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Mushtare v. Colvin

United States District Court, N.D. New York

June 25, 2015

TODD M. MUSHTARE, Plaintiff,
v.
CAROLYN W. COLVIN, Comm'r of Soc. Sec., Defendant.

LAWRENCE D. HASSELER, ESQ., CONBOY, McKAY, BACHMAN & KENDALL, LLP, Counsel for Plaintiff, Carthage, NY.

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

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Todd M. Mushtare ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. § 405(g) are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 10, 11.) 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 September 21, 1974. He has completed a high school education and one and a half years of community college. Plaintiff has had full time employment as an electrician apprentice, corrections officer and United States Army soldier, and part time employment as an electrical equipment assembler and machine operator. Generally, Plaintiff's alleged disability consists of a right ankle injury, right knee injury, torn right rotator cuff, depression, Post Traumatic Stress Disorder ("PTSD"), anxiety, Attention Deficit Disorder ("ADD"), arthritis, memory retention difficulties and insomnia. His alleged disability onset date is July 15, 2008, and his date last insured is December 31, 2013.

B. Procedural History

On July 24, 2011, Plaintiff applied for Social Security Disability Insurance. Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On May 1, 2013, Plaintiff appeared, pro se, before the ALJ, Elizabeth W. Koennecke. (T. 90-117.) The ALJ advised Plaintiff of his right to be counseled by an attorney or some representative, but Plaintiff waived that right. (T. 92-93.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on July 29, 2013. (T. 72-89.) On May 6, 2014, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 3-9.) Thereafter, Plaintiff, now represented by counsel, timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in her decision, the ALJ made the following six findings of fact and conclusions of law. (T. 77-86.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. (T. 77.) Second, the ALJ found that Plaintiff's right ankle degenerative joint disease, alcohol abuse disorder, and a mental impairment (variously characterized) are severe impairments, but that Plaintiff's wrist pain, mild left ankle degenerative disease, left hip pain, mild degenerative disease of the cervical spine, right knee pain, degenerative disease of the right shoulder, pelvic pain and insomnia are not severe. (T. 78-79.) Third, the ALJ found that Plaintiff's impairments do not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 79-81.) The ALJ considered Listings 1.02A, 12.04. 12.06, 12.08 and 12.09. ( Id. ) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. § 404.1567(b).[1] (T. 81-84.) In addition, the ALJ found that Plaintiff retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, maintain attention and concentration for simple tasks, regularly attend to a routine and maintain a schedule, relate to and interact appropriately with others to the extent necessary to carry out simple tasks, and handle simple work-related stress in that he can make decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require [Plaintiff] to supervise or manage the work of others. ( Id. ) Fifth, and finally, the ALJ determined that while Plaintiff is unable to perform any past relevant work, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T. 84-86.)

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

A. Plaintiff's Arguments

Plaintiff makes four separate arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ erred in failing to classify his degenerative disc disease of the right shoulder as a severe impairment. (Dkt. No. 10 at 17-18 [Pl.'s Mem. of Law].) Second, Plaintiff argues that the ALJ erred by failing to follow the treating physician rule when weighing the opinions of medical sources ( Id. at 18-22.) Third, Plaintiff argues that the ALJ erred in failing to properly assess his RFC. ( Id. at 22-25.) Fourth, and finally, Plaintiff argues that the ALJ erred at step five of the sequential analysis by failing to obtain the opinion of a vocational expert. ( Id. at 24-25.)

B. Defendant's Arguments

In response, Defendant makes three arguments. First, Defendant argues that the ALJ's determination at step two of the sequential analysis was supported by substantial evidence. (Dkt. No. 11 at 7-8 [Def.'s Mem. of Law].) Second, Defendant argues that the ALJ properly evaluated the medical opinions of record. ( Id. at 9-13.) Third, and finally, Defendant argues that the ALJ's RFC determination was supported by substantial evidence. ( Id. at 12.)

III. RELEVANT LEGAL ...


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