showing good cause. See 20 C.F.R. §§ 404.909(b), 404.933(c), 404.968(b). The Appeals Council's decision is considered final, and a claimant may seek judicial review of that decision in district court. See Califano v. Sanders, 430 U.S. 99, 101-02, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977); 20 C.F.R. § 404,981.
"Ordinarily, the [Commissioner] has discretion to decide when to waive the exhaustion requirement. But . . . `cases may arise where a claimant's interest in having a particular issue resolved promptly is so great that deference to the agency's judgment is inappropriate.'" Bowen, 476 U.S. at 483, 106 S.Ct. 2022 (quoting Eldridge, 424 U.S. at 330, 96 S.Ct. 893); see also Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 93 (2d Cir.1998) ("In general, exhaustion of administrative remedies is the rule, and waiver the exception[.]"). "[A] plaintiff's failure to exhaust administrative remedies can be excused if (1) the claim is collateral to a demand for benefits, (2) exhaustion would be futile, or (3) requiring exhaustion would result in irreparable harm." Skubel v. Fuoroli, 113 F.3d 330, 334 (2d Cir.1997). Exhaustion issues are resolved by "balancing the competing considerations to arrive at a just result." State of N.Y. v. Sullivan, 906 F.2d 910, 918 (2d Cir.1990).
Escalera's claim is not collateral to his demand for benefits, as it involves a demand for benefits and investigation into his wage earnings. Although he contends that the agency has engaged in a faulty investigation, he has not shown that exhaustion would be futile. A final agency *
Insofar as Escalera sought mandamus relief in the court based on the agency's decision not to credit him for several years he had allegedly worked and its alleged failure to search for records, he did not prove that "no other adequate remedy" (i.e., completing the administrative process) was available. Benzman v. Whitman, 523 F.3d 119, 132-33 (2d Cir.2008). Moreover, insofar as he seeks mandamus relief on appeal based on the agency's alleged failure to respond to his requests following the district court's dismissal, or claims for the first time on appeal that the Commissioner's actions constitute a violation of due process, we decline to consider such issues. See Singleton v. Wulff, 428 U.S. 106, 120, 96 S.Ct. 2868, 49 L.Ed.2d 826 (1976).
For the foregoing reasons, the judgment of the district court is hereby
457 Fed.Appx. 4, 2011 WL 5865408
SCHNEIDER & PALCSIK, OF COUNSEL: MARK A. SCHNEIDER, ESQ, 57 Court Street, Plattsburgh, NY 12901, Counsel for Plaintiff.
U.S. SOCIAL SECURITY ADMIN . OF COUNSEL: PADMA GHATAGE, ESQ., OFFICE OF REG'L GEN. COUNSEL — REGION II, 26 Federal Plaza, Room 3904, New York, NY 10278, Counsel for Defendant.
Hon. Glen T. Suddaby, Chief U.S. District Judge
Plaintiff was born in 1961, making him 49 years old at the alleged onset date and 51 years old at the date last insured. Plaintiff reported attending high school until the 9th grade. Plaintiff has past work as a truck driver. Generally, Plaintiff alleges disability due to coronary artery disease, a blocked esophagus, hypertension, depression, hyperlipidemia, mental health problems, osteoarthritis, attention deficit hyperactivity disorder, missing ball joint in the right ankle, gastroesophageal reflux disease, and alcoholism.
Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on June 12, 2013;, alleging disability beginning April 26, 2011. Plaintiff's applications were initially denied on September 26, 2013, after which he timely requested a hearing before an Administrative Law Judge ("ALJ"). Plaintiff appeared at a video hearing before ALJ Arthur Patane on November 14, 2014. A supplemental video hearing was held on July 31, 2015. On October 8, 2015, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. (T. 13-34.)
Generally, in his decision, the ALJ made the following seven findings of fact and conclusions of law. (T. 15-33.) First, the ALJ found that Plaintiff was insured for disability benefits under Title II until June 30, 2012. (T. 15.) Second, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. (Id.) Third, the ALJ found that Plaintiff's affective disorder, anxiety disorder, alcohol abuse disorder, history of ischemic heart disease, high blood pressure, right foot cavus deformity and peroneal tendinitis status post-Defendant's degenerative disc disease in the lower lumbar spine, and osteoarthritis are severe impairments, while high cholesterol and esophageal impairments are not severe. (T. 15-16.) Fourth, the ALJ found that Plaintiff's severe impairments do not meet or medically equal one of the listed impairments in 20 C.F.R. § 404, Subpart P, App. 1 (the "Listings"). (T. 16-19.) More specifically, the ALJ considered Listing 1.00 (musculoskeletal system), 1.02 (major dysfunction of a joint), 1.04 (disorders of the spine), 4.00 (cardiovascular system), 5.00 (digestive system), 12.04 (affective disorders), and 12.06 (anxiety related disorders). (Id.) Fifth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform
(T. 19.) Six, the ALJ found that the above RFC prevents Plaintiff from performing his past relevant work. (T. 32.) Seventh, the ALJ found that Plaintiff is not disabled at Step Five pursuant to the Medical-Vocational Guidelines because the additional limitations in the RFC have little or no effect on the occupational base of light work. (T. 33.)
