United States District Court, N.D. New York
M. MARGOLIUS, ESQ. DAVID L. BROWN, ESQ.
OF PETER M. MARGOLIUS Attorney for Plaintiff SOCIAL SECURITY
ADMINISTRATION Attorney for Defendant
MEMORANDUM-DECISION AND ORDER 
J. Stewart U.S. Magistrate Judge.
Alfred Vaughn Moore brings this action pursuant to 42 U.S.C.
§ 405(g) of the Social Security Act, seeking review of
the Commissioner's decision denying Plaintiff's
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). This case has proceeded in accordance
with General Order 18, which sets forth the procedures to be
followed in appealing a denial of Social Security benefits.
Both parties have filed briefs. Dkt. Nos. 10, Pl.'s Br.,
11, Def.'s Br. For the reasons that follow, the decision
of the Commissioner is affirmed.
11, 2013, Plaintiff filed applications for DIB and SSI,
alleging disability beginning on July 30, 2009. Dkt. No. 8,
Admin. Transcript [hereinafter “Tr.”] at p. 10.
Plaintiff was born on July 8, 1964. Id. at p. 142.
For the majority of his life, Plaintiff worked in
construction. Id. at p. 147. Plaintiff stopped
working on September 26, 2008, when he suffered an injury to
his lower back at work. Id. at p. 146. The accident
occurred when Plaintiff stepped off a foundation into mud and
twisted his right leg. Id. at p. 265. Since that
date, Plaintiff has suffered lower back pain that has
prevented him from working and limited his activities.
Id. at pp. 27-28, 156, & 159-60. Plaintiff has
been diagnosed with degenerative disc disease of the lumbar
spine and lumbago. Id. at pp. 227.
claim was initially denied on October 2, 2013. Id.
at pp. 54-57. Plaintiff requested a hearing, which was held
in White Plains, New York on August 8, 2014 before
Administrative Law Judge (“ALJ”) Katherine
Edgell. Id. at p. 21. Plaintiff appeared and
testified by video, and was represented by a non-attorney
representative, Janice Cammarato. Id. at p. 23. The
ALJ also heard testimony from Esperanzo DiStefano, a
vocational expert (“VE”). Id. at p. 44.
On October 8, 2014, the ALJ issued a written decision finding
that Plaintiff was not disabled under the Social Security
Act. Id. at pp. 10-16. On January 4, 2016, the
Appeals Council denied Plaintiff's request for review,
making the ALJ's decision the final decision of the
Acting Commissioner. Id. at pp. 1-3. Plaintiff
timely filed this action on March 7, 2016. Dkt. No. 1, Compl.
Standard of Review
42 U.S.C. § 405(g), the proper standard of review for
this Court is not to employ a de novo review, but
rather to discern whether substantial evidence supports the
Commissioner's findings and that the correct legal
standards have been applied. See Rivera v. Sullivan,
923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan,
965 F.Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter
alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir. 1987)). Succinctly defined, substantial evidence is
“more than a mere scintilla” of evidence
scattered throughout the administrative record; rather, it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S.
197, 229 (1938); see also Williams ex. rel. Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To
determine on appeal whether an 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 ex. rel. Williams v. Bowen,
859 F.2d at 258.
must set forth the crucial factors supporting the decision
with sufficient specificity. Ferraris v. Heckler,
728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's
findings are supported by substantial evidence, the court may
not interject its interpretation of the administrative
record. Williams ex rel. Williams v. Bowen, 859 F.2d
at 258; 42 U.S.C. § 405(g). However, where the weight of
the evidence does not meet the requirement for substantial
evidence or a reasonable basis for doubt exists as to whether
correct legal principles were applied, the ALJ's decision
may not be affirmed. Johnson v. Bowen, 817 F.2d at
Determination of Disability
considered disabled within the meaning of the Social Security
Act, a plaintiff must establish an “inability to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore,
the claimant's physical or mental impairments must be of
such severity as to prevent engagement in any kind of
substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
determining whether a claimant is disabled, the Commissioner
follows a five-step analysis set forth in the Social Security
Administration Regulations. 20 C.F.R. §§ 404.1520
& 416.920. At Step One, the Commissioner “considers
whether the claimant is currently engaged in substantial
gainful activity.” Berry v. Schweiker, 675
F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in
substantial gainful activity, he or she is not disabled and
the inquiry ends. 20 C.F.R. §§ 404.1520(b) &
416.920(b). If the claimant is not engaged in substantial
gainful activity, the Commissioner proceeds to Step Two and
assesses whether the claimant suffers from a severe
impairment that significantly limits his or her physical or
mental ability to do basic work activities. Id. at
§§ 404.1520(c) & 416.920(c). If the claimant
suffers from a severe impairment, the Commissioner considers
at Step Three whether such impairment(s) meets or equals an
impairment listed in Appendix 1, in Part 404, Subpart P of
the Regulations. Id. at §§ 404.1520(d)
& 416.920(d). The Commissioner makes this assessment
without considering vocational factors such as age,
education, and work experience. Berry v. Schweiker,
675 F.2d at 467. Where the claimant has such an impairment
the inquiry ceases as he or she is presumed to be disabled
and unable to perform substantial gainful activity.
