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Dilorenzo v. Colvin

United States District Court, W.D. New York

June 15, 2017

KATHERINE A. DILORENZO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         INTRODUCTION

         Represented 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”)[1]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).

         PROCEDURAL STATUS

         Plaintiff 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.[2] 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.

         The 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.

         Plaintiff 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 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, 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.

         At step two, the ALJ determined that Plaintiff has the following severe impairments: fibromyalgia and cervicalgia, status post-cervical fusion surgery, gastroparesis, and migraine headaches.

         At step 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.

         Before 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.

         At step 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.

         At step 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” ...


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