Generally, Plaintiff makes five arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ failed to develop the record by not obtaining records from prior to the application date and by not asking Plaintiff's representative at the hearing to obtain material evidence that was missing from the record. (Dkt. No. 14, at 20-22 [Pl. Mem. of Law].) In his reply brief to Defendant's memorandum, Plaintiff elaborates that this duty to develop arose because there were "obvious gaps" in the record and the ALJ therefore did not have a complete medical history. (Dkt. No. 22, at 4 [Pl. Reply Br.].)
Second, Plaintiff argues that the ALJ violated the treating physician rule and erred in affording greater weight to the reports from consultative sources. (Dkt. No. 14, at 22-27 [Pl. Mem. of Law].) Specifically, Plaintiff argues that the ALJ erred in affording more weight to the opinions of consultative physicians Dr. Wassaf, Dr. Hartman, and Dr. Gussoff than to the opinions from the treating orthopedic surgeon, the treating cardiologist, the primary care providers, the treating psychiatrists, and a treating therapist. (Dkt. No. 14, at 26 [Pl. Mem. of Law].)
Third, Plaintiff argues that he should have been found disabled due to his combination of impairments. (Dkt. No. 14, at 27-28 [Pl. Mem. of Law].) Plaintiff argues that the ALJ did not meet his burden at Step Five of showing that Plaintiff had the ability to perform a full range of light or sedentary work. (Dkt. No. 14, at 28 [Pl. Mem. of Law].) Plaintiff also argues that the ALJ failed to consider his learning disability and borderline intellectual functioning in combination with his other impairments hen determining the RFC finding. (Dkt. No. 14, at 31-32 [Pl. Mem. of Law].) Plaintiff additionally argues that the ALJ erred in finding that heart disease and Barrett's esophagus were non-severe impairments. (Dkt. No. 14, at 32 [Pl. Mem. of Law].)
Fourth, Plaintiff argues that the ALJ failed to provide clear and convincing rationale for discrediting Plaintiff's allegations of limitation. (Dkt. No. 14, at 32-35 [Pl. Mem. of Law].) Plaintiff argues that the ALJ failed to point to any inconsistencies to support his credibility finding, and that the factors such as Plaintiff's treatment history and work history should have enhanced his credibility. (Dkt. No. 14, at 34-35 [Pl. Mem. of Law].)
Fifth, and finally, Plaintiff argues that the ALJ erred in failing to consult a vocational expert when making the determination at Step Five. (Dkt. No. 14, at 35 [Pl. Mem. of Law].)
Second, Defendant argues the ALJ properly weighed the various opinion evidence related to Plaintiff's physical and mental functioning when formulating the RFC assessment. (Dkt. No. 18, at 18-25 [Def. Mem. of Law].)
Third, Defendant argues that the credibility finding is supported by substantial evidence, noting that the ALJ considered factors such as Plaintiff's wide range of daily activities, poor compliance with treatment, and a lack of regular treatment. (Dkt. No. 18, at 25-27 [Def. Mem. of Law].)
Fourth, Defendant argues that the ALJ properly considered Plaintiff's impairments in combination, including those he found were not severe, particularly because he considered all of the medical and non-medical evidence in the record when making his findings. (Dkt. No. 18, at 27-28 [Def. Mem. of Law].)
Fifth, and finally, Defendant argues that the ALJ was not required to seek testimony from a vocational expert because there was no evidence that Plaintiff's ability to work at the light exertional level was significantly diminished by the presence of non-exertional impairments. (Dkt. No. 18, at 28-29 [Def. Mem. of Law].)
A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. 42 U.S.C. § 405(g); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if the correct legal standards were not applied, or it was not supported by substantial evidence. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); accord Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983), Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
"To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both 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). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); accord McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014). "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thompson, 540 U.S. 20, 24 (2003).
After careful consideration, the Court answers this question in the negative, for the reasons outlined below.
