United States District Court, W.D. New York
DECISION AND ORDER
WILLIAM M. SKRETNY United States District Judge.
Plaintiff Edelmiro Cruz, Jr. challenges an Administrative Law
Judge's (“ALJ”) determination that he is not
disabled within the meaning of the Social Security Act
(“the Act”). Plaintiff alleges that he has been
disabled since January 31, 2012, due to the following severe
impairments: thoracolumbar disc disease, migraine headaches,
ear pain, anxiety, depression, asthma, vertigo,
temporomandibular joint disorder (“TMJ”), sleep
apnea, and hypertension. Plaintiff argues that his
impairments have rendered him unable to work. He therefore
asserts that he is entitled to payment of disability
Plaintiff filed an application for disability insurance
benefits on March 21, 2012. The Commissioner denied the
application, after which Plaintiff timely filed a request for
a hearing. Pursuant to Plaintiff's request, ALJ David S.
Lewandowski held an administrative hearing on June 10, 2013.
Plaintiff appeared with counsel and testified, as well as an
impartial vocational expert. The ALJ considered the case
de novo, and on August 26, 2013, issued a decision
denying Plaintiff's application for benefits. On December
24, 2014, the Appeals Council denied Plaintiff's request
for review, thereby rendering the ALJ's August 26, 2013
decision the Commissioner's final decision.
Plaintiff filed the current civil action on February 27,
2015, challenging the Commissioner's final decision. On
September 22, 2015, Plaintiff filed a Motion for Judgment on
the Pleadings pursuant to Rule 12(c) of the Federal Rules of
Civil Procedure. (Docket No. 9.) Defendant filed a Motion for
Judgment on the Pleadings on November 23, 2015. (Docket No.
11.) After full briefing, this Court deemed the motions
submitted and reserved decision. For the following reasons,
Defendant's motion is granted and Plaintiff's is
court reviewing a denial of disability benefits may not
determine de novo whether an individual is disabled.
See 42 U.S.C. §§ 405(g), 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 be reversed only if it
is not supported by substantial evidence or there has been a
legal error. See Grey v. Heckler, 721 F.2d 41, 46
(2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27
(2d Cir. 1979). Substantial evidence is that which amounts to
“more than a mere scintilla, ” and it has been
defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct.
1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed
susceptible to more than one rational interpretation, the
Commissioner's conclusion must be upheld. See
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
“To determine on appeal whether the ALJ's findings
are supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the
evidence must also include that which detracts from its
weight.” Williams on Behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by
substantial evidence, the Commissioner's finding must be
sustained “even where substantial evidence may support
the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the
[Commissioner's].” Rosado v. Sullivan, 805
F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner's determination considerable
deference, and will not substitute “its own judgment
for that of the [Commissioner], even if it might justifiably
have reached a different result upon a de novo
review.” Valente v. Sec'y of Health & Human
Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
Commissioner has established a five-step sequential
evaluation process to determine whether an individual is
disabled as defined under the Act. See 20 C.F.R.
§§ 404.1520, 416.920. The United States Supreme
Court recognized the validity of this analysis in Bowen
v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287, 2291,
96 L.Ed.2d 119 (1987), and it remains the proper approach for
analyzing whether a claimant is disabled.
five-step process is detailed below:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is
not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly
limits his 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 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 has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to
perform his past work, the [Commissioner] then determines
whether there is other work which the claimant could perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)
(per curiam) (quotations in original); see also Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999); 20 C.F.R.
While the claimant has the burden of proof as to the first
four steps, the Commissioner has the burden of proof on the
fifth and final step. See Bowen, 482 U.S. at 146 n.
5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir.
1984). The final step of this inquiry is, in turn, divided
into two parts. First, the Commissioner must assess the
claimant's job qualifications by considering his physical
ability, age, education, and work experience. Second, the
Commissioner must determine whether jobs exist in the
national economy that a person having the claimant's
qualifications could perform. See 42 U.S.C. §
423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v.
Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76
L.Ed.2d 66 (1983).
this case, the ALJ determined that Plaintiff last met the
insured status requirements of the Act on December 31, 2016.
He then made the following findings with regard to the
five-step process, set forth above: (1) Plaintiff has not
engaged in substantial gainful activity (“SGA”)
since his alleged onset of disability date on January 31,
2012 (R. at 27); (2) Plaintiff has the following severe
impairments: cervical, thoracic, and lumbar disc disease
status post-assault and cervicogenic headaches
(id.); (3) Plaintiff does not have an impairment or
combination of impairments that meets or medically equals the
severity of one of the listed impairments in 20 C.F.R.
§§ 404.1520(d), 404.1525, and 404.1526 (R. at 29);
(4) Plaintiff retains the residual functional capacity
(“RFC”) to perform sedentary exertional work as
defined in 20 C.F.R. § 404.1567(a) with certain
additional exertional and non-exertional limitations, and that this
RFC precluded Plaintiff from performing any past relevant
work (R. 29-31); and (5) considering the Plaintiff's age,
education, work experience, and RFC, there are jobs that
exist in significant numbers in the national economy that
Plaintiff can perform (R. 33). Ultimately, the ALJ concluded
that Plaintiff was not disabled, as defined by the Act, at
any time through the date of his decision. (R. at 34.)
Plaintiff challenges three elements of the ALJ's
decision. Plaintiff first argues that the ALJ erred by not
considering Plaintiff's TMJ, vertigo, ear pain, and
hearing loss as severe impairments at Step Two of the
five-step analysis. A “severe impairment” is
“any impairment or combination of impairments which
significantly limits [a claimant's] physical or mental
ability to do basic work activities, ” including
understanding and carrying out simple instructions and
responding appropriately to others in usual work situations.
20 C.F.R. § 404.1520(c); § 404.1521. An ALJ is
required to identify all impairments supported by substantial
evidence at Step Two, in order to avoid “prejudic[ing]
the claimant at later steps in the sequential evaluation
process.” Lowe v. Colvin, No.
6:15-CV-06077(MAT), 2016 WL 624922, at *3 (W.D.N.Y. Feb. 17,
2016) (internal quotation omitted). “Any error in
failing to identify a severe impairment, however, is harmless
if that impairment is specifically considered during the
subsequent steps.” Morales v. Colvin, No.
13-CV-550S, 2014 WL 4829351, at *4 (W.D.N.Y. Sept. 29, 2014)
(citing Reices-Colon v. Astrue, 523 F. App'x
796, 798 (2d Cir. 2013) (finding an alleged Step Two error
harmless because the ALJ considered the impairments found
non-severe during subsequent steps)); see also
Diakogiannis v. Astrue, 975 F.Supp.2d 299, 311-12
(W.D.N.Y. 2013) (“[a]s a general matter, an error in an
ALJ's severity assessment with regard to a given
impairment is harmless when it is clear that the ALJ
considered the claimant's impairments and their effect on
his or her ability to work during the balance of the
sequential evaluation process”) internal quotations and
the ALJ did not identify TMJ as a severe impairment at Step
Two, he did find Plaintiff's headaches to be a severe
impairment and considered them throughout the remainder of
the assessment. (R. at 27.) Other than headaches, the only
other documented symptom of Plaintiff's TMJ is an audible
clicking sound noted by Dr. Dave, a consulting examiner. (R.
at 316.) Because Plaintiff does not argue that clicking noise
limited his ability to perform work activities, and because
the limitations arising from Plaintiff's TMJ-induced
headaches were properly incorporated into the RFC, there was
no error in not specifically naming TMJ as a severe
impairment at Step Two. Zabala v. Astrue, 595 F.3d
402 (2d Cir. 2010) (remand is not necessary when there is no
reasonable likelihood that an ALJ's examination of the
same evidence would change the RFC determination); see
generally Paz v. Comm'r of Soc. Sec., No.
14-cv-6885, 2016 WL 1306534, at *13 (E.D.N.Y. Mar. 31, 2016)
(remand not warranted despite ALJ's failure to recognize