United States District Court, N.D. New York
OLINSKY LAW GROUP Attorney for Plaintiff HOWARD D. OLINSKY,
SECURITY ADMINISTRATION Attorney for Defendant LAUREN E.
MEMORANDUM-DECISION AND ORDER
J. STEWART United States Magistrate Judge
action, Plaintiff Frank Besser, Sr., moves, pursuant to 42
U.S.C. § 405(g), for review of a decision by the Acting
Commissioner of Social Security denying his application for
Disability Insurance Benefits (“DIB”) and Period
of Disability (“POD”). Based upon the following
discussion, the Acting Commissioner's decision denying
Social Security benefits is affirmed.
born on April 23, 1958, filed an application for DIB and POD
on June 14, 2013, claiming an inability to work as of
February 9, 2013, due to a variety of ailments, including
chronic obstructive pulmonary disease (“COPD”),
obstructive sleep apnea, knee arthritis, pinched nerve in the
neck, and herniated disc. Dkt. No. 8, Admin. Tr. [hereinafter
“Tr.”] at pp. 13, 52-53, 61, 63, 125-28, 138,
& 141. Besser completed ninth grade and has past relevant
work as a security guard. Id. at pp. 142 & 143.
disability application was denied on initial review.
Id. at pp. 61 & 64-75. On August 21, 2014, a
Hearing was held before Administrative Law Judge
(“ALJ”) Carl E. Stephan; Besser, who was
accompanied by an attorney, was the only witness to testify
during the Hearing. Id. at pp. 26-51. On August 30,
2014, ALJ Stephan sent a vocational interrogatory to Peter
Manzi, a Vocational Expert (“VE”). Id.
at pp. 190-95. VE Manzi responded to the interrogatory on
September 15, 2014. Id. at pp. 196-99.
Plaintiff's representative also sent a vocational
interrogatory to the VE, id. at pp. 203-05, and VE
Manzi responded to that interrogatory on October 29, 2014,
id. at pp. 212-14.
February 6, 2015, ALJ Stephan issued an unfavorable decision
finding that Besser was not disabled. Id. at pp.
10-25. On May 13, 2016, the Appeals Council concluded there
was no basis to review the ALJ's decision, thus rendering
the ALJ's decision the final determination of the Acting
Commissioner. Id. at pp. 1-4. Exhausting all of his
options for review through the Social Security
Administration's tribunals, Plaintiff now brings this
Standard of Review
42 U.S.C. § 405(g), the proper standard of review for
this Court is not to employ a de novo review, but
rather to discern whether substantial evidence supports the
Commissioner's findings and that the correct legal
standards have been applied. See Rivera v. Sullivan,
923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan,
965 F.Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter
alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir. 1987)). Succinctly defined, substantial evidence is
“more than a mere scintilla” of evidence
scattered throughout the administrative record; rather, it is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Consol. Edison Co. of New York v. N.L.R.B., 305 U.S.
197, 229 (1938); see also Williams ex. rel. Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To
determine on appeal whether an [Administrative Law
Judge's] findings are supported by substantial evidence,
a reviewing court considers the whole record, examining the
evidence from both sides, because an analysis of the
substantiality of the evidence must also include that which
detracts from its weight.” Williams ex. rel.
Williams v. Bowen, 859 F.2d at 258.
must set forth the crucial factors supporting the decision
with sufficient specificity. Ferraris v. Heckler,
728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's
findings are supported by substantial evidence, the court may
not interject its interpretation of the administrative
record. Williams ex rel. Williams v. Bowen, 859 F.2d
at 258; 42 U.S.C. § 405(g). However, where the weight of
the evidence does not meet the requirement for substantial
evidence or a reasonable basis for doubt exists as to whether
correct legal principles were applied, the ALJ's decision
may not be affirmed. Johnson v. Bowen, 817 F.2d at
Determination of Disability
considered disabled within the meaning of the Social Security
Act, a plaintiff must establish an “inability to engage
in any substantial gainful activity by reason of any
medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can
be expected to last for a continuous period of not less than
12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore,
the claimant's physical or mental impairments must be of
such severity as to prevent engagement in any kind of
substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
determining whether a claimant is disabled, the Commissioner
follows a five-step analysis set forth in the Social Security
Administration Regulations. 20 C.F.R. § 404.1520. At
Step One, the Commissioner “considers whether the
claimant is currently engaged in gainful activity.”
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982). If the claimant is engaged in substantial gainful
activity, he or she is not disabled and the inquiry ends. 20
C.F.R. § 404.1520(b). If the claimant is not engaged in
substantial gainful activity, the Commissioner proceeds to
Step Two and assesses whether the claimant suffers from a
severe impairment that significantly limits his or her
physical or mental ability to do basic work activities.
Id. at § 404.1520(c). If the claimant suffers
from a severe impairment, the Commissioner considers at Step
Three whether such impairment(s) meets or equals an
impairment listed in Appendix 1, in Part 404, Subpart P of
the Regulations. Id. at § 404.1520(d). The
Commissioner makes this assessment without considering
vocational factors such as age, education, and work
experience. Berry v. Schweiker, 675 F.2d at 467.
Where the claimant has such an impairment the inquiry ceases
as he or she is presumed to be disabled and unable to perform
substantial gainful activity. Id. If the
claimant's impairment(s) does not meet or equal the
listed impairments, the Commissioner proceeds to Step Four
and considers whether the claimant has the residual
functional capacity (“RFC”) to perform his or her
past relevant work despite the existence of severe
impairments. 20 C.F.R. § 404.1520(e). If the claimant
cannot perform his or her past work, then at Step Five, the
Commissioner considers whether the claimant can perform any
other work available in the national economy. Berry v.
Schweiker, 675 F.2d at 467; 20 C.F.R. §
the burden of proof lies with the claimant to show that his
or her impairment(s) prevents a return to previous employment
(Steps One through Four). Berry v. Schweiker, 675
F.2d at 467. If the claimant meets that burden, the burden
then shifts to the Commissioner at Step Five to establish,
with specific reference to medical evidence, that the
claimant's physical and/or mental impairment(s) are not
of such severity as to prevent him or her from performing
work that is available within the national economy.
Id.; 42 U.S.C. § 423(d)(2)(A); see also
White v. Sec'y of Health and Human Servs., 910 F.2d
64, 65 (2d Cir. 1990). In making this showing at Step Five,
the claimant's RFC must be considered along with other
vocational factors such as age, education, past work
experience, and transferability of skills. 20 C.F.R. §
404.1520(f); see also New York v. Sullivan, 906 F.2d
910, 913 (2d Cir. 1990).
ALJ Stephan's Findings
noted above, Besser appeared and testified at the ALJ
Hearing. Tr. at pp. 26-51. In addition to such testimony, the
ALJ had Besser's medical records consisting of treatment
reports and opinions from ...