United States District Court, N.D. New York
R. DOLSON, ESQ., for Plaintiff
MICHELLE L. CHRIST, Special Asst. U.S. Attorney for Defendant
MEMORANDUM-DECISION AND ORDER
T. BAXTER, 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. 4, 5).
October 15, 2012, plaintiff protectively filed an application
for Supplemental Security Income (“SSI”) and an
application for Disability Insurance Benefits
(“DIB”), each alleging disability beginning
October 13, 2010. (Administrative Transcript
(“T”) at 190-91). The applications were denied
initially on March 19, 2013. (T. 110-13, 114-17). Plaintiff
requested a hearing before an Administrative Law Judge
(“ALJ”), which was held on July 30,
2013. (T. 27-51). On October 7, 2013, ALJ Marie
Greener found plaintiff was not disabled. (T. 13-21). The
ALJ's decision became the Commissioner's final
decision when the Appeals Council denied plaintiff's
request for review on May 28, 2014. (T. 1-3).
appealed the Commissioner's final decision to the United
States District Court for the Northern District of New York,
and on August 14, 2014, the Court reversed the
Commissioner's decision by consent of the parties and
ordered the plaintiff's case remanded for further
proceedings. (T. 1015-19). On October 28, 2014, the Appeals
Council remanded the action to ALJ Greener with instructions
for further proceedings. (T. 1020-25). ALJ Greener held a new
hearing on April 6, 2015, at which plaintiff and Vocational
Expert (“VE”) David Festa testified. (T. 944-87).
On June 4, 2015, ALJ Greener found that the plaintiff was not
disabled. (T. 893-903). The ALJ's decision became the
final decision of the Commissioner when the Appeals Council
denied plaintiff's request for review of ALJ
Greener's decision on September 19, 2016. (T. 883-86).
GENERALLY APPLICABLE LAW
considered disabled, a plaintiff seeking disability insurance
benefits or SSI disability benefits must establish that he is
“unable 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 twelve months . . . .” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
Commissioner uses a five-step process, set forth in 20 C.F.R.
sections 404.1520 and 416.920, to evaluate disability
insurance and SSI disability claims.
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is
not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the
third inquiry is whether, based solely on medical evidence,
the claimant has an impairment which meets or equals the
criteria of an impairment listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner ] will consider him disabled without
considering vocational factors such as age, education, and
work experience . . . . Assuming the claimant does not have a
listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work
which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982); see 20 C.F.R. §§ 404.1520, 416.920.
The plaintiff has the burden of establishing disability at
the first four steps. However, if the plaintiff establishes
that her impairment prevents her from performing her past
work, the burden then shifts to the Commissioner to prove the
final step. Id.
Scope of Review
reviewing a final decision of the Commissioner, a court must
determine whether the correct legal standards were applied
and whether substantial evidence supported the decision.
Selian v. Astrue, 708 F.3d at 417; Brault v.
Soc. Sec. Admin, Comm'r, 683 F.3d 443, 448 (2d Cir.
2012); 42 U.S.C. § 405(g)). Substantial evidence is
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of
evidence scattered throughout the administrative record.
Id. However, this standard is a very deferential
standard of review “ - even more so than the
‘clearly erroneous standard.'”
Brault, 683 F.3d at 448.
determine on appeal whether an ALJ'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 on behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a
reviewing court may not substitute its interpretation of the
administrative record for that of the Commissioner, if the
record contains substantial support for the ALJ's
decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
is not required to explicitly analyze every piece of
conflicting evidence in the record. See, e.g., Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are
unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose' evidence in the
record that supports his conclusions.” Cruz v.
Barnhart, 343 F.Supp.2d 218, 224 (S.D.N.Y. 2004);
Fuller v. Astrue, No. 09-CV-6279, 2010 WL 5072112,
at *6 (W.D.N.Y. Dec. 6, 2010).
was 52 years old at the time of the most recent hearing
before ALJ Greener. (T. 949). He is 5'7" tall, and
at the time of the hearing, weighed approximately 245 pounds.
(Id.) Plaintiff lived with his sister.
