United States District Court, W.D. New York
JAMES R. BRINK, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
by counsel, plaintiff James R. Brink
(“plaintiff”) brings this action pursuant to the
Social Security Act (the “Act”), seeking review
of the final decision of defendant the Acting Commissioner of
Social Security (the “Commissioner” or
“defendant”) denying his application for
supplemental security income (“SSI”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). Presently before the Court are the
parties' cross-motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, plaintiff's
motion is granted to the extent that this case is remanded to
the Commissioner for further administrative proceedings
consistent with this Decision and Order, and the
Commissioner's motion is denied.
protectively filed an application for SSI on December 30,
2008, which was denied. Administrative Transcript
(“T.”) 84, 117-20, 242-44. At plaintiff's
request, a hearing was held before administrative law judge
(“ALJ”) Robert T. Harvey on April 21, 2011. T.
44-82. In a decision dated May 23, 2011, ALJ Harvey found
that plaintiff was not disabled as defined in the Act and
denied his claim. T. 85-104. The Appeals Council granted
plaintiff's request for review and, in an order dated
October 19, 2011, remanded the case for further proceedings,
including consolidating the matter with plaintiff's
subsequent SSI application filed July 5, 2011. T. 105-10,
697-702, 778-92. A second administrative hearing was held on
December 5, 2012, before ALJ Robert C. Dorf. T. 598-623. ALJ
Dorf issued an unfavorable decision on January 3, 2013. T.
16-38. On September 9, 2014, the Appeals Council issued an
order denying plaintiff's request for review, thereby
rendering ALJ Dorf's decision the Commissioner's
final determination. T. 1-6. Plaintiff subsequently filed
The ALJ's Decision
one of the five-step sequential evaluation, see 20 C.F.R.
§§ 404.1520, 416.920, the ALJ determined that
plaintiff had not engaged in substantial gainful activity
since December 30, 2008, the alleged onset date. T. 21. At
step two, the ALJ found that plaintiff suffered from the
severe impairments of osteoarthritis and degenerative joint
disease of the right knee, status post multiple surgical
procedures to the right knee; chronic obstructive pulmonary
disease; history of one seizure; personality disorder; and
borderline cognitive functioning. Id. At step three,
the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of any listed impairment. T. 22.
proceeding to step four, the ALJ determined that, considering
all of plaintiff's impairments, plaintiff retained the
RFC to perform sedentary work as defined in 20 C.F.R. §
416.967(a), “with an option to vary sit/stand
positions, which can be accommodated during regularly
scheduled breaks in the workday.” T. 23. The ALJ went
on to state that “more specifically, ” plaintiff
had the RFC to sit for up to six hours and stand or walk for
up to two hours in an eight hour workday, with the ability to
alternate sit/stand positions during customary morning,
afternoon and lunch breaks; lift/carry objects weighing a
maximum of ten pounds; push/pull to his lifting carrying
capacity; in an environment that does not involve
concentrated exposure to respiratory irritants or work near
known hazards such as unprotected heights or dangerous
machinery. Id. The ALJ further determined that
plaintiff had the mental capacity, on a sustained basis, to
understand, remember, and carry out simple instructions; to
make simple work-related decisions; to respond appropriately
to others; and to deal with changes in a routine setting.
four, the ALJ found that plaintiff had no past relevant work.
T. 31. At step five, the ALJ concluded that, considering
plaintiff's age, education, work experience, and RFC,
there are jobs that exist in significant numbers in the
national economy that plaintiff can perform. Id.
Accordingly, the ALJ found plaintiff not disabled.
district court may set aside the Commissioner's
determination that a claimant is not disabled only if the
factual findings are not supported by “substantial
evidence” or if the decision is based on legal error.
42 U.S.C. § 405(g); see also Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'” Shaw v. Chater,
221 F.3d 126, 131 (2d Cir. 2000).
Failure to Properly Evaluate Medical Opinions of
first argues that the ALJ's RFC determination was
unsupported by substantial evidence because the ALJ purported
to accord “significant weight” to the opinions of
consultative physicians Dr. Balderman and Dr. Ryan, but
failed to incorporate the limitations to which they opined in
his RFC finding. Specifically, plaintiff argues that the ALJ
failed to incorporate (or explain why he did not incorporate)
Dr. Balderman's opinion that plaintiff had moderate
limitations in sitting and Dr. Ryan's opinion that
plaintiff had moderate limitations in learning new tasks,
relating adequately with others, and dealing with stress.
respect to Dr. Balderman, the Court finds that the ALJ's
RFC finding adequately accounted for a moderate limitation in
prolonged sitting. The ALJ expressly stated that plaintiff
would require customary morning, afternoon, and lunch breaks.
See Tompkins v. Colvin, 2015 WL 10382575, at *6
(W.D.N.Y. Dec. 23, 2015), report and recommendation
adopted, 2016 WL 792428 (W.D.N.Y. Mar. 1, 2016) (holding
that a “mild to moderate limitation in prolonged
sitting and standing is accommodated by the ALJ's
limitation to light work as well as normal work
breaks”); Burdick v. Astrue, 2013 WL 3713417,
at *7 (W.D.N.Y. July 12, 2013) (restriction on prolonged
sitting and standing was consistent with the full range of
sedentary work). Normal work breaks and meal periods split an
eight hour workday into approximately two hour periods.
See SSR 96-9p, 1996 WL 374185 at *6 (“In order
to perform a full range of sedentary work, an individual must
be able to remain in a seated position for approximately 6
hours of an 8-hour workday, with a morning ...