As noted above in the section on the procedural history of this case, Plaintiff filed applications seeking both Disability Insurance Benefits under Title II and Supplemental Security Income under Title XVI on June 12, 2013, and the ALJ's decision on October 8, 2015, addressed the appeal of the Agency's decisions on both of these applications. (T. 13, 33.) Plaintiff's representative then submitted a request for review of the ALJ's decision to the Appeals Council on October 20, 2015. (T. 307.) This request for review makes explicitly clear that Plaintiff was appealing only the denial of Title II benefits, not the denial of Title XVI benefits. First, the subject header of this letter listed the purpose as "Request for Review of Denial of Title II Benefits." (T. 307.) Second, in the body of the letter, Plaintiff's representative wrote the following: "
The regulations promulgated by the Social Security Administration set forth a four-step process for exhausting administrative remedies. See Escalera v. Comm'r of Soc. Sec., 457 Fed.Appx. 4, 6 (2d Cir. 2011). First, the claimant must file an application for benefits and receive an initial Agency determination. See 20 C.F.R. § 404.902. Second, if the claimant disagrees with the initial determination, he may seek reconsideration in states where reconsideration remains a stage of the process. See 20 C.F.R. §§ 404.907, 404.909(a)(1). Third, if the claimant disagrees with the reconsideration determination, or resides in a state where the reconsideration stage has been eliminated, he may then request a hearing with an ALJ. See 20 C.F.R. §§ 404.921(a), 404.933(b)(1). If the claimant is dissatisfied with the ALJ's decision, he may request review by the Appeals Council. See 20 C.F.R. §§ 404.967, 404.968(a)(1).
The Supreme Court has made clear statements that a Plaintiff seeking judicial review by a federal court of a decision related to Social Security disability benefits must first exhaust the administrative remedies provided by the Social Security Administration in order to give rise to jurisdiction. In Sims v. Apfel, 530 U.S. 103 (2000), the Supreme Court stated the law related to "final decisions" and judicial review as follows:
Sims, 530 U.S. at 106-07 (emphasis added).
However, while "`exhaustion is the rule, waiver the exception,'" there are some instances where failure to exhaust administrative remedies may be excused. Pavano v. Shalala, 95 F.3d 147, 150 (2d Cir. 1996) (quoting Abbey, 978 F.2d at 44). The Supreme Court has cited the following three factors to excuse failure to exhaust administrative remedies: (1) where the claim is collateral to a demand for benefits; (2) where exhaustion would be futile; and (3) where the plaintiff would suffer irreparable harm if required to exhaust the administrative remedies. Pavano, 95 F.3d at 150 (citing Abbey, 978 F.2d at 44; Bowen v. City of New York, 476 U.S. at 483; Mathews, 424 U.S. at 330-32).
First, the issues raised in this action related to Plaintiff's Title XVI claim are not collateral to his demand for benefits because his entire claim is itself a demand for benefits. As in Pavano, Plaintiff is "challenging the lawfulness of the denial, and not seeking relief other than that sought in the administrative proceeding." Pavano, 95 F.3d at 150. The Second Circuit has noted that "`policies favoring exhaustion are most strongly implicated by actions [] challenging the application of concededly valid regulations.'" Id. (quoting Abbey, 978 F.2d at 45). As Plaintiff's complaint shows he filed the current action before this Court alleging only that the final decision of the Commissioner denying benefits as to both Title II and Title XVI was "wrong as a matter of law," the issues in this action are not collateral to his demand for benefits, a factor which weighs in favor of application of the exhaustion requirement.
Second, there is no indication that exhaustion would be futile. "`To show futility, a plaintiff must demonstrate that adequate remedies are not reasonably available or that the wrongs alleged could not or would not have been corrected by resort to the administrative hearing process.'" Estate of D.B. by Briggs v. Thousand Islands Cent. Sch. Dist., 169 F.Supp.3d 320, 329 (N.D.N.Y. 2016) (abrogated on other grounds) (quoting Coleman v. Newburgh Enlarged City Sch. Dist. 503 F.3d 198, 205 (2d Cir. 2007)). Although it is not clear from the Appeals Council's denial of review whether they constrained their assessment to the period of the Title II application or considered the entire period covered by the ALJ's decision, there is a significant difference in the periods covered by Plaintiff's separate applications for benefits. The relevant period for the Title II claim spans between the April 26, 2011, alleged onset date to the date last insured of June 30, 2012, while the relevant period of consideration for the Title XVI application would extend years later to the date of the ALJ's decision, October 8, 2015. (T. 13, 15, 34.) Since the Title XVI application requires consideration of a large period of time that the Title II application does not, and because Plaintiff only appealed the denial of his Title II claim to the Appeals Council, this Court cannot say that requiring exhaustion as to the Title XVI claim would be futile given the large volume of medical and other evidence in the record relevant to the Title XVI claim that would not necessarily be relevant to the Title II claim. All of this evidence could reasonably make a difference in the Appeals Council's decision to deny review were they to have the chance to consider an appeal of Plaintiff's Title XVI claim. Even if an appeal of that claim had resulted in the same outcome (denial of review), that does not necessarily mean that requiring exhaustion is futile because there is sufficient medical evidence that would not have been applicable to the Title II claim which could suggest that the Appeals Council's analysis could have been different if it had been considering the Title XVI claim. Additionally, there is no evidence that Plaintiff's alleged claims could not have been addressed or corrected by appealing to the Appeals Council. There is also no evidence that administrative remedy was not available, and Plaintiff in fact did seek the available remedy related to his Title II application. Plaintiff, through his representative, was clear about the intention to file a new Title XVI application with the Social Security Administration rather than pursue appeal of the existing one to the Appeals Council, and the fact that he did seek appeal of his Title II claim shows he was well aware that appeal was available to him on the Title XVI application had he wanted to pursue it. There is simply nothing to suggest that requiring appeal of the Title XVI application to the Appeals Council would be futile.
