United States District Court, N.D. New York
OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. Counsel for
SOCIAL SECURITY ADMIN. KATHRYN S. POLLACK, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant
MEMORANDUM-DECISION AND ORDER
William B. Mitchell Carter, U.S. 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. General Order No. 18, and 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. 12, 13.)
before the Court, in this Social Security action filed by
Mary Ellen Kenyon (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or
“the Commissioner”) pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), are the parties'
cross- motions for judgment on the pleadings. (Dkt. Nos. 9,
10.) For the reasons set forth below, it is ordered that
Plaintiff's motion is denied and Defendant's motion
was born in 1966. (T. 112.) She received her GED. (T. 227.)
Generally, Plaintiff's alleged disability consists of
fibromyalgia, left knee impairment, carpal tunnel syndrome
(“CTS”), memory loss, edema, bi-polar disorder,
and anxiety. (T. 112.) Her date last insured is March 31,
2013. (T. 111.) Her alleged disability onset date is July 26,
2012. (T. 112.) She previously worked as a licensed practical
nurse and cashier. (T. 227.)
December 24, 2012, Plaintiff applied for a period of
disability and disability insurance benefits under Title II
of the Social Security Act. (T. 111.) Plaintiff's
application was initially denied, after which she timely
requested a hearing before an Administrative Law Judge
(“the ALJ”). On July 30, 2014, Plaintiff appeared
before the ALJ, F. Patrick Flanagan. (T. 73-110.) On October
28, 2014, ALJ Flanagan issued a written decision finding
Plaintiff not disabled under the Social Security Act. (T.
17-37.) On January 8, 2016, the Appeals Council
(“AC”) denied Plaintiff's request for review,
rendering the ALJ's decision the final decision of the
Commissioner. (T.1-6.) Thereafter, Plaintiff timely sought
judicial review in this Court.
The ALJ's Decision
in his decision, the ALJ made the following findings of fact
and conclusions of law. (T. 22-32.) First, the ALJ found that
Plaintiff met the insured status requirements through March
31, 2013 and Plaintiff had not engaged in substantial gainful
activity since July 26, 2012. (T. 22.) Second, the ALJ found
that Plaintiff had the severe impairments of fibromyalgia,
anxiety disorder, and affective disorder. (T. 22.)
the ALJ found that Plaintiff did not have an impairment that
meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T.
24-25.) Fourth, the ALJ found that Plaintiff had the residual
functional capacity (“RFC”) to:
lift and/or carry 20 pounds occasionally, ten pounds
frequently, sit for six hours in an eight-hour day, and stand
and/or walk for six hours in an eight hour day. [Plaintiff]
should avoid working in cold temperatures, below 32 degrees.
She is able to occasionally balance, stoop, kneel, crouch,
and crawl. [Plaintiff] is able to understand, remember and
carry our simple instructions and tasks. She is able to
tolerate no more than occasional changes in routine and
occasional decision-making. She is able to accept
instructions from supervisors, relate to coworkers, and deal
superficially with the public. She is not able to perform
fast-paced production tasks.
(T. 26.) Fifth, the ALJ determined that Plaintiff was
incapable of performing her past relevant work; however,
there were jobs that existed in significant numbers in the
national economy Plaintiff could perform. (T. 30-32.)
THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION
makes four separate arguments in support of her motion for
judgment on the pleadings. First, Plaintiff argues the ALJ
erred at step two in assessing the severity of
Plaintiff's impairments. (Dkt. No. 9 at 9-11 [Pl.'s
Mem. of Law].) Second, Plaintiff argues the RFC determination
is not supported by substantial evidence. (Id. at
11-14.) Third, Plaintiff argues the credibility determination
is not supported by substantial evidence. (Id. at
15-16.) Fourth, and lastly, Plaintiff argues the ALJ's
step five determination is not supported by substantial
evidence. (Id. at 17.)
response, Defendant makes four arguments. First, Defendant
argues the ALJ properly considered Plaintiff's
impairments at step two. (Dkt. No. 10 at 5-7 [Def.'s Mem.
of Law].) Second, Defendant argues the ALJ's RFC finding
is supported by substantial evidence. (Id. at 7-14.)
Third, Defendant argues the ALJ properly considered
Plaintiff's subjective statements. (Id. at
14-18.) Fourth, and lastly, Defendant argues the ALJ's
step five finding is supported by substantial evidence.
(Id. at 18-19.)
RELEVANT LEGAL STANDARD
Standard of Review
reviewing a denial of disability benefits may not determine
de novo whether an individual is disabled. See 42
U.S.C. §§ 405(g), 1383(c)(3); Wagner v.
Sec'y of Health & Human Servs., 906 F.2d 856,
860 (2d Cir. 1990). Rather, the Commissioner's
determination will only be reversed if the correct legal
standards were not applied, or it was not supported by
substantial evidence. See Johnson v. Bowen, 817 F.2d
983, 986 (2d Cir. 1987) (“Where there is a reasonable
basis for doubt whether the ALJ applied correct legal
principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable
risk that a claimant will be deprived of the right to have
her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d
41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d
23, 27 (2d Cir. 1979).
evidence” is evidence that amounts to “more than
a mere scintilla, ” and has been defined as “such
relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971).
Where evidence is deemed susceptible to more than one
rational interpretation, the Commissioner's conclusion
must be upheld. See Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
determine on appeal whether the ALJ's findings are
supported by substantial evidence, a reviewing court
considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the
evidence must also include that which detracts ...