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Allen v. Commissioner of Social Security

United States District Court, W.D. New York

February 15, 2017



          HON. MICHAEL A. TELESCA United States District Judge.


         Scott Ray Allen (“Plaintiff”), represented by counsel, brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“Defendant” or “the Commissioner”), denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).


         Plaintiff filed applications for DIB and SSI on September 11, 2012 (T.154-166), [1] alleging disability beginning on his date of birth in 1973. (T.154, 161). After Plaintiff's claims were initially denied on January 11, 2013 (T.89-96), he timely filed a written request for hearing on February 24, 2013. (Tr.97-98). On July 10, 2014, a hearing was held via videoconference before administrative law judge David J. Begley (“the ALJ”). (T.35-63). Plaintiff appeared with his attorney and testified, as did an impartial vocational expert, Stephanie Archer (“the VE”). On November 7, 2014, the ALJ issued an unfavorable decision. (T.10-29). Plaintiff requested review by the Appeals Council on January 24, 2014. (T.7-9). The Appeals Council denied the request on February 5, 2016, making the ALJ's decision the final decision of the Commissioner. (T.1-6). Plaintiff timely filed this action.

         The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Court adopts and incorporates by reference herein the undisputed and comprehensive factual summaries contained in the parties' briefs. The record will be discussed in more detail below as necessary to the resolution of this appeal.

         For the reasons that follow, the Commissioner's decision is affirmed.


         At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity during the period at issue. At step two, the ALJ found that Plaintiff had the following “severe impairments”: lumbar degenerative disc disease, degenerative joint disease of the left shoulder, obstructive sleep apnea, asthma, obesity, borderline intellectual functioning, attention deficit hyperactivity disorder, and rule-out anxiety disorder and cannabis abuse. At step three, the ALJ determined that Plaintiff did not meet or equal any listed impairment. Before proceeding to step four, the ALJ assessed Plaintiff as having the residual functional capacity (“RFC”) to perform

a range of light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b) except he can occasionally climb, balance, stoop, kneel, crouch, and crawl. He should not reach overhead with the left upper extremity. He should avoid concentrated exposure to humidity, extreme heat and cold, and pulmonary irritants . . . . He should avoid slippery and uneven surfaces, hazardous machinery, unprotected heights, and open flames. Secondary to mental impairments, the claimant can perform simple, routine, repetitive tasks. He can work in a low stress job, defined as having no fixed production quotas, no hazardous conditions, only occasional decision making required, and only occasional changes in the work setting.

         (T.15, 18).

         At step four, the ALJ considered the VE's testimony from the hearing classifying Plaintiff's past relevant work: cashier (Dictionary of Occupational Titles (“DOT”) 211.462-101, light exertion, SVP of 2); and sander (DOT 761.687-010, light exertion, SVP of 2). (T.60-61). Currently, Plaintiff was working as a salvage laborer (DOT 929.687-022, medium exertion, SVP of 2). (T.61). However, the VE testified, Plaintiff was actually performing this work at the light, not medium, exertional level. Furthermore, the VE was uncertain whether it could be considered competitive employment, because Plaintiff had a job coach present with him. The ALJ then had questioned the VE regarding a hypothetical individual with the above-quoted RFC. The VE testified that such an individual could perform Plaintiff's past work as a cashier, but could not perform his past work as a sander. (T.62). The VE also had testified that even assuming the laborer job was competitive, the hypothetical individual could do the work as Plaintiff is performing it, but not as it is generally performed in the national economy. The ALJ relied on the VE's testimony to find that Plaintiff could perform his past work as cashier. Therefore, the ALJ did not proceed to the fifth step, and entered a finding of not disabled.


         A decision that a claimant is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ applied the correct legal standards. 42 U.S.C. § 405(g). “Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [the district court] will not substitute [its] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002). This deferential standard is not applied to the Commissioner's application of the law, and the district court must independently determine whether the Commissioner's decision applied the correct legal standards in determining that the claimant was not disabled. Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Failure to apply the correct legal standards is grounds for reversal. Id. Therefore, this Court first reviews whether the applicable legal standards were correctly applied, and, if so, then considers the substantiality of the ...

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