United States District Court, N.D. New York
CHRISTOPHER CADIN, ESQ., Legal Services of CNY, Attorney for
LENARD KERSHNER, Special Asst. U.S. Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
T. BAXTER, United States Magistrate Judge.
matter was referred to me, for all proceedings and entry of a
final judgment, pursuant to the Social Security Pilot
Program, N.D.N.Y.G.O. # 18, in accordance with the provisions
of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73, N.D.N.Y. Local
Rule 73.1 and the consent of the parties. (Dkt. Nos. 2, 4,
about August 29, 2012, plaintiff protectively filed an
application for Disability Insurance Benefits
(“DIB”) and for Supplemental Security Income
(“SSI”), alleging disability beginning December
31, 2010. (Transcript (“T”) 146-52, 153-58, 168).
Plaintiff's applications were denied initially on
December 5, 2012, and plaintiff requested a hearing. (T.
77-84, 85). The video hearing was held on February 10, 2014
before Administrative Law Judge (“ALJ”) John M.
Lischak, during which plaintiff testified. (T. 35-63). The
ALJ denied plaintiff's applications in a decision dated
August 11, 2014 (T. 17-30), which became the final decision
of the Commissioner when the Appeals Council denied
plaintiff's request for review on November 9, 2015. (T.
GENERALLY APPLICABLE LAW
considered disabled, a plaintiff seeking disability insurance
benefits or SSI disability benefits must establish that he is
“unable 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 twelve months . . . .” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Commissioner uses a five-step process, set forth in 20 C.F.R.
sections 404.1520 and 416.920, to evaluate disability
insurance and SSI disability claims.
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 meets or equals the
criteria of an impairment 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 . . . . 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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982); see 20 C.F.R. §§ 404.1520, 416.920.
The plaintiff has the burden of establishing disability at
the first four steps. However, if the plaintiff establishes
that her impairment prevents him from performing her past
work, the burden then shifts to the Commissioner to prove the
final step. Id.
Scope of Review
reviewing a final decision of the Commissioner, a court must
determine whether the correct legal standards were applied
and whether substantial evidence supported the decision.
Selian v. Astrue, 708 F.3d at 417; Brault v.
Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir.
2012); 42 U.S.C. § 405(g)). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of
evidence scattered throughout the administrative record.
Id. However, this standard is a very deferential
standard of review “ - even more so than the
‘clearly erroneous standard.'”
Brault, 683 F.3d at 448.
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 on behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a
reviewing court may not substitute its interpretation of the
administrative record for that of the Commissioner, if the
record contains substantial support for the ALJ's
decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
is not required to explicitly analyze every piece of
conflicting evidence in the record. See, e.g., Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are
unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose' evidence in the
record that supports his conclusions.” Cruz v.
Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004);
Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112,
at *6 (W.D.N.Y. Dec. 6, 2010).
counsel states that he incorporates by reference the summary
of the procedural history and the “statement of
facts” in plaintiff's brief, “with the
exception of any arguments, inferences, or
conclusions.” (Def.'s Br. at 1-2) (Dkt. No. 19).
Defense counsel further incorporates the procedural history
and facts as provided in the ALJ's opinion. (Id.
at 2). Rather than reciting all the medical and testimonial
evidence at the outset, the court will discuss the relevant
details below, as necessary to address the issues raised by
THE ALJ's DECISION
finding that plaintiff had not engaged in substantial gainful
activity from the alleged date of onset to the time of the
hearing, the ALJ found at step two of the disability
analysis, that plaintiff had the following severe
impairments: (1) “residuals status post work injury of
the low back with herniated discs at several levels and
radiculopathy, ” and (2) morbid obesity. (T. 20-24). In
addition, the ALJ found that plaintiff's finger injury,
neck problems, knee pain, and mental impairment were not
“severe” within the meaning of the regulations.
(T. 23-24). The ALJ also noted that the non-severe physical
impairments were not expected to last for a period of twelve
months or more at the requisite level of severity.
three of the sequential evaluation, the ALJ found that
plaintiff's severe impairments did not meet or equal the
severity of a Listed Impairment, notwithstanding
plaintiff's argument to the contrary in a letter
submitted prior to the hearing. (T. 24-25, 126-29).
Specifically, the ALJ considered Listing 1.04 (Disorders of
the Spine). (Id.) (citing 20 C.F.R. Pt. 404, Subpt.
P, App. 1 § 1.04) (“Listing 1.04").
four, the ALJ found that plaintiff had the RFC to perform a
“limited range of sedentary work.” (T. 25).
Plaintiff's limitations included frequently lifting and
carrying up to ten pounds and occasionally lifting and
carrying up to fifty pounds. (T. 25). The ALJ found that
plaintiff could stand for a total of thirty minutes at one
time without interruption, and he could walk a total of five
minutes at one time without interruption. (T. 25-26).
Plaintiff could sit for a “total of six hours in an
eight hour workday” and could stand and walk for a
total of one hour each in an eight hour workday. (T. 26). The
ALJ found that plaintiff could occasionally reach overhead
and push/pull with his right and left hands, he could
frequently reach in all other planes, and he could handle,
finger, and feel with both hands. (Id.) Plaintiff
could frequently operate foot controls with both feet, could
occasionally climb stairs and ramps, stoop, kneel and crouch
and could frequently balance. (Id.) However, he
could never crawl or climb ladders or scaffolds.
of limitations that would prevent plaintiff from performing a
full range of sedentary work, the ALJ sent an Interrogatory
to a Vocational Expert (“VE”), outlining two
hypothetical questions based upon RFC evaluations submitted
by Physical Therapist (“PT”) Randy Lehman and
Medical Expert, Orthopedic Surgeon Malcolm Brahms. (T. 29-30,
227-33). The VE responded in a report, dated May 21, 2014,
that based on the RFC evaluation, and under either
hypothetical question proposed by the ALJ, plaintiff could
not perform his previous work. (T. 229, 231). However,
plaintiff could still perform alternative work that existed
in significant numbers in the national economy. (T. 229, 232).
Based on the VE's answers, the ALJ found that plaintiff
was not under a disability at any time through the date of
his decision. (T. 29-30).
ISSUES IN CONTENTION
advances the following arguments:
(1) Plaintiff's impairments meet or equal the severity of
Listing 1.04. (Pl.'s Br. ...