United States District Court, W.D. New York
KATHERINE A. DILORENZO, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
by counsel, Katherine A. Dilorenzo (“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 her
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 an application for DIB on August 29, 2011,
alleging that he was disabled commencing August 29, 2011, due
to degenerative disc disease, arthritis, nerve damage,
gastroparesis, depression, and vitamin
deficiencies. The applications were denied, and
Plaintiff requested a hearing, which was held on April 9,
2013, and July 30, 2013, before Administrative Law Judge
Gietel Reich (“the ALJ”). (T.31-51). Plaintiff
appeared with counsel at the July hearing and testified, but
the ALJ did not call any witnesses. The ALJ issued an
unfavorable decision (T.13-30) on August 14, 2013.
Appeals Council denied Plaintiff's request for review
(T.1-6) on August 27, 2014, making the ALJ's decision the
final decision of the Commissioner.
then timely commenced this action. 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
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, the
ALJ found that Plaintiff meets the insured status
requirements of the Act through December 31, 2015, and had
not engaged in substantial gainful activity since August 22,
2011, the alleged onset date.
two, the ALJ determined that Plaintiff has the following
severe impairments: fibromyalgia and cervicalgia, status
post-cervical fusion surgery, gastroparesis, and migraine
three, the ALJ found that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals the severity of one of the listed
Impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1.
proceeding to step four, the ALJ assessed Plaintiff as having
the residual functional capacity (“RFC”) to
perform less than the full range of sedentary work, except
that she is limited to lifting/carrying a maximum of ten
pounds at a time; sitting for approximately six hours in an
eight-hour day; standing/walking for approximately two hours
in an eight-hour day; and changing the position of her head
frequently, but not constantly.
four, the ALJ noted that Plaintiff was a
“younger” individual between the ages of 18 and
44, had at least a high school education, and had past
relevant work as a cook, server, radio producer, manager, and
dispatcher for emergency services. Because the exertional
requirements for each of these jobs exceeded the
less-than-sedentary RFC assigned to Plaintiff, she was unable
to perform her past relevant work.
five, the ALJ referred to Medical-Vocational Rule 201.28 and
found that the additional limitations contained in
Plaintiff's RFC have little or no effect on the
occupational base of unskilled sedentary work. A finding of
“not disabled” ...