United States District Court, N.D. New York
OSTERHOUT DISABILITY LAW ATTORNEYS FOR PLAINTIFF, OLINSKY LAW
GROUP ATTORNEYS FOR PLAINTIFF SOCIAL SECURITY ADMINISTRATION,
OFFICE OF GENERAL COUNSEL ATTORNEYS FOR DEFENDANT
COUNSEL KARL E. OSTERHOUT, ESQ. PAUL B. EAGLIN, ESQ.
MEMORANDUM-DECISION AND ORDER
CHRISTIAN F. HUMMEL U.S. MAGISTRATE JUDGE
Veronica Lynn Sappah (“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 her 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, 10.
November 13, 2012, plaintiff 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 February 1, 2012. T. 141-44. The
application was denied on January 29, 2013. Id. at
67-76. Plaintiff requested a hearing before an administrative
law judge (“ALJ”), which was held before ALJ
Gregory M. Hamel on January 14, 2014. Id. at 29-66
(transcript of hearing). In a decision dated March 28, 2014,
the ALJ held that plaintiff was not entitled to disability
benefits. Id. at 9-28. Plaintiff filed a timely
request for review with the Appeals Council, and on July 8,
2015, the request was denied, thus making the ALJ's
findings the final decision of the Commissioner. Id.
at 1-7. 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 Hamel's Findings
represented by counsel, testified at the hearing held on
January 14, 2014. T. 29-66. Using the five-step sequential
evaluation, ALJ Hamel found that plaintiff (1) had not
engaged in substantial gainful activity since February 1,
2012, the alleged onset date; (2) had the following severe
medically-determinable impairments: degenerative disc disease
of the lumbosacral and thoracic spine (lumbar spondylosis),
pes planus with right inversion ankle and tibial
insufficiency, obesity, degenerative joint disease and
impingement syndrome affecting the right shoulder, and
degenerative changes of the right hip; (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 light work as defined
in 20 CFR 404.1567(b) but cannot climb ladders or similar
devices or work in hazardous environments such as at heights
or around dangerous machinery. The claimant is further
limited to no more than occasional climbing stairs,
balancing, stooping, kneeling, crouching, or crawling”;
and, thus (5) was capable of performing her past relevant
work as a hotel desk clerk and convenience store clerk.
Id. at 14-24.
contends that the ALJ (1) erred in failing to properly apply
the treating physician rule to the opinions of
plaintiff's treating physicians: Dr. Michael McNulty,
M.D. and Dr. Elizabeth Hutton Lykling, M.D.; and (2) erred in
failing to find plaintiff's mental ...