(Id.) Plaintiff is a high school graduate, but did
not attend college. (T. 950). His past relevant work was as a
supervisor for a waste management company. (Id.) His
work involved teaching other employees how the system worked
and how to properly recycle materials. (Id.)
Plaintiff testified that occasionally, he would have to lift
more than 20 pounds, but he could alternate sitting and
standing. (T. 951-52). Plaintiff testified that he could sit
down and watch the other employees work. (T. 952). Plaintiff
worked at this job for approximately three years. (T. 951).
stated that he could not perform his past relevant work
because it would bother his back. (T. 952). Although he could
sit down when he wanted to, he was also responsible for
walking around to each station to make sure the other
employees were performing their jobs correctly.
(Id.) Plaintiff also described the jobs that he
performed prior to the waste management supervisor. (T.
953-56). Plaintiff worked as a baker and a crew leader at
Dunkin Donuts, a hardwood floor installer and refinisher, and
a metal cutter for Morris Manufacturing. (T. 954-56). Each of
these occupations contained some function that plaintiff was
incapable of performing at the time of the hearing.
(Id.) In addition to having lifting requirements
that exceeded plaintiff's current ability, the metal
cutter job would be too “much strain on [his]
breath.” (T. 956). Plaintiff testified that he quickly
became short of breath. (Id.) Later during the
hearing, plaintiff testified that his waste management job
required him to walk up and down steps, which he would be
unable to do because he would be out of breath. (T. 968).
Plaintiff stated that he would “run out” of
breath in about six steps. (T. 969). The Dunkin Donuts job
was too strenuous because plaintiff was responsible for
putting all the bagels and donuts up on shelves, and his
current condition would force him to stop too often to be
able to complete the work. (Id.) Plaintiff testified
that he could not do the Morris Manufacturing job due to the
chemicals triggering his breathing problems. (Id.)
then questioned plaintiff at length about his
“shortness of breath.” (T. 957-59). Plaintiff
stated that this condition was getting worse. (T. 957). The
ALJ asked plaintiff about the medication that he took for his
breathing problem. (T. 958). Plaintiff testified that he used
four inhalers. (T. 956). Plaintiff mentioned inhalers,
Albuterol and Spiriva, in addition to a capsule and another
“little puffer.” (T. 958, 973). Plaintiff
testified that his shortness of breath was triggered by
walking, sitting too long, and lifting. (Id.)
then testified that he was going to Syracuse Orthopedic
Specialists (“SOS”) for his back pain. (T. 959).
Plaintiff stated that the physical therapy, aquatic therapy,
and nerve block injections were not successful in lessening
the pain. (T. 959-60) He did receive some relief by using a
Transcutaneous Electrical Nerve Stimulation
(“TENS”) Unit. (Id.) Plaintiff stated
that the TENS Unit relaxed him and relieved the pain for a
little while, but when he took the unit off, the pain came
right back. (T. 960). Plaintiff also testified that he took
“a lot of pills” for his back, his gout, and his
diabetes. (T. 960-61).
testified that any activity could make his back hurt, and
that he was unable to play basketball or even walk around the
block without pain. (T. 961). Plaintiff also stated that he
could not sit or stand too long or walk too far. (T. 962).
The ALJ noticed that plaintiff was using a cane, and
plaintiff stated that he had been using the cane since he
quit working. (Id.) The plaintiff testified that he
still drank alcohol “occasionally, ” but was not
receiving treatment for any psychological disorder or mental
stated that he spent his days at home watching DVDs. (T.
963). He could cook “little things” and went out
with his sister to buy groceries, but did not carry any of
the bags. (Id.) Although plaintiff stated that he
did not have “trouble” cooking, he stated that he
alternated between sitting and standing when he cooks. (T.
965). Plaintiff stated that he could only stand for 10 or 15
minutes before he had to sit down and rest. (Id.) If
he had to chop anything, he sat down to do it. (Id.)