Based on the above, this Court concludes that it lacks jurisdiction to review any issues related to Plaintiff's Title XVI claim based on Plaintiff's failure to exhaust his administrative remedies related to that claim. Consequently, this Court will constrain its review to only issues related to Plaintiff's Title II application. Plaintiff alleged disability beginning April 26, 2011, and was insured for disability benefits under Title II until June 30, 2012. (T. 13, 15.) Because a claimant seeking Title II benefits must show disability prior to the date last insured in order to be entitled to benefits,
After careful consideration, the Court answers this question in the negative for the reasons stated in Defendant's memorandum of law and sur-reply. (Dkt. No. 18, at 16-17 [Def. Mem. of Law], Dkt. No. 25, at 1-4 [Def. Sur-Reply].) To those reasons, the Court adds the following analysis.
Although the claimant has the general burden of proving that he or she has a disability within the meaning of the Social Security Act, "`the ALJ generally has an affirmative obligation to develop the administrative record'" due to the non-adversarial nature of a hearing on disability benefits. See Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999); citing Draegert v. Barnhart, 311 F.3d 468 (2d Cir. 2002), Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)). "`It is the ALJ's duty to investigate and develop the facts and develop the arguments both for and against the granting of benefits.'" Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 508-09 (2d Cir. 2009)). "Under the regulations, an 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.'" Janes v. Colvin, No. 6:15-CV-1518, 2017 WL 972110, at *3 (N.D.N.Y. Mar. 10, 2017) (quoting Hart v. Comm'r, No. 5:07-CV-1270, 2010 WL 2817479, at *5 (N.D.N.Y. July 16, 2010)). Generally, additional evidence or clarification is sought when there is a conflict or ambiguity that must be resolved, when the medical reports lack necessary information, or when the reports are not based on medically acceptable clinical and laboratory diagnostic techniques." Janes, 2017 WL 972110, at *4 (citing 20 C.F.R. § 404.1520b; Rosa v. Callahan, 168 F.3d 72, 80 (2d Cir. 1999); Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). However, "[w]here there are no obvious gaps in the administrative record, and where the ALJ already possesses a `complete medical history,' the ALJ is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa, 168 F.3d at 79 n.5 (citing Perez v. Chater, 77 F.3d 41, 48 (2d Cir. 1996)).
Based on Plaintiff's elaboration in his reply brief on the failure to develop argument (whether proper or not), it appears that Plaintiff's only concrete identification of a way in which the ALJ failed to fully develop the record prior to the date last insured was in failing to obtain medical records from 1982 related to Plaintiff's remote right foot surgery. However, Plaintiff's arguments do not show how this omission in any way affected the ALJ's ability to render a decision on his Title II claim. Plaintiff's assertions that the ALJ "assumed that [Plaintiff] did not have [ankle] surgery" are clearly contradicted by the ALJ's decision. (Dkt. No. 14, at 22 [Pl. Mem. of Law].) The ALJ noted that "[a]lthough no significant clinical findings were documented upon examination consistent with the claimant's testimony regarding prior ankle surgeries, an X-ray of the right ankle did show evidence that an open reduction and internal fixation procedure has been done to correct a distal fracture followed by removal of the surgical plate, but did not demonstrate any bony abnormalities. [] The X-ray, of course, does not establish when that surgery took place." (T. 22.) These statements and the rest of the ALJ's discussion of the related evidence show that the ALJ did not refuse to believe that a remote ankle surgery had occurred, but rather that the evidence since the alleged onset date showed that Plaintiff's remote ankle injury and surgery did not show any functional effects or symptoms related to that injury and surgery. Consequently, Plaintiff's assertions that the ALJ failed to consider Plaintiff's prior ankle surgery as a result of his failure to obtain the records related to that surgery are without merit.
Nor has Plaintiff shown how evidence from 1982 would be material in the instant case where the alleged onset date is April 26, 2011, nearly 30 years after when Plaintiff alleges he had his ankle surgery. The earnings records indicate that Plaintiff worked in every year from 1984 to 2008, with the majority of those years showing earnings at or above the level of substantial gainful activity. (T. 225-26.) Given that these records serve as evidence that Plaintiff remained able to perform medium exertional level truck driving jobs requiring use of his right foot for many years after his remote right ankle surgery, there is nothing to suggest that records related to this surgery would have in anyway influenced the ALJ's decision. The ALJ acknowledged that the more recent x-rays showed evidence the surgery had taken place and considered the evidence since the alleged onset date that failed to show complaints, symptoms, or functional limitations related to Plaintiff's right ankle until September 2012 when Plaintiff suffered a new injury to his right ankle. (T. 22, 359-63.) The only notation of right ankle symptoms prior to the September 2012 re-injury was a treatment note from May 2009 (two years prior to the alleged onset date) which showed Plaintiff walked with a slight limp and had only slightly decreased ankle motion secondary to an old ankle injury. (T. 583.) Consequently, substantial evidence supports the ALJ's conclusion that Plaintiff's history of remote ankle injury and surgery did not affect his functioning during the relevant period after his alleged onset date and there was no requirement for the ALJ to obtain records from the 1980s related to that impairment. (T. 22.)
