United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge
by counsel, Suzana Gulic (“plaintiff”) brings
this action pursuant to Title XVI of the Social Security Act
(“the Act”), seeking review of the final decision
of the Commissioner of Social Security (“the
Commissioner”) denying her application for supplemental
security income (“SSI”). The Court has
jurisdiction over this matter pursuant to 42 U.S.C. §
405(g). Presently before the Court are the parties'
cross-motions for judgment on the pleadings pursuant to Rule
12(c) of the Federal Rules of Civil Procedure. For the
reasons discussed below, the Commissioner's motion is
record reveals that in February 2012, plaintiff (d/o/b
January 2, 1987) applied for SSI, alleging disability as of
June 1, 2009. After her application was denied, plaintiff
requested a hearing, which was held before administrative law
judge William Weir (“the ALJ”) on August 2, 2013.
The ALJ issued an unfavorable decision on October 30, 2014.
The Appeals Council denied review of the ALJ's decision
and this timely action followed.
The ALJ's Decision
one of the five-step sequential evaluation process, see 20
C.F.R. § 416.920, the ALJ determined that plaintiff had
not engaged in substantial gainful activity since February 2,
2012, the application date. At step two, the ALJ found that
plaintiff suffered from the severe impairments of anxiety
disorder and depressive disorder. At step three, the ALJ
found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled a
proceeding to step four, the ALJ determined that, considering
all of plaintiff's impairments, plaintiff retained the
RFC to perform a full range of work at all exertional levels
but with the following nonexertional limitations: she could
continuously understand and remember simple instructions,
carry out simple instructions, and make judgments on simple
work-related decisions; she could occasionally understand and
remember complex instructions, carry out complex
instructions, and make judgments on complex work-related
decisions; and she should have no contact with the public,
but could have up to occasional contact with coworkers and
four, the ALJ found that plaintiff was capable of performing
past relevant work as a cleaner-housekeeper. Accordingly, the
ALJ found that plaintiff was not disabled and did not proceed
to step five.
district court may set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by “substantial
evidence” or if the decision is based on legal error.
42 U.S.C. § 405(g); see also Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000).
sole contention is that the ALJ erred in failing to allow
plaintiff's counsel to submit an alternate hypothetical
to the vocational expert (“VE”), who testified
not in person but via written interrogatories posed by the
ALJ. After the VE answered the ALJ's interrogatories,
which included a hypothetical based on the RFC found by the
ALJ, the ALJ wrote plaintiff's counsel and informed him
that he would grant a request to question the VE “if
[the ALJ] determine[d] that questioning the [VE was] needed
to inquire fully into the issues.” T. 221.
Plaintiff's counsel responded that he “wish[ed]
[the VE] to be asked to expand the hypothetical . . . [to
include limitations opined by plaintiff's treating
physician that plaintiff was] very limited in her ability to
work at a consistent pace and [had] moderate limitations in
maintaining attention and concentration.” T. 224. The
ALJ refused to allow this further questioning of the VE.
Notably, plaintiff does not contend that the ALJ's RFC
determination was unsupported by substantial evidence.
careful review of the ALJ's decision and the
administrative transcript, the Court concludes that the
ALJ's RFC assessment was supported by substantial
evidence, and that therefore, his refusal to allow further
questioning of the VE did not constitute reversible error.
See Priel v. Astrue, 453 F. App'x 84, 87-88 (2d
Cir. 2011) (“[T]he ALJ properly declined to include in
his hypothetical question symptoms and limitations that he
had reasonably rejected.”) (citing Dumas v.
Schweiker, 712 F.2d 1545, 1554 (2d Cir. 1983));
Mancuso v. Astrue, 361 F. App'x 176, 179 (2d
Cir. 2010) (rejecting plaintiff's argument that the
hypothetical posed to the VE failed to accurately reflect her
impairments, holding that “[t]he Commissioner may rely
on a vocational expert's testimony concerning the
availability of jobs suited to a hypothetical person's
capabilities so long as the hypothetical is based on
plaintiff argues that her further hypothetical should have
been posed “[a]s there was substantial evidence to
support [it], ” the question is not whether substantial
evidence supports plaintiff's position, but whether it
supported the ALJ's decision. See Bonet ex rel. T.B.
v. Colvin, 523 F. App'x 58, 59 (2d Cir. 2013)
(citing Selian v. Astrue, 708 F.3d 409, 417 (2d Cir.
2013)). Here, the hypothetical posed to the VE accurately
reflected the RFC in the ALJ's decision. That RFC was
supported by substantial evidence including the consulting
examiner's opinion, the reviewing state agency
psychologist opinion, and portions of the opinions of
plaintiff's own treating psychiatrist. See T. 20-28.
Additionally, the RFC was supported by the treatment notes
contained throughout the record, which indicated relatively
unremarkable mental status examinations as performed by
multiple medical sources, including plaintiff's treating
psychiatrist. Accordingly, the ALJ was not required to submit
to the VE a further hypothetical including the limitations
provided by plaintiff's counsel. See Gucinski v.
Colvin, 2014 WL 4659298, *10 (W.D.N.Y. Sept. 17, 2014)