United States District Court, N.D. New York
LACHMAN, GORTON LAW FIRM, Counsel for Plaintiff PETER A.
SOCIAL SECURITY ADMIN. KRISTINA D. COHN, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant
MEMORANDUM-DECISION AND ORDER
WILLIAM B. MITCHELL CARTER, U.S. MAGISTRATE JUDGE.
matter was referred to me, for all proceedings and entry of a
final judgment, pursuant to the Social Security Pilot
Program, N.D.N.Y. General Order No. 18, and in accordance
with the provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P.
73, N.D.N.Y. Local Rule 73.1 and the consent of the parties.
(Dkt. Nos. 13, 15.).
before the Court, in this Social Security action filed by
Barbara Brown (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or
“the Commissioner”) pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), are the parties'
cross- motions for judgment on the pleadings and
Plaintiff's reply brief. (Dkt. Nos. 9, 10, 11.) For the
reasons set forth below, Plaintiff's motion be granted,
to the extent it seeks remand under Sentence Four of 42
U.S.C. § 405(g), and Defendant's motion is denied.
was born in 1970. (T. 262.) She completed college. (T. 268.)
Generally, Plaintiff's alleged disability consists of
fibromyalgia, depression, anxiety, post-traumatic stress
disorder (“PTSD”), asthma, back pain, neck pain,
traumatic brain injury, post-concussion disorder,
degenerative disc disease, gastroesophageal reflux disease
(“GERD”), and swelling. (T. 267.) Her alleged
disability onset date is December 13, 2012. (T.
241.) Her date last insured is December 31,
2016. (T. 263.) She previously worked as a data entry clerk,
lab technician/cook, licensed practical nurse
(“LPN”), and medical assistant. (T. 34-36, 269.)
January 22, 2013, Plaintiff applied for a period of
Disability Insurance Benefits (“SSD”) under Title
II, and Supplemental Security Income (“SSI”)
under Title XVI, of the Social Security Act. (T. 262.)
Plaintiff's applications were initially denied, after
which she timely requested a hearing before an Administrative
Law Judge (“the ALJ”). On September 24, 2014,
Plaintiff appeared before the ALJ, Elizabeth W. Koennecke.
(T. 31-52.) ALJ Koennecke held a supplemental hearing on
February 4, 2015. (T. 53-61.)
February 10, 2015, ALJ Koennecke issued a written decision
finding Plaintiff not disabled under the Social Security Act.
(T. 7-28.) On July 14, 2016, the Appeals Council
(“AC”) denied Plaintiff's request for review,
rendering the ALJ's decision the final decision of the
Commissioner. (T. 1-6.) Thereafter, Plaintiff timely sought
judicial review in this Court.
The ALJ's Decision
in her decision, the ALJ made the following five findings of
fact and conclusions of law. (T. 13-22.) First, the ALJ found
that Plaintiff met the insured status requirements through
December 31, 2016 and Plaintiff had not engaged in
substantial gainful activity since December 13, 2012. (T.
13.) Second, the ALJ found that Plaintiff had the severe
impairments of obesity, fibromyalgia, and minimal
degenerative joint disease of cervical and lumbar spine. (T.
13-16.) Third, the ALJ found that Plaintiff did not have an
impairment that meets or medically equals one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P,
Appendix. 1. (T. 16.) Fourth, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) to
lift any weight up to three hours per day, frequently lift
and/or carry less than ten pounds, sit for six hours out of
an eight hour workday, and stand and/or walk for two hours
out of an eight hour workday. (Id.) Fifth, the ALJ
determined that Plaintiff was capable of performing her past
relevant work as a data entry clerk. (T. 20.)
THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION
makes essentially four separate arguments in support of her
motion for judgment on the pleadings. First, Plaintiff argues
the ALJ erred in failing to find that Plaintiff's
concussion syndrome was a severe condition and erred in
failing to consider or find any limitations therefrom. (Dkt.
No. 9 at 13-16 [Pl.'s Mem. of Law].) Second, Plaintiff
argues that ALJ substituted her own medical opinion for that
of Plaintiff's treating sources in formulating her RFC
determination. (Id. at 16-21.) Third, Plaintiff
argues the AC failed to consider newly submitted evidence and
the ALJ improperly weighed the medical evidence in the record
at the time of the hearing. (Id. at 21-22.) Fourth,
and lastly, Plaintiff argues she cannot perform her past
relevant work and the step five determination is not
supported by substantial evidence. (Id. at 22-24.)
response, Defendant makes four arguments. First, Defendant
argues the ALJ did not err in her step two determination.
(Dkt. No. 10 at 5-10 [Def.'s Mem. of Law].) Second,
Defendant argues in determining Plaintiff's RFC, the ALJ
properly evaluated the medical evidence of record.
(Id. at 10-17.) Third, Defendant argues the ALJ
properly found that Plaintiff could perform her past work as
a data entry clerk. (Id. at 17-19.) Fourth,
Defendant argues the ALJ properly relied on the
Medical-Vocational Guidelines and vocational expert
(“VE”) testimony at step five. (Id. at
Plaintiff's Reply Brief
filed a reply brief in which she reinforces the arguments
made in her initial brief. (Dkt. No. 11.)
RELEVANT LEGAL STANDARD