United States District Court, W.D. New York
PAMELA D. PURSEY Plaintiff,
NANCY A. BERRYHILL,  Commissioner of Social Security, Defendant.
OFFICES OF KENNETH HILLER Attorneys for Plaintiff TIMOTHY
HILLER, of Counsel
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
G. FOSCHIO UNITED STATES MAGISTRATE JUDGE.
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.
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).
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).
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.
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
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).
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
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 ...