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McIntyre v. Colvin

United States District Court, Second Circuit

May 21, 2013

WANDA GONZALEZ McINTYRE, Plaintiff,
v.
CAROLYN W. COLVIN, Comm'r of Soc. Sec., [1] Defendant.

LACHMAN & GORTON, PETER A. GORTON, ESQ. Endicott, NY, Counsel for Plaintiff.

U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II, JOANNE JACKSON, ESQ. New York, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Wanda Gonzalez McIntyre ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings, as well as Plaintiff's reply brief, which was filed with permission of the Court. (Dkt. Nos. 12, 13, 16.) For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born on July 5, 1970. Plaintiff has completed education through the tenth grade, and is able to communicate in English. Plaintiff has most recently worked as a technical support representative. Prior to that, Plaintiff did secretarial work, telemarketing, retail work, and home health care. Generally, Plaintiff's alleged disability consists of a back disorder and depression. Her alleged disability onset date is November 28, 2008, and her date last insured is June 30, 2012.

B. Procedural History

On December 17, 2008, Plaintiff applied for Social Security Disability Insurance and Supplemental Security Income. Plaintiff's application was initially denied, after which she timely requested a hearing before an Administrative Law Judge ("the ALJ"). On June 4, 2010, Plaintiff appeared pro se before the ALJ, Jeffrey M. Jordan. (T. 44-73.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on July 16, 2010. (T. 12-23.) On January 30, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-5.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following five findings of fact and conclusions of law. (T. 14-20.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset date. (T. 14.) Second, the ALJ found that Plaintiff's disorders of the back and affective disorder are severe impairments. ( Id. ) Third, the ALJ found that Plaintiff's impairments did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 15-16.) The ALJ considered Listings 1.04 and 12.04. ( Id. ) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform less than a full range of sedentary work as defined in 20 C.F.R. §§ 404.1567(a) and 416.967(a). (T. 16-18.) Specifically, the ALJ found that Plaintiff "can lift, carry, push and/or pull up to 10 pounds occasionally but must avoid at or above shoulder lifting, carrying, pushing and/or pulling. [Plaintiff] can stand and/or walk four hours in an eight-hour workday and sit four hours in an eight-hour workday but requires the option to sit/stand about every 15-30 minutes. In addition, [Plaintiff] must avoid climbing ladders, ropes and scaffolds as well as crawling but can perform other postural movements on an occasional basis." (T. 16.) Fifth, and finally, the ALJ determined that although Plaintiff can not perform her past relevant work, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T. 18-20.)

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

A. Plaintiff's Arguments

Plaintiff makes two arguments in support of her motion for judgment on the pleadings.

First, Plaintiff argues that the ALJ's RFC finding is not supported by substantial evidence because (a) it is inconsistent with his own findings and (b) he fails to set forth the non-exertional functional diminishments caused by Plaintiff's affective disorder. (Dkt. No. 12 at 3-4 [Pl.'s Mem. of Law].) Second, Plaintiff argues that the ALJ did not satisfy his burden at step five of the sequential analysis to prove that there are a significant number of jobs in the national, state or regional economy that Plaintiff can perform because the vocational expert's testimony was neither substantial nor ...


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