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Pursey v. Berryhill

United States District Court, W.D. New York

November 2, 2017

PAMELA D. PURSEY Plaintiff,
v.
NANCY A. BERRYHILL, [1] Commissioner of Social Security, Defendant.

          LAW OFFICES OF KENNETH HILLER Attorneys for Plaintiff TIMOTHY HILLER, of Counsel

          JAMES P. KENNEDY ACTING UNITED STATES ATTORNEY Attorney for Defendant DAVID L. BROWN Assistant United States Attorney, of Counsel Federal Centre STEPHEN P. CONTE Regional Chief Counsel United States Social Security Administration Office of the General Counsel, of Counsel.

          DECISION AND ORDER

          LESLIE G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.

         JURISDICTION

         On May 17, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned. (Dkt. No. 19). The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed by Plaintiff on November 6, 2015 (Dkt. 13), and by Defendant on March 7, 2016 (Dkt 17). For the reasons discussed below, Plaintiff's motion is denied and the Commissioner's motion is granted.

         BACKGROUND and FACTS

         Plaintiff Pamela Pursey (“Plaintiff “) brings this action pursuant to the Social Security Act (“the Act”), seeking review of the Acting Commissioner of Social Security (“the Commissioner” or “defendant”) decision denying her application for disability benefits for Supplemental Security Income (“SSI”) benefits under Title II of the Act. Plaintiff, worked most recently as a dietary aide in an assisted living home (R. 54), until Plaintiff quit work after being hospitalized for an emotional breakdown on August 10, 2012. (R. 57).

         Plaintiff filed an application for SSI benefits on April 24, 2012 (R. 202), that was initially denied by Defendant on September 12, 2012, and, pursuant to Plaintiff's request filed on November 26, 2012 (R. 141), a hearing was held before Administrative Law Judge Bruce R. Mazzarella (“Mazzarella” or “the ALJ”), on April 23, 2013, in Buffalo, New York. (R. 47-103). Vocational expert Jay Steinbrenner (“Steinbrenner” or “the VE”), also appeared and testified at the hearing. Plaintiff, represented by Stephen Brooks, Esq. (“Brooks”), appeared and testified at the hearing. The ALJ's decision denying Plaintiff's claim was rendered on September 19, 2014. (R. 21-35). Plaintiff requested review by the Appeals Council, and the ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review on February 18, 2015. (R. 1-7). This action followed on April 20, 2015, with Plaintiff alleging that the ALJ erred by failing to find her disabled. (Doc. No. 1).

         On November 6, 2015, Plaintiff filed a motion for judgment on the pleadings (“Plaintiff's motion”), accompanied by a memorandum of law (Doc. No. 13) (“Plaintiff's Memorandum”). Defendant filed, on March 7, 2016, Defendant's motion for judgment on the pleadings (“Defendant's motion”), accompanied by a memorandum of law (Doc. No. 17) (“Defendant's Memorandum”). Plaintiff filed a reply to Defendant's motion on the pleadings on March 28, 2016, (“Plaintiff's Reply Memorandum”) (Doc. No. 19). Oral argument was deemed unnecessary.

         DISCUSSION

         A district court may set aside the Commissioner's determination that a claimant is not disabled if the factual findings are not supported by substantial evidence, or the decision is based on legal error. See 42 U.S.C. 405(g); 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.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000). At step one of the sequential evaluation, see 20 C.F.R. ' ' 404.1520, 416.920, the ALJ determined that Plaintiff had not engaged in substantial gainful activity since May 30, 2011, Plaintiff's alleged onset date of disability. (R. 21). At step two, the ALJ determined that Plaintiff suffered from the severe impairments of Guillain-Barre with peripheral neuropathy, sleep apnea, obesity, post-traumatic stress disorder (“PTSD”), bipolar disorder, generalized anxiety disorder, right arm lymphedema and asthma. (R. 23). At step three, the ALJ found that Plaintiff's impairments, did not meet or medically equal the criteria for disability under Appendix 1 of 20 C.F.R. Pt. 404, Subpt. P (“The Listing of Impairments”), specifically 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 1.02 (“§ 1.02") (Major dysfunction of a joint), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 3.03 (“§ 3.03") (Asthma), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 3.10 (“§ 3.10") (Sleep-related breathing disorders), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 11.14 (“§ 11.14") (Peripheral neuropathy), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 12.04 (“§ 12.04") (Affective disorders), 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, ' 12.06 (“' 12.06”) (Anxiety related disorders), and 20 C.F.R. Pt. 404, Subpt. P, Appendix 1, § 14.00 (“§ 14.00") (Immune system disorders). (R. 25). Plaintiff does not contest the ALJ's findings at steps one through three of the review process.

         Once an ALJ finds a disability claimant does not have a severe medically determinable physical or mental impairment, 20 C.F.R. § § 404.1520(a)(4)(ii), that significantly limits the claimant's physical and mental ability to do work activities, Berry, 675 F.2d at 467, and the claimant is not able, based solely on medical evidence, to meet the criteria established for an impairment listed under Appendix 1, the burden shifts to the Commissioner to show that despite the claimant's severe impairment, the claimant has the residual functional capacity to perform alternative work, 20 C.F.R. § 404.1520(a)(4)(iv), and prove that substantial gainful work exists that the claimant is able to perform in light of the claimant's physical capabilities, age, education, experience, and training. Parker, 626 F.2d 225 at 231. To make such a determination, the Commissioner must first show that the applicant's impairment or impairments are such that they nevertheless permit certain basic work activities essential for other employment opportunities. Decker v. Harris, 647 F.2d 291, 294 (2d Cir. 1981). Specifically, the Commissioner must demonstrate by substantial evidence the applicant's "residual functional capacity" with regard to the applicant's strength and "exertional capabilities." Id. An individual's exertional capability refers to the performance of "sedentary, " "light, " "medium, " "heavy, " and "very heavy" work. Decker, 647 F.2d at 294. In this case, the ALJ determined that Plaintiff had the residual functional capacity to perform light work. (R. 35).

         At step four, the ALJ assessed Plaintiff's residual functional capacity (“RFC”), and determined that Plaintiff had the residual functional capacity to perform light work. (R. 34). At step five, the VE determined that, considering Plaintiff's age, education, work experience, and residual functional capacity, Plaintiff would be able to perform her past relevant work as a housekeeper, small products assembler and telemarketer under 20 C.F.R. ' 404.1565, 404.965. (R. 35). The ALJ determined that Plaintiff was therefore not disabled. Id.

         ALJs are “entitled to weigh all of the evidence available to make an RFC finding that [i]s consistent with the record as a whole, ” and residual functional capacity assessments may not perfectly correspond with any individual medical opinion. See Matta v. Astrue, 508 Fed. App'x 53, 56 (2d Cir. 2013). “When determining a claimant's RFC, the ALJ is required to take the claimant's reports of pain and other limitations into account, but is not required to accept the claimant's subjective complaints without question; he may exercise ...


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