Plaintiff also argues that the ALJ erred in failing to obtain treatment records from Dr. Charlson, the surgeon who Plaintiff reported performed his more recent right foot and ankle surgery in 2014. (Dkt. No. 22, at 5 [Pl. Reply Br.].) However, the Court need not address this argument because, in addition to the fact that this argument was improperly submitted to the Court for the first time in Plaintiff's reply brief, it lacks the jurisdiction to review the merits of Plaintiff's Title XVI claim as already discussed above in section III.A of this Decision and Order. In April 2015, Dr. Charlson submitted opinions restricting Plaintiff to sedentary work and indicating his ankle condition would impose life-long effects on his functioning. (T. 730, 732.) However, Dr. Charlson treated Plaintiff for an ankle injury that occurred after the June 30, 2012, date last insured. (T. 359-63.) Because the impairment that was the subject of Dr. Charlson's treatment and opinion did not exist prior to the date last insured, Dr. Charlson's treatment of such of an impairment would have no bearing on the assessment of disability within the relevant period of the Title II application. Consequently, this Court lacks the jurisdiction to review this portion of Plaintiff's argument.
For all the above reasons, and because Plaintiff has not identified a gap that existed that would prevent the ALJ from making a determination as to the Title II period, the ALJ did not fail to meet his duty to assist in developing a full record. Remand is not merited on this basis.
After careful consideration, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (Dkt. No. 18, at 18-25 [Def. Mem. of Law].) To those reasons, the Court adds the following analysis.
The Second Circuit has long recognized the `treating physician rule' set out in 20 C.F.R. § 404.1527(c). "`[T]he opinion of a claimant's treating physician as to the nature and severity of the impairment is given `controlling weight' so long as it is `well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.'" Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (quoting Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008)). However, there are situations where the treating physician's opinion is not entitled to controlling weight, in which case the ALJ must "explicitly consider, inter alia: (1) the frequency, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.'" Greek, 802 F.3d at 375 (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)). However, "[w]here an ALJ's reasoning and adherence to the Regulations is clear, she is not required to explicitly go through each and every factor of the Regulation." Blinkovitch v. Comm'r of Soc. Sec., No. 3:15-CV-1196, 2017 WL 782979, at *4 (N.D.N.Y. Jan. 23, 2017), Report and Recommendations adopted by 2017 WL 782901 (N.D.N.Y. Feb. 28, 2017) (citing Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013)). After considering these factors, "the ALJ must `comprehensively set forth [his] reasons for the weight assigned to a treating physician's opinion.'" Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129). "The failure to provide `good reasons for not crediting the opinion of a claimant's treating physician is a ground for remand.'" Greek, 802 F.3d at 375 (quoting Burgess, 537 F.3d at 129-30).
Plaintiff argues vaguely that the ALJ erred in relying on opinion evidence from examining and non-examining sources over those from various unnamed treating physicians and a therapist. (Dkt. No. 14, at 26-27 [Pl. Mem. of Law].) Plaintiff argues that "[t]he ALJ did not provide clear and convincing reasons for doing this. Dr. Wassaf is a pediatrician. Psychologist Dr. Hartman is not a psychiatrist. Dr. Gussoff did not examine [Plaintiff.] His testimony at the hearing was ambiguous at times and he often did not directly answer the question before him." (Id.) These do not provide sufficient reasons on their own to disregard any of these opinions. The fact that Dr. Wassaf is a pediatrician might merit lessening somewhat the weight his opinion is entitled to, but he is still a licensed physician with medical training who would be competent to perform a physical examination on an adult.
