United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE
Jeffrey Crosby (“plaintiff”) brings this action
pursuant to Title II of the Social Security Act (the
“Act”), seeking review of the final decision of
the Commissioner of Social Security (“defendant”
or “the Commissioner”) denying his application
for social security disability insurance benefits
(“DIB”). Presently before the Court are the
parties' competing motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons set forth below, plaintiff's
motion is denied and defendant's motion is granted.
December 4, 2012, plaintiff filed an application for DIB,
alleging disability as of August 31, 2012. Administrative
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting
Commissioner of Social Security on January 23, 2017. The
Clerk of the Court is instructed to amend the caption of this
case pursuant to Federal Rule of Civil Procedure 25(d) to
reflect the substitution of Acting Commissioner Berryhill as
the defendant in this matter.
(“T.”) 109-10. Following the denial of his
application, a hearing was held at plaintiff's request on
August 20, 2014, before administrative law judge
("ALJ") Connor O'Brien, at which testimony was
given by plaintiff and a vocational expert. T. 37-74. The ALJ
issued a decision dated November 26, 2014, in which she
determined that plaintiff was not disabled as defined in the
Act. T. 17-33. The ALJ's decision became the final
determination of the Commission on March 15, 2016, when the
Appeals Council denied plaintiff's request for review. T.
1-5. Plaintiff subsequently filed the instant action.
The ALJ's Decision
the ALJ found that Plaintiff met the insured status
requirements of the Act through December 31, 2017. T. 22. At
step one of the five-step sequential evaluation, see
20 C.F.R. §§ 404.1520, 416.920, the ALJ determined
that plaintiff had not engaged in substantial gainful
activity since August 31, 2012, the alleged onset date.
Id. At step two, the ALJ found that plaintiff
suffered from the severe impairments of degenerative disc
disease of the lumbar spine, Schatzki's ring, depressive
disorder, and anxiety disorder. Id. At step three,
the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled the
severity of any listed impairment. T. 23-25.
proceeding to step four, the ALJ determined that, considering
all of plaintiff's impairments, plaintiff retained the
RFC to “perform light work as defined in 20 CFR
404.1567(b)” with the following limitations: sitting
for a total of four hours in an eight-hour workday; standing
for a total of four hours in an eight-hour workday; never
climbing ropes, ladders, or scaffolds; never balancing on
narrow, slippery, or moving surfaces; never bending to the
floor; occasionally crouching, climbing stairs, kneeling, and
crawling; performing only unskilled work; requiring a
sit/stand option that allows for a position change every 45
minutes for up to five minutes without leaving the
workstation; not maintaining an hourly, machine-driven,
assembly line production rate; and requiring up to three
short, unscheduled, less than five-minute breaks in addition
to the regularly scheduled breaks. T. 25. At step four, the
ALJ found that plaintiff was unable to perform any past
relevant work. T. 31. 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.
32. Accordingly, the ALJ found plaintiff 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).
The ALJ Properly Accounted for Plaintiff's Right Shoulder
contends that the Commissioner's decision was not
supported by substantial evidence because the ALJ failed to
account for his impairment of right shoulder tendinopathy in
her RFC determination. In support of this contention,
plaintiff argues that (1) the ALJ should have included
limitations based on this impairment in her RFC determination
and (2) additional evidence submitted to the Appeals Council
compelled the conclusion that the impairment was severe.
These arguments are unavailing.
medical evidence of record shows that plaintiff first
complained of right shoulder pain in March 2014, a little
over a year and a half after his alleged disability onset
date. T. 347. On March 20, 2014, plaintiff was seen by Dr.
Jennifer Kessler and reported a two week history of right
shoulder pain. T. 443. Dr. Kessler assessed plaintiff with
shoulder tendonitis and instructed him to avoid lifting
weights “for at least a few weeks” and to use ice
and tylenol for pain relief. Id. Dr. Kessler
informed plaintiff that his tendonitis would resolve on its
own with “time and rest.” Id. Plaintiff
reported to an urgent care clinic on April 9, 2014, and noted
that his pain had “minimally improved” since
being seen three weeks earlier. Id. Plaintiff had a
full range of motion in his right shoulder, but had
significant pain with active and passive abduction past 90
degrees. T. 348. He was referred to physical therapy, and
instructed to take tylenol for pain. T. 347-48. Plaintiff
underwent physical therapy (see T. 330-37), which
improved his pain to 3-4 out of 10 with no deep shoulder
pain. T. 332. Plaintiff was seen on June 20, 2014, and on
physical examination had no postural or anatomic
abnormalities, was non-tender to palpitation, and had intact
and symmetric strength in his upper extremities. T. 362.
Plaintiff showed “some pain” with right shoulder
abduction greater than 90 degrees and with external rotation
of the arm. T. 362-63. He was referred to an orthopedist for
possible steroid injections and instructed to continue
conservative measures in the interim (rest, no heavy
lifting/exacerbating movements, tylenol ...