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Thurman v. Berryhill

United States District Court, W.D. New York

May 18, 2017

CALVIN THURMAN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         INTRODUCTION

         Represented 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”)[1]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).

         PROCEDURAL STATUS

         Plaintiff protectively filed applications for DIB and SSI on December 5, 2012, which were denied. (T.81-82, 85-100, 202-09).[2]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.

         The 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.

         THE ALJ'S DECISION

         The ALJ 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).

         At step 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. (T.14-15).

         Before 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), [3] 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).

         At step four, the ALJ found that Plaintiff could not perform his past relevant work. (T.23).

         At step 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 “not disabled.”

         DISCUSSION

         I. Failure by the ALJ to Develop the Record ...


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