United States District Court, W.D. New York
DANIEL D. POPOVICH, Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA United States District Judge.
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.
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.
The ALJ's Decision
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.
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.
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).
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.
Assessment of Plaintiff's Mental Health
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
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 ...