United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
by counsel, Calvin Thurman (“Plaintiff”)
instituted this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review
of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”)denying his
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). This Court has jurisdiction over the
matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
protectively filed applications for DIB and SSI on December
5, 2012, which were denied. (T.81-82, 85-100,
202-09).Plaintiff requested a hearing, which was
scheduled to be held via videoconference on October 24, 2014,
before administrative law judge Rosanne M. Dummer (“the
ALJ”). However, the hearing was postponed until March
16, 2015, at which time Plaintiff appeared with his attorney
and testified, as did impartial vocational expert Jacquelyn
Schabacker (“the VE”). (See T.40-67).
After the ALJ issued an unfavorable decision on March 20,
2015 (T.9-30), Plaintiff requested review by the Appeals
Council, which was denied on December 18, 2015, making the
ALJ's decision the Commissioner's final decision.
(T.1-4). This timely action followed.
parties have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court adopts and incorporates by reference
herein the undisputed and comprehensive factual summaries
contained in the parties' briefs. The record will be
discussed in more detail below as necessary to the resolution
of this appeal. For the reasons that follow, the
Commissioner's decision is affirmed.
followed the five-step procedure established by the
Commissioner for evaluating disability claims. See
20 C.F.R. §§ 404.1520, 416.920. At step one of the
sequential evaluation, the ALJ found that Plaintiff had not
engaged in substantial gainful activity since January 1,
2008, the alleged onset date. (T.14).
two, the ALJ found Plaintiff has the following
“severe” impairments: major depressive disorder;
anxiety disorder; hypothyroidism; and cocaine abuse, cannabis
abuse, and alcohol abuse, all in reported remission. At step
three, the ALJ determined that whether considered
individually or in combination, Plaintiff's severe
impairments did not meet or equal a listed impairment.
proceeding to step four, the ALJ assessed Plaintiff's
residual functional capacity (“RFC”) and
determined that he has the ability to perform medium work as
defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c),
except that he needs to avoid concentrated exposure to work
hazards, and, secondary to mental impairments, he can
understand, remember, and carry out instructions; sustain
attention for simple tasks for extended periods of two-hour
segments; tolerate brief and superficial contact with others,
and occasional brief and superficial contact with the public;
and adapt to changes as needed for routine, repetitive,
unskilled work. (T.16-23).
four, the ALJ found that Plaintiff could not perform his past
relevant work. (T.23).
five, the ALJ relied on the VE's testimony at the hearing
(T.60-66) regarding an individual of the same age, education,
and work experience as Plaintiff, who has the RFC assessed by
the ALJ, supra. The VE testified that such an
individual could perform representative occupations of
automobile detailer, dishwasher, general laborer, coffee
attendant, sorter, and laundry worker, all of which were at
the medium, unskilled level. In addition, the VE testified,
such an individual could perform representative occupations
of housekeeper/cleaner, photocopy machine operator, and
packager, all of which were unskilled, light-exertion work.
(T.63-64). The VE further testified that, even if the
hypothetical person were off-task for up to 10% of the time,
he could perform the same jobs. (T.66). Because there are
jobs that exist in significant numbers in the economy that
Plaintiff can perform, the ALJ entered a finding of
Failure by the ALJ to Develop the Record ...