United States District Court, N.D. New York
SALLY A. VANBENSCHOTEN, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OF PETER M. MARGOLIUS PETER M. MARGOLIUS Counsel for
SOCIAL SECURITY ADMIN. FERGUS J. KAISER, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge
before the Court, in this Social Security action filed by
Sally A. Vanbenschoten (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or
“the Commissioner”) pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), are Plaintiff's
motion for judgment on the pleadings and Defendant's
motion for judgment on the pleadings. (Dkt. No. 11, 12.) For
the reasons set forth below, Plaintiff's motion for
judgment on the pleadings is denied and Defendant's
motion for judgment on the pleadings is granted. The
Commissioner's decision denying Plaintiff's
disability benefits is affirmed, and Plaintiff's
Complaint is dismissed.
was born in 1982, making her 27 years old at the alleged
onset date and 32 years old at the date of the final Agency
decision. Plaintiff has a ninth grade education, and past
work as a server, food preparation worker, and waitress.
Plaintiff was insured for disability benefits under Title II
until December 31, 2012. Generally, Plaintiff alleges
disability consisting of low back pain and a hearing
impairment that is worse in her right ear.
applied for Title II Disability Insurance Benefits on
December 11, 2012, and Title XVI Supplemental Security Income
on December 12, 2012. In both applications, Plaintiff alleged
disability beginning November 1, 2009. Plaintiff's
application was initially denied on February 21, 2013, after
which she timely requested a hearing before an Administrative
Law Judge (“ALJ”). On April 28, 2014, Plaintiff
appeared at a hearing before ALJ Robert Wright. On July 24,
2014, the ALJ issued a written decision finding Plaintiff not
disabled under the Social Security Act. (T. 11-27.) On
November 5, 2015, the Appeals Council denied Plaintiff's
request for review, making the ALJ's decision the final
decision of the Commissioner. (T. 1-3.)
The ALJ's Decision
in his decision, the ALJ made the following six findings of
fact and conclusions of law. (T. 13-21.) First, the ALJ found
that Plaintiff has not engaged in substantial gainful
activity since November 1, 2009, the alleged onset date. (T.
13.) Second, the ALJ found that Plaintiff's degenerative
disc disease of the lumbar spine is a severe impairment,
while her hearing impairment, knee pain, asthma, carpal
tunnel syndrome, depression, anxiety, and obesity are not
severe. (T. 13-14.) Third, the ALJ found that Plaintiff's
severe impairment does not meet or medically equal one of the
listed impairments in 20 C.F.R. § 404, Subpart P, App. 1
(the “Listings”). (T. 16.) More specifically, the
ALJ considered Listing 1.00 (musculoskeletal impairments).
(Id.) Fourth, the ALJ found that Plaintiff has the
residual functional capacity (“RFC”) to perform
semi-skilled work with the ability to sit four hours in an
eight-hour day, stand and walk four hours in an eight-hour
day with no work on ladders or scaffolding, no crouching or
crawling and only occasional stooping, kneeling, climbing,
working with moving machinery, exposure to temperature
extremes, dust or fumes, and she would need to change
position every hour.
(T. 16.) Fifth, the ALJ found that Plaintiff has past work as
a server, food preparation worker, and waitress, though the
ALJ also found that Plaintiff is unable to perform this past
work based on the restrictions in the RFC. (T. 20-21.) Sixth,
and finally, the ALJ determined that there are jobs that
exist in significant numbers in the national economy that
Plaintiff can perform, including telemarketer, customer
service representative, and information clerk. (T. 21-22.)
The Parties' Briefings on Their Cross-Motions
Plaintiff asserts two arguments in support of her motion for
judgment on the pleadings. First, Plaintiff argues that the
RFC determination was not supported by substantial evidence.
More specifically, Plaintiff argues that substantial evidence
did not support the ALJ's finding that Plaintiff could
perform semi-skilled work because the ALJ acknowledged that
Plaintiff only had a limited education. (Dkt. No. 11, at 3
[Pl. Mem. of Law].) As a corollary, Plaintiff also challenges
whether she would be able to perform the General Education
Development (“GED”) requirements of some of the
provided jobs based on her ninth grade education. (Dkt. No.
11, at 4-6 [Pl. Mem. of Law].) Second, Plaintiff argues that
the ALJ's conclusion at Step Five that ...