In terms of Dr. Gussoff's opinion, Plaintiff does not point to what portions of Dr. Gussoff's testimony are ambiguous. (Dkt. No. 14, at 26 [Pl. Mem. of Law].) Plaintiff does highlight an instance in which he believes Dr. Gussoff failed to answer a question related to whether he agreed with Dr. Charlson's conclusion that Plaintiff's right foot impairment would remain a life-long issue. (Dkt. No. 14, at 3-4 [Pl. Mem. of Law].) However, Plaintiff's interpretation is not reasonable. Dr. Gussoff answered that the post-surgical hardware would result in life-long differences unless they were removed and could result in occasional pain and compromise of functioning particularly if he engaged in a lot of stair climbing or driving, but that it would not be likely to cause much of a compromise of functioning on an ordinary day-to-day basis. (T. 50; Dkt. No. 14, at 3 [Pl. Mem. of Law].) Dr. Gussoff then noted that he accepted Dr. Charlson's opinion in good faith but reached his own conclusions based on considering the totality of the evidence. (T. 51; Dkt. No. 14, at 3-4 [Pl. Mem. of Law].) This Court does not agree with Plaintiff that Dr. Gussoff failed to answer the question that was posed to him, or that his answers to this or other questions were overly ambiguous so as to render them unreliable or suspect. Dr. Gussoff provided a clear statement of his opinion regarding Plaintiff's functional abilities, to which the ALJ afforded only some weight based on a few specific problems with Dr. Gussoff's explanations that the ALJ identified and acknowledged. (T. 26-28.) Because the ALJ's lengthy and thoughtful discussion of Dr. Gussoff's opinion and testimony shows he engaged in significant and thorough consideration of all of the factors impacting the amount of weight this opinion was entitled to, this Court does not find any legal error in the ALJ's assessment of this opinion.
It is important to reiterate that, in assessing whether the ALJ's findings are supported by substantial evidence, this Court is constrained by the fact that it only has jurisdiction to review Plaintiff's Title II claim. The medical evidence for the period between April 26, 2011, and June 30, 2012, contains little evidence of physical impairment other than a two-day hospital admission for syncope and chest pain after which Plaintiff was released with instructions to resume normal activities, an emergency room visit related to a head injury after falling from a bicycle, some instances of treatment for gastrointestinal issues that are not indicative of functional limitations, and an instance of treatment for a lumbosacral strain that showed pain with range of motion. (T. 310, 314, 338-43, 346, 350, 378-80, 469-479.) The evidence from the relevant period also contains multiple presentations to the emergency room (some resulting in multi-day hospital admissions) for depression and suicidal thoughts, but all of these reports also note that Plaintiff was drinking at those times and suggest that alcohol was a contributory factor in the acute exacerbation of his mental health symptoms. (T. 326-30, 331-35, 415-34, 446-61.) Presented with the question of whether the ALJ's findings were supported by substantial evidence as to the Title II period, this Court finds that they were, particularly based on the lack of evidence supporting the severity of symptoms and limitations opined by the treating sources that the ALJ afforded less weight.
Additionally, as previously noted, Plaintiff asserted for the first time in his reply brief that the Appeals Council erred in failing to consider a November 4, 2015, medical report from treating cardiologist Dr. Hastings. (Dkt. No. 22, at 5-8 [Pl. Reply Br.].) Setting aside Plaintiff's failure to raise this argument in his initial brief and the question of whether the treatment note even constitutes an opinion of disability from Dr. Hastings rather than a recording of Plaintiff's own reports of disability, there is no suggestion that the Appeals Council failed to consider this evidence. In the Appeals Council's denial of review, it notes that it considered Plaintiff's request for review and the additional evidence listed with its order, but "concluded that the additional evidence does not provide a basis for changing the Administrative Law Judge's decision." (T. 2.) The Appeals Council's order specifically lists Dr. Hasting's medical report in the exhibit list. (T. 4.) Therefore, Plaintiff's assertion that "the Appeals Council did not even reference it in its denial of [Plaintiff's] appeal" is clearly contradicted by the Appeals Council's order. (Dkt. No. 22, at 8 [Pl. Reply Br.].) This Court is also persuaded by Defendant's argument that a mere statement that a claimant is disabled would not be sufficient to provide a reasonable basis for changing the ALJ's decision because it is an opinion on an issue reserved to the Commissioner that is not entitled to any significant weight. See Mortise v. Astrue, 713 F.Supp.2d 111, 125 (N.D.N.Y. 2010) ("[A]n opinion concerning the ultimate issue of disability, from any source, is reserved to the commissioner."); Fuimo v. Colvin, 948 F.Supp.2d 260, 267 (N.D.N.Y. 2010) (noting that it was proper for the ALJ to give little weight to an opinion that the plaintiff was severely disabled and not competitively employable because that concerned an issue reserved to the Commissioner) (citing 20 C.F.R. § 416.927(d)(1)). Combined with the fact that the copy of Dr. Hasting's report contains no objective findings supporting disability and in fact notes that Plaintiff was doing fairly well from a cardiac standpoint, a statement that Plaintiff is disabled by itself is not persuasive evidence to override the other substantial evidence underlying the ALJ's findings. To the extent that this report could provide evidence related to Plaintiff's conditions prior to the date last insured (there was evidence that a cardiac impairment was present in 2011 and 2012), there is no suggestion that the Appeals Council failed to appropriately consider this report when deciding to deny review of Plaintiff's Title II claim.
After careful consideration, the Court answers this question in the affirmative for the reasons stated in Defendant's memorandum of law. (Dkt. No. 18, at 27-28 [Def. Mem. of Law].) To those reasons, the Court adds the following analysis.
