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Joe v. Colvin

United States District Court, N.D. New York

June 26, 2015

GARY JOE, Plaintiff,
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

NICHOLAS, PEROT LAW FRIM, MICHAEL J. WELCH, ESQ., Liverpool, NY, Counsel for Plaintiff.



GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Gary Merril Joe ("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. (Dkt. Nos. 10, 12.) For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.


A. Factual Background

Plaintiff was born on February 28, 1964. (T. 373.) He completed 10th grade. (T. 406.) Generally, Plaintiff's alleged impairments consist of arthritis, bad right hand, rotator cuff injury, neck problems, high blood pressure, and depression. (T. 401.) His alleged disability onset date is April 21, 2005 and his date last insured is June 30. 2007. (T. 396.) Plaintiff previously worked as a heavy equipment operator, laborer, and frogger. (T. 402.)

B. Procedural History

On February 16, 2007, Plaintiff applied for Social Security Disability Insurance Benefits ("SSD") under Title XVI and Supplemental Security Income ("SSI") under Title II. Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On September 15, 2009, Plaintiff appeared before ALJ Robert E. Gale. (T. 82-132.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on December 11, 2009. (T. 275-292.) On October 5, 2011, the Appeals Council granted Plaintiff's request for review, remanding his case. (T. 293-297.) On December 11, 2012, Plaintiff again appeared before ALJ Gale. (T. 133-272.) On February 11, 2013, the ALJ issued a written decision finding Plaintiff not disabled. (T. 21-58.) The Plaintiff again requested an Appeal Council review, which was denied on February 10, 2014. (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. 27-49.) First, the ALJ found Plaintiff met his insured dated through June 30, 2007 and further, Plaintiff had not engaged in substantial gainful activity since April 21, 2005. (T. 27-28.) Second, the ALJ found Plaintiff had the severe impairments of status post left rotator cuff surgery and left shoulder osteoarthritis with right shoulder involvement, cervical spine strain/sprain, multiple joint arthritis, sleep apnea, nasal polyps, allergic rhinitis, deviated septum, environmental allergies, obesity, and depressive disorder (as variously characterized). ( Id. ) The ALJ determined Plaintiff's medically determinable impairments of hypertension, hyperlipidemia, vertigo, gastroesophageal reflux disease, acid reflux, and poor vision were non-severe impairments. (T. 29.) Third, the ALJ found Plaintiff did not have an impairment that meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1 ("the Listings"). (T. 31.) The ALJ specifically considered Listing §§ 1.02, 1.04, 3.10, 14.09, 1.00, 3.00, 14.00 and 12.04. (T. 31-32.) Fourth, the ALJ found Plaintiff had the residual functional capacity ("RFC") to do "light work[1]" with additional mental limitations. ( Id. ) Specifically, Plaintiff could "use the right hand frequently to handle, finger, feel, push or pull without greater limitations; can occasionally lift overhead with the right arm; should avoid lifting above chest height with the left arm; can bilaterally and frequently use foot controls; has no postural limitations; can occasionally work at unprotected heights in the vicinity of a moving mechanical parts; can occasionally operate a motor vehicle; can occasionally work in humidity and wetness, dust and other pulmonary irritants, temperature extremes, and vibrations; is limited to simple tasks; can perform tasks involving only occasional judgment required on the job; can occasionally interact with public, co-workers and supervisors; and can sustain sufficient attention and concentration to maintain a regular sustained performance of rote tasks." (T. 34.) Fifth, the ALJ determined that although Plaintiff could not perform his past relevant work, there were jobs that exist in significant numbers in the national economy Plaintiff could perform. (T. 46-49.)


A. Plaintiff's Arguments

Plaintiff makes five separate arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues the ALJ failed to determine Plaintiff's condition met or equaled Listing § 12.04. (Dkt. No. 10 at 5-12 [Pl.'s Mem. of Law].) Second, Plaintiff argues the ALJ failed to determine Plaintiff's RFC was less than sedentary. ( Id. at 12-17.) Third, Plaintiff argues the ALJ failed to give controlling weight to Plaintiff's treating providers and Rita Clark, M.D. ( Id. at 17-18.) Fourth, and lastly, Plaintiff argues the ALJ improperly admitted, and failed to properly evaluate, testimony of the vocational expert ("VE"). ( Id. at 18-22.)

B. Defendant's Arguments

In response, Defendant makes essentially four arguments. First, Defendant argues the ALJ correctly found Plaintiff did not meet Listing § 12.04. (Dkt. No. 12 at 6-14 [Def.'s Mem. of Law].) Second, Defendant argues the ALJ properly evaluated the evidence. ( Id. at 14-19.) Third, Defendant argues the ALJ properly evaluated Plaintiff's impairments throughout the sequential process. ( Id. at 19-20.) Fourth, and lastly, Defendant argues the Commissioner's burden was met at step five. ( Id. at 20-24.)


A. Standard of Review

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed 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 ...

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