Id. If the claimant's impairment(s) does not
meet or equal the listed impairments, the Commissioner
proceeds to Step Four and considers whether the claimant has
the residual functional capacity
(“RFC”) to perform his or her past relevant work
despite the existence of severe impairments. 20 C.F.R.
§§ 404.1520(e) & 416.920(e). If the claimant
cannot perform his or her past work, then at Step Five, the
Commissioner considers whether the claimant can perform any
other work available in the national economy. Berry v.
Schweiker, 675 F.2d at 467; 20 C.F.R. §§
404.1520(g) & 416.920(g).
the burden of proof lies with the claimant to show that his
or her impairment(s) prevents a return to previous employment
(Steps One through Four). Berry v. Schweiker, 675
F.2d at 467. If the claimant meets that burden, the burden
then shifts to the Commissioner at Step Five to establish,
with specific reference to medical evidence, that the
claimant's physical and/or mental impairment(s) are not
of such severity as to prevent him or her from performing
work that is available within the national economy.
Id.; 42 U.S.C. § 423(d)(2)(A); see also
White v. Sec'y of Health & Human Servs., 910
F.2d 64, 65 (2d Cir. 1990). In making this showing at Step
Five, the claimant's RFC must be considered along with
other vocational factors such as age, education, past work
experience, and transferability of skills. 20 C.F.R.
§§ 404.1520(f) & 416.920(f); see also New
York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
ALJ Edgell's Findings
Edgell noted that for the purposes of Plaintiff's DIB
application, Plaintiff met the insured status requirements of
the Social Security Act through March 31, 2014. Tr. at p. 12.
Using the five-step disability evaluation, ALJ Edgell found
that: (1) at Step One, Plaintiff had not engaged in
substantial gainful activity since July 30, 2009, the alleged
onset date; (2) at Step Two, Plaintiff has severe medically
determinable impairments, specifically, degenerative disc
disease of the lumbar and cervical spine and lumbago; (3) at
Step Three, Plaintiff's impairments do not meet or
medically equal any impairment listed in Appendix 1, Subpart
P of the Social Security Regulation; (4) Plaintiff retains
the RFC to perform light work as defined in 20 C.F.R.
§§ 404.1567(b) and 416.967(b); (5) at Step Four,
Plaintiff is capable of performing past relevant work as a
labor foreman. Id. at pp. 12-16.
Plaintiff argues that: (1) the ALJ's RFC assessment is
not supported by substantial evidence and (2) the ALJ did not
give proper weight to the opinion of Kenneth Hansraj, M.D.,
Plaintiff's treating physician. Pl.'s Br.
The ALJ's RFC Assessment
is an assessment of “what an individual can still do
despite his or her limitations.” Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting
Policy Interpretation Ruling Titles II and XVI: Assessing
Residual Functional Capacity in Initial Claims, Social
Security Ruling (“SSR”) 96-8p, 1996 WL 374184, at
*2 (S.S.A. 1996)). “Ordinarily, RFC is the
individual's maximum remaining ability to do sustained
work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a
discussion of the individual's abilities on that basis. A
‘regular and continuing basis' means 8 hours a day,
for 5 days a week, or an equivalent work schedule.”
Id. (quoting SSR 96-8p, 1996 WL 374184, at *2). When
making the RFC determination, the ALJ considers all of the
relevant medical and other evidence in the record in order to
assess a claimant's physical abilities, mental abilities,
and other limitations that could interfere with performing
work activities on a regular ...