Residual functional capacity is defined as "`what an individual can still do despite his or her limitations . . . Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and continuing basis.'" Pardee v. Astrue, 631 F.Supp.2d 200, 210 (N.D.N.Y. 2009) (quoting Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999)). "In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations which could interfere with work activities on a regular and continuing basis." Pardee, 631 F.Supp.2d at 210 (citing 20 C.F.R. § 404.1545(a)). "Ultimately, `[a]ny impairment-related limitations created by an individual's response to demands of work . . . must be reflected in the RFC assessment.'" Hendrickson v. Astrue, No. 5:11-CV-0927, 2012 WL 7784156, at
Plaintiff makes three arguments related to the ALJ's assessment of his impairments as accounted for in the RFC. First, Plaintiff argues that his foot and ankle impairment prevented him from being able to perform light work as specified in the RFC. (Dkt. No. 14, at 28-30 [Pl. Mem. of Law].) However, as already discussed above in section III.B. of this Decision and Order, the evidence from the time period relevant to the Title II claim does not show any evidence of limitations related to Plaintiff's right ankle, as his remote surgery from the 1980s did not appear to cause significant lasting symptoms and he did not reinjure his ankle until September 2012, after the date last insured. Because this Court has jurisdiction to consider only issues related to Plaintiff's Title II claim due to his failure to exhaust administrative remedies as to his Title XVI claim, it cannot conclude that the evidence from the period between April 26, 2011, and June 30, 2012, indicates any greater limitations as a result of Plaintiff's right ankle impairment than was accounted for in the RFC determination as it related to that time period. Consequently, Plaintiff's first argument must fail.
Second, Plaintiff argues that the ALJ failed to find he had greater attention and concentration difficulties and failed to consider his borderline intellectual functioning in combination with his other impairments. (Dkt. No. 14, at 31-32 [Pl. Mem. of Law].) While the evidence from prior to the alleged onset date does show the presence of mental health symptoms during emergency room and hospital admissions, these reports do not suggest the moderate to severe impairment in concentration and persistence that Plaintiff asserts. While Plaintiff was observed during a psychiatric hospital admission on November 13, 2011, to be unable to repeat digits, to have difficulty with simple calculations and serial sevens testing, and to have difficulty remembering provided words after five minutes, Plaintiff was also noted to have a high blood alcohol content ("BAC") of 0.314 at the time. (T. 334-35.) However, when assessed by Dr. Hartman in September 2013 while assumedly sober, he was observed to have only mildly impaired concentration, attention, and memory. (T. 525.) As the ALJ explicitly noted in his decision, the records of mental health treatment during the relevant period suggest that documented alcohol abuse and intoxication significantly exacerbated Plaintiff's mental health symptoms. (T. 28-29.) Contrary to Plaintiff's assertion that the ALJ was not allowed to factor in the impact of Plaintiff's alcohol abuse in the absence of finding Plaintiff was disabled with alcohol abuse as a material factor, the ALJ was entitled to consider all of the evidence before him and the relevant Agency guidance regarding the evaluation of substance abuse in conjunction with other impairments does not indicate otherwise. See SSR 13-2p;
Third, Plaintiff argues that the ALJ erred in failing to find cardiac and gastrointestinal impairments to be severe at Step Two of the sequential evaluation. (Dkt. No. 14, at 32 [Pl. Mem. of Law].) "Although the Second Circuit has held that this step is limited to `screening out de minimis claims'[], the `mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for a disease or impairment' is not, by itself, sufficient to render a condition severe." Taylor v. Astrue, 32 F.Supp.3d 253, 265 (N.D.N.Y. 2012) (quoting Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995); Colvin v. Shalala, 895 F.Supp. 50, 53 (S.D.N.Y. 1995)). Overall, the claimant retains the burden of presenting evidence to establish severity. Taylor, 32 F. Supp. 3d at 265 (citing Miller v. Comm'r of Soc. Sec., No. 7:05-CV-1371, 2008 WL 2783418, at
As an initial matter, Plaintiff's argument that the ALJ failed to find his cardiac impairments severe is baffling given that the ALJ specifically listed history of ischemic heart disease as a severe impairment and discussed the evidence related to this impairment within the decision. (T. 16, 21; Dkt. No. 14, at 32.) Regarding Plaintiff's gastrointestinal impairments, including Barrett's esophagus, Plaintiff's argument fails to show in any way how this relatively mild impairment imposed any limitations on his work-related functioning. (Dkt. No. 14, at 32 [Pl. Mem. of Law].) The ALJ discussed the evidence related to this impairment, including statements from Plaintiff's treating physician that he remained largely asymptomatic and that his medications were largely effective at controlling his symptoms related to his gastrointestinal impairments. (T. 16.) Plaintiff failed to meet his burden to show that this impairment was severe, or that the ALJ otherwise failed to consider the evidence related to this impairment when reaching his conclusions.