Plaintiff testified that he only spent a total of 45 minutes
cooking. (Id.) Plaintiff visited friends if they
came and pick him up, and he played a lot of chess and
watched movies with his friends. (T. 964).
testified that after about 10 or 15 minutes of doing
anything, he had to sit down, relax, and sometimes, put on
his TENS Unit. (T. 966). He used the TENS Unit every night,
and he took it off when he went to bed. (Id.)
Plaintiff testified that he could only sit for a total of 15
to 20 minutes at a time, then he had to get up, and try to
“walk it off a little bit, ” before he could sit
back down. (T. 967). The “whole process” took
about 10 minutes. His most comfortable position was laying on
his side, but he testified that he did not lie down all day
because he could “always get up and just move
around” if he got uncomfortable. (Id.)
Plaintiff testified that he still smoked about three
cigarettes per day. (T. 967-68).
testified that he used his cane at all times, and he needed
it to maintain his balance while standing. (T. 970). He
testified that he even went to the hospital with his cane.
(Id.) Plaintiff stated that his doctor gave him a
new cane when he was at the hospital, and his knees buckled
“and almost gave out.” (Id.) Plaintiff
testified that he could shower, but that it was a
“slower process.” (Id.) Plaintiff kept
his shoes tied and used a long shoe horn to put them on
because he could not bend at the waist due to the pain in his
stated that he did not lift anything over 10 pounds, and that
even a gallon of milk was too heavy for him to lift. (T.
971). Plaintiff stated that if something were on the counter,
he could move it from one side to the other. He could reach
over his head, but he could not lift anything over his head.
(Id.) Plaintiff's gout flares up every four
months, but as long as he took his pills, he would be back to
normal within a day. (T. 972-73).
testified that he had “good” and
“bad” days. (T. 975). On “good” days,
he tried to push himself to walk a little further, but on
“really bad” days, he just stays in the house.
(T. 976). Plaintiff stated that he had “bad” days
twice per week. (Id.) Plaintiff then stated that he
really did not stay in bed all day even on a bad day.
(Id.) Plaintiff would get up and walk around the
house because if he lay down too long, his back would start
also heard the testimony of VE David Festa. (T. 977-87). The
VE asked plaintiff various questions about his former work to
clarify plaintiff's duties at those jobs. (T. 977-80).
The ALJ then asked her first hypothetical question, assuming
that plaintiff could perform the full range of light work,
but was limited by a “mental” disorder, such that
he could only perform “simple” decision-making,
and have only short interactions with supervisors,
co-workers, or the public. (T. 981). The VE was further asked
to assume that the individual could work in proximity to
others, but his tasks should not require him to work
“in conjunction” with others, and should involve
working with objects, rather than people. (Id.)
Based on the plaintiff's testimony, the physical and
mental requirements of his former occupations, and the
ALJ's hypothetical, the VE opined that plaintiff could
not perform any of his past relevant work. (Id.)
then asked a second hypothetical question, adding the
following information to the original hypothetical question:
he asked the VE to assume an individual who was
years old, with a high school education, and the same past
relevant work as the plaintiff. He repeated the rest of the
hypothetical above, and asked the VE whether there would be
“any unskilled occupation [that] such an individual
could perform.” (T. 982). The VE testified that there
would be three jobs available - a routing clerk, a checker,
and a racker. (Id.) The ALJ then added that this
individual must have “routine” daily tasks which
do not significantly change in pace or location. (T. 983).
The VE stated that this additional limitations would not
affect the individual's ability to perform the three
above-mentioned jobs. (Id.)
attorney asked the VE if the jobs that he listed would be
precluded if the individual required a cane to stand or walk.
(T. 984). The VE testified that there would be no
“light” work jobs that would encompass the
additional limitation. However, there would be sedentary jobs
that the individual would be able to perform. (Id.)
The available sedentary jobs for such an individual would be
- surveillance system monitor, waxer, and stuffer.
(Id.) The VE also testified that his opinion with
respect to the availability of sedentary work would not
change if the individual were limited to “no
bending” at the waist or reaching below the knees. (T.
986-87). The VE stated that sedentary jobs did not require
“bending, lifting, pick up.” (T. 987). However,
those sedentary jobs would not be available if the individual
were further restricted to “occasional” reaching.