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Colon v. Colvin

United States District Court, N.D. New York

November 26, 2014


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



GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Melissa Colon ("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. 15, 16, 21.) For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.


A. Factual Background

Plaintiff was born on May 11, 1968. She has earned approximately three years of college credits. Plaintiff is also certified in phlebotomy and medical billing. Her most recent full time employment was as a phlebotomist in a hospital in 2004. Since that time, Plaintiff has worked part time as a patient coordinator, wardrobe consultant and receptionist. Plaintiff has also received unemployment compensation. Generally, Plaintiff's alleged disability consists of a back and neck injury with associated chronic pain, post-concussive syndrome with associated memory loss, migraine headaches, depression, bipolar disorder and attention deficit disorder. Plaintiff's alleged disability onset date is July 16, 2004.

B. Procedural History

On August 15, 2007, Plaintiff applied for Supplemental Security Income (SSI) and Social Security Disability Insurance benefits (SSDI). Plaintiff's SSDI application was denied because her insured status was not met and Plaintiff's SSI application was denied because the State Agency determined that she has the capacity for substantial gainful activity. Thereafter, Plaintiff timely requested a hearing before an Administrative Law Judge ("the ALJ"). On May 18, 2009, Plaintiff appeared at a hearing before the ALJ, Michal L. Lissek. (T.104-128.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on December 11, 2009. (T. 130-145.) On April 14, 2011, the Appeals Council remanded Plaintiff's case to ALJ, F. Patrick Lanagan, with instructions to give further consideration to Plaintiff's RFC, if necessary; obtain further evidence from a medical expert regarding the severity of Plaintiff's impairments; and, if warranted, obtain vocational expert evidence regarding Plaintiff's occupational base. (T. 149-153.) The Appeals Council further instructed the ALJ to associate Plaintiff's duplicate claim for SSI, filed on January 21, 2011, and issue a new decision on the associated claims.[1] (T. 151.)

On May 17, 2012, Plaintiff appeared at a hearing before ALJ Lanagan. (T. 41-103.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on August 10, 2012. (T. 10-40.) On August 19, 2013, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (T. 16-30.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged disability onset date. (T. 16.) Second, the ALJ found that Plaintiff's degenerative disc disease of the cervical and lumbar spine, headaches, adjustment disorder, panic disorder, cognitive disorder not otherwise specified (NOS) and borderline intellectual functioning are severe impairments, but that Plaintiff's mild degenerative changes in the thoracic spine, gastroesophageal reflux disease (GERD), asthma, insomnia, history of rhinitis, an inguinal hernia, hypothyroidism, hyperlipidemia, hemorrhoids, anemia and constipation are not severe. (T. 16-20.) Third, the ALJ found that Plaintiff's severe impairments, alone or in combination, did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 20-22.) The ALJ considered Listings 1.04, 12.04, 12.05 and 12.06. Fourth, the ALJ found that Plaintiff has

the residual functional capacity ["RFC"] to perform sedentary work as defined in 20 C.F.R. § 404.1567(a), in that [she] is able to lift and/or carry ten pounds occasionally, stand and walk for one hour in an eight-hour workday, and sit for one hour at a time and six hours total in an eight-hour workday. [Plaintiff] is able to occasionally reach overhead and push/pull with both upper extremities. [Plaintiff] is able to occasionally use her feet for operation of foot controls. [Plaintiff] is able to occasionally stoop and climb stairs and ramps, but she cannot climb ladders or scaffolds, balance, kneel, crouch, and crawl. [Plaintiff] must avoid exposure to unprotected heights and moving mechanical parts, and she must avoid concentrated exposure to humidity and wetness, respiratory irritants, extreme temperatures, and vibrations. Additionally, [Plaintiff] is able to understand, remember, and carry out simple tasks and make judgments on simple tasks. [Plaintiff] is able to frequently interact with the public, supervisors and co-workers, and she is able to frequently respond appropriately to usual work situations and to changes in a routine work setting.

(T. 22-29.) Fifth, the ALJ found that Plaintiff is unable to perform any past relevant work. (T. 29.) Sixth, and finally, the ALJ found that there are jobs that exist in significant numbers in the national economy that the Plaintiff can perform. (T. 29-30.)


Plaintiff makes three separate arguments in support of her motion for judgment on the pleadings. First, Plaintiff argues that the ALJ erred in failing to properly consider Plaintiff's ability to work consistently enough to allow for employment in significant numbers in the national economy, including factors such as absenteeism, the ability to stay on task, the ability to maintain work pace and concentration, and the ability to work without additional breaks. (Dkt. No. 15 at 12-20 [Pl.'s Mem. of Law].) Second, Plaintiff argues that, alternatively, the ALJ failed to assess Plaintiff's ability to frequently deal with others. ( Id. at 20-23.) Third, and finally, Plaintiff argues that this Court should enter judgment of reversal with payment of benefits rather than remand for further consideration. ( Id. at 24.)

In response, Defendant makes two arguments. First, Defendant argues that the ALJ properly considered Plaintiff's ability to remain on task, maintain concentration and pace, work consistently and sustain a normal work schedule, including the proper weighing of medical evidence and the proper evaluation of Plaintiff's credibility. (Dkt. No. 16 at 7-20 [Def.'s Mem. of Law].) Second, and finally, Defendant argues that the ALJ's assessment of Plaintiff's ability to interact with others is supported by substantial evidence. ( Id. at 20-22.)

In reply to Defendant's response, Plaintiff makes two arguments. First, Plaintiff argues that, in her response, the Defendant fails to argue that the ALJ actually considered Plaintiff's ability to work consistently, instead arguing that the medical evidence of Plaintiff's limitations as well as Plaintiff's assertions regarding those limitations are contradicted by the evidence of Plaintiff's activities of daily living. (Dkt. No. 21 at 1-2 [Pl.'s Reply Mem. of Law].) Second, Plaintiff argues that the Defendant fails to address Plaintiff's argument regarding the ...

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