For all of the above reasons, the ALJ appropriately considered all of Plaintiff's impairments in combination when assessing the RFC, and remand is not warranted on this basis.
In determining whether a claimant is disabled, the ALJ must also make a determination as to the credibility of the claimant's allegations. "`An administrative law judge may properly reject claims of severe, disabling pain after weighing the objective medical evidence in the record, the claimant's demeanor, and other indicia of credibility, but must set forth his or her reasons with sufficient specificity to enable us to decide whether the determination is supported by substantial evidence.'" Schlichting v. Astrue, 11 F.Supp.3d 190, 205 (N.D.N.Y. 2012) (quoting Lewis v. Apfel, 62 F.Supp.2d 648, 651 (N.D.N.Y. 1999)). The Second Circuit recognizes that "`[i]t is the function of the [Commissioner], not [reviewing courts], to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant,'" and that "[i]f there is substantial evidence in the record to support the Commissioner's findings, `the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain.'" Schlichting, 11 F. Supp. 3d at 206 (quoting Carroll v. Sec'y of Health and Human Servs., 705 F.2d 638, 642 (2d Cir. 1983); Aponte v. Sec'y, Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)). Due to the fact that the ALJ has the benefit of directly observing a claimant's demeanor and "other of credibility," the ALJ's credibility assessment is generally entitled to deference. Weather v. Astrue, 32 F.Supp.3d 363, 381 (N.D.N.Y. 2012) (citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999)).
Plaintiff essentially argues that the ALJ failed to provide any clear reasons or explain any inconsistencies that supported his adverse credibility finding. (Dkt. No. 14, at 34-35 [Pl. Mem. of Law].) However, as Defendant notes, Plaintiff ignores the multiple reasons the ALJ provided to support his conclusion, including Plaintiff's wide range of daily activities, his poor compliance with treatment, and a lack of regular treatment. (Dkt. No. 18, at 25-27 [Def. Mem. of Law].) In addition to these reasons, the ALJ also included a lengthy and thorough discussion of the medical treatment evidence that indicated Plaintiff's allegations were inconsistent with the medical evidence. (T. 21-32.) Given the significant deference this Court is required to give to an ALJ's credibility determination, and that consideration of the evidence shows that the ALJ's provided reasons are supported by substantial evidence, this Court declines to substitute its own credibility analysis for that of the ALJ. See Weather, 32 F. Supp. 3d at 381. Additionally, while Plaintiff is correct that he had a fairly good work history, such a fact is not sufficient by itself to entitle him to a finding that he is fully credible. Rather, it is only one factor that should be considered in conjunction with all others. Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998); see also Campbell v. Astrue, 465 Fed.Appx. 4, 7 (2d Cir. 2012) (finding other credibility factors outweighed claimant's good work history). For the above reasons, the ALJ's credibility finding is supported by substantial evidence, and remand is not warranted.
Although the claimant has the general burden to prove he has a disability under the definitions of the Social Security Act, the burden shifts to the Commissioner at Step Five "`to show there is other work that [the claimant] can perform.'" McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014) (quoting Brault v. Soc. Sec. Admin., 683 F.3d 443, 445 (2d Cir. 2012)). "If a claimant has nonindicia exertional limitations that `significantly limit the range of work permitted by his exertional limitations,' the ALJ is required to consult with a vocational expert." Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986)). "However, the `mere existence of a non-exertional impairment does not automatically . . . preclude reliance on the [Medical-Vocational] guidelines.'" Zabala, 595 F.3d at 410-11 (quoting Bapp, 802 F.2d at 603). "A non-exertional impairment `significantly limits a claimant's range of work when it causes an additional loss of work capacity beyond a negligible one or, in other words, one that so narrows a claimant's possible range of work as to deprive him of a meaningful employment opportunity.'" Zabala, 595 F.3d at 410-11 (quoting Bapp, 802 F.2d at 605-06).
The ALJ found that the additional limitations in the RFC would have "little or no effect on the occupational base of unskilled light work," and consequently concluded that application of the Medical-Vocational Guidelines was appropriate to direct a finding that Plaintiff was not disabled at Step Five. (T. 33.) As already noted above, the evidence from the time period relevant to this Court's review does not reveal the presence of significant non-exertional limitations. In his brief, Plaintiff alleges only vaguely that he has "non-exertional limitations of pain, fatigue, and mental illness," but does not explain what evidence shows those alleged limitations, if in fact present, imposed significant limitations on his ability to perform the range of unskilled light work contrary to the ALJ's findings. (Dkt. No. 14, at 35 [Pl. Mem. of Law].) This Court concludes that the ALJ's Step Five finding is supported by substantial evidence without testimony from a vocational expert at least as far as the period between April 26, 2011, and June 30, 2012, is concerned. Consequently, remand is not warranted on this issue.
Slip Copy, 2017 WL 3917019.
