United States District Court, N.D. New York
Olinsky Law Group Attorneys for Plaintiff Social Security
Administration, Office of General Counsel Attorneys for
D. OLINSKY, ESQ.
P. PECK, ESQ. Special Assistant U.S. Attorney
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
Morgan Christopher Beall (“Plaintiff”) brings
this action pursuant to 42 U.S.C. § 405(g) seeking
review of a decision by the Commissioner of Social Security
(“Commissioner”) denying his application for
benefits under the Social Security Act (“Act”).
Plaintiff moves for a finding of disability, or in the
alternative, for the matter to be remanded for further
proceedings, and the Commissioner cross-moves for a judgment
on the pleadings. Dkt. Nos. 1, 8.
September 26, 2012, plaintiff protectively filed an
application for disability insurance benefits pursuant to the
Social Security Act, 42 U.S.C. § 401 et seq.,
claiming an alleged onset date of May 15, 2012.
168-70. The application was denied on December 20, 2012.
Id. at 87-90. Plaintiff requested a hearing before
an administrative law judge (“ALJ”), which was
first held before ALJ Marie Greener on February 27, 2014.
Id. at 48-70. A second hearing was held on June 19,
2014, at which time ALJ Greener sought the testimony of a
vocational expert. See T. 29-47. In a decision dated
August 6, 2014, the ALJ held that plaintiff was not entitled
to disability benefits. Id. at 10-28. Plaintiff
filed a timely request for review with the Appeals Council,
and on December 2, 2015, the request was denied, thus making
the ALJ's findings the final decision of the
Commissioner. Id. at 1-5. This action followed.
Standard of Review
reviewing a final decision of the Commissioner, a court must
determine whether the correct legal standards were applied
and whether substantial evidence supports the decision.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982). Substantial evidence is “‘more than a mere
scintilla, '” meaning that in the record one can
find “‘such relevant evidence as a reasonable
mind might accept as adequate to support a
conclusion.'” Halloran v. Barnhart, 362
F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971) (internal quotation
addition, an ALJ must set forth the crucial factors
justifying his findings with sufficient specificity to allow
a court to determine whether substantial evidence supports
the decision.” Barringer v. Comm'r of Soc.
Sec., 358 F.Supp.2d 67, 72 (N.D.N.Y. 2005) (citing
Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir.
1984)). However, a court cannot substitute its interpretation
of the administrative record for that of the Commissioner if
the record contains substantial support for the ALJ's
decision. Yancey v. Apfel, 145 F.3d 106, 111 (2d
Cir. 1998). If the Commissioner's finding is supported by
substantial evidence, it is conclusive. 42 U.S.C. §
405(g); see Halloran, 362 F.3d at 31.
Determination of Disability
individual who is under a disability. . . shall be entitled
to a disability. . . benefit . . . .” 42 U.S.C. §
423(a)(1). Disability is defined as the “inability to
engage in any substantial gainful activity by reason of any
medically determinable physical or mental impairment . . .
which has lasted or can be expected to last for a continuous
period of not less than 12 months.” Id. §
423(d)(1)(A). A medically-determinable impairment is an
affliction that is so severe that it renders an individual
unable to continue with his or her previous work or any other
employment that may be available to him or her based upon
age, education, and work experience. Id. §
423(d)(2)(A). Such an impairment must be supported by
“medically acceptable clinical and laboratory
diagnostic techniques.” Id. § 423(d)(3).
Additionally, the severity of the impairment is “based
[upon] objective medical facts, diagnoses or medical opinions
inferable from [the] facts, subjective complaints of pain or
disability, and educational background, age, and work
experience.” Ventura v. Barnhart, No. 04 Civ.
9018(NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006)
(citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d
Cir. 1983)) (additional citation omitted).
Second Circuit employs a five-step analysis, based on 20
C.F.R. § 404.1520, to determine whether an individual is
entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he [or
she] is not, the [Commissioner] next considers whether the
claimant has a “severe impairment” which
significantly limits his [or her] physical or mental ability
to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on
medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the claimant has
such an impairment, the [Commissioner] will consider him [or
her] disabled without considering vocational factors such as
age, education, and work experience; the [Commissioner]
presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform
substantial gainful activity. Assuming the claimant does not
have a listed impairment, the fourth inquiry is whether,
despite the claimant's severe impairment, he [or she] has
the residual functional capacity (“RFC”) to
perform his [or her] past work. Finally, if the claimant is
unable to perform his [or her] past work, the [Commissioner]
then determines whether there is other work which the
claimant could perform.
Berry, 675 F.2d at 467. The plaintiff bears the
initial burden of proof to establish each of the first four
steps. DeChirico v. Callahan, 134 F.3d 1177, 1179-80
(2d Cir. 1998) (citing Berry, 675 F.2d at 467). If
the inquiry progresses to the fifth step, the burden shifts
to the Commissioner to prove that the plaintiff is still able
to engage in gainful employment somewhere. Id. at
1180 (citing Berry, 675 F.2d at 467).
ALJ Greener's Findings
represented by counsel, testified at the hearings held on
February 27 and June 19, 2014. T. 29-70. Using the five-step
sequential evaluation, ALJ Greener found that plaintiff (1)
had not engaged in substantial gainful activity since May 15,
2012, the alleged onset date; (2) had the following severe
medically-determinable impairments: degenerative disc disease
in the cervical and lumbar spines, adjustment disorder, and
post-traumatic stress disorder; (3) did not have an
impairment, alone or in combination, sufficient to meet the
listed impairments in Appendix 1, Subpart P of Social
Security Regulation Part 404; (4) maintained “the
residual functional capacity to perform less than a full
range of light work as defined in 20 CFR 404.1567(b). He can
lift and carry 20 pounds occasionally, 10 pounds frequently,
sit for 6 hours in an 8-hour workday and stand or walk for 6
hours in that workday if he can alternate sitting and
standing, with sitting limited to 60 minutes at a time after
which he can stand for 5 minutes or so. During the position
change, he does not have to leave the workstation. The
claimant can stand or walk for 60 minutes at a time, but then
has to sit for 5 minutes or so before resuming standing and
walking. The work must be low stress, specifically meaning
that it must concern routine daily tasks that do not
significantly change in pace or location on a daily basis and
do not ordinarily require confrontation with others, such as
arguing with customers or detaining or restraining
individuals”; and, thus (5) was capable of performing
jobs existing in significant numbers in the national economy.
Id. at 15-23.
contends that the ALJ (1) erred in failing to assign any
weight to plaintiff's Veterans Administration (VA)
disability determination; (2) erred in failing to find that
plaintiff's degenerative disc disease did not meet or
equal Listing 1.04(A); (3) erred in failing to give good
reasons for the rejection of the opinions of physical
therapist Caryn Lindsay, and pain management specialist Dr.
Renee S. Melfi, M.D.; (4) erred in assessing plaintiff's
credibility in terms of his pain; and (5) erred in presenting
the vocational expert with hypothetical questions that did
not fully take into account plaintiff's limitations.
See Dkt. No. 11.
previously stated, at step three of the sequential disability
evaluation process, the ALJ must determine whether the
claimant's conditions meet or equal the requirements for
any impairment listed in Part 404 of the Social Security
Regulations, Subpart P, Appendix 1. 20 C.F.R. §
404.1520(a)(4)(iii). “The Listing of Impairments
describes, for each of the major body systems, impairments
which are considered severe enough to prevent a person from
doing any gainful activity.” 20 C.F.R. §
404.1525(a). If a claimant's impairment or combination of
impairments meets or equals a listed impairment, the