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Popovich v. Colvin

United States District Court, W.D. New York

June 16, 2017

DANIEL D. POPOVICH, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA United States District Judge.

         I. Introduction

         Represented by counsel, plaintiff Daniel D. Popovich(“plaintiff”) brings this action pursuant to Titles II and XVI of the Social Security Act (the “Act”), seeking review of the final decision of the Commissioner of Social Security (the “Commissioner” or “defendant”) denying his applications for disability insurance benefits (“DIB”) and 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, the Commissioner's motion is granted and plaintiff's motion is denied.

         II. Procedural History

         Plaintiff initially filed an application for DIB on October 7, 2011, and an application for SSI on October 21, 2011, alleging disability due to a heart condition, HIV infection, shingles, and extreme fatigue. Administrative Transcript (“T.”) 156-69, 199. Plaintiff's application was denied, and he requested a hearing before an administrative law judge (“ALJ”), which occurred on March 4, 2013, before ALJ David Lewandowski. T. 30-51, 74-95. On May 29, 2013, ALJ Lewandowski issued a decision in which he found plaintiff not disabled as defined in the Act. T. 15-24. The Appeals Council denied plaintiff's request for review on September 15, 2014, rendering ALJ Lewandowski's decision the final determination of the Commissioner. T. 1-5. This action followed.

         III. The ALJ's Decision

         Initially, the ALJ found that Plaintiff met the insured status requirements of the Act through December 31, 2014. T. 20. At step one of the five-step sequential evaluation, see 20 C.F.R. §§ 404.1520, 416.920, the ALJ found that plaintiff had not engaged in substantial gainful activity since October 1, 2011, the alleged onset date. Id. At step two, the ALJ found that plaintiff had the severe impairments of atrial fibrillation and HIV positive. Id. The ALJ further found that plaintiff's mood disorder was a non-severe impairment. Id. At step three, the ALJ found that plaintiff did not have an impairment or combination of impairments that met or medically equaled a listed impairment. T. 21.

         Before proceeding to step four, the ALJ found that plaintiff retained the residual functional capacity (“RFC”) to perform less than the full range of light work as defined in 20 CFR 404.1567(b) and 416.967(b) with the following limitations: cannot work around hazards including unprotected heights and dangerous machinery; is limited to simple instructions and tasks; is limited to simple decision-making; must work in small familiar groups; can have occasional interaction with others; and is limited to low stress jobs defined as no fast paced production work and no loud noise. T. 21-22. At step four, the ALJ found that plaintiff was unable to perform any past relevant work. T. 23. 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. T. 24. Accordingly, the ALJ found that plaintiff was not disabled.

         IV. Discussion

         A 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).

         Here, plaintiff makes the following arguments in favor of his motion for judgment on the pleadings: 1) the ALJ's decision was internally inconsistent regarding plaintiff's mental health; and 2) the ALJ had a duty to solicit a treating source opinion regarding plaintiff's exertional capabilities. For the reasons discussed below, the Court finds these arguments without merit.

         A. Assessment of Plaintiff's Mental Health

         As set forth above, in deciding plaintiff's claim, the ALJ determined at step two that plaintiff's mood disorder was a non-severe limitation. Nevertheless, the ALJ incorporated several mental health-related limitations in plaintiff's RFC, including limitations to simple tasks and decision making, working in small and familiar groups, occasional contact with others, and low stress jobs. Plaintiff argues that these findings are irreconcilably inconsistent. The Court disagrees.

         Under the Act, “impairments” are “anatomical, physiological, or psychological abnormalities . . . demonstrable by medically acceptable clinical and laboratory techniques.” 42 U.S.C. § 423(d)(3). An impairment is “severe” only if it “significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. §§ 404.1520(c), 416.920(c). By contrast, “[a]n impairment will be found non-severe if the limitations are mild or moderate.” Thogode v. Colvin, 2015 WL 5158733 at *7 (N.D.N.Y. Sept. 2, 2015). “A RFC ...


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