United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL J. ROEMER United States Magistrate Judge
to 28 U.S.C. §636(c), the parties have consented to
disposition of this case by a United States Magistrate Judge.
(Dkt. No. 13).
Hector Acevedo brings this action pursuant to 42 U.S.C.
§405(g) seeking judicial review of the final decision of
the Commissioner of Social Security denying him Supplemental
Security Income Benefits (“SSI”) under the Social
Security Act (the “Act”). Both parties have moved
for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure. For the following reasons,
Acevedo's motion (Dkt. No. 9) is denied and the
Commissioner's motion (Dkt. No. 12) is granted.
March 12, 2013, Acevedo filed an application for SSI alleging
disability since September 1, 2012 due to diabetes,
gastroesophageal reflux disease (“GERD”),
hypertension, hypercholesterolemia, diabetic polyneuropathy,
and a gunshot wound to the left leg. (See Tr.
176-86, 243-48). Acevedo suffered the gunshot wound in 2009
during a robbery of the tattoo shop he owned and operated.
(Tr. 132-33). Acevedo continued to operate the tattoo shop
until 2011. (Id.). Acevedo has not worked since
2012, when he worked at a chocolate factory for part of one
day and also earned money picking up and selling scrap metal.
(Tr. 134-35, 161). Acevedo's SSI application was denied
on June 4, 2013 (Tr. 176-86, 191-94), after which he
requested a hearing before an Administrative Law Judge (Tr.
195). On December 4, 2014, Acevedo, represented by counsel,
appeared before Administrative Law Judge Stephen Cordovani
(the “ALJ”) for a hearing. (Tr. 125-74). On March
27, 2015, the ALJ issued his decision denying Acevedo's
SSI claim. (Tr. 106-24). Acevedo requested review by the
Appeals Council (Tr. 103), but on September 14, 2016, the
Appeals Council denied Acevedo's request, making the
ALJ's decision the final decision of the Commissioner
(Tr. 1-7). This action followed.
Scope of Judicial Review
Court's review of the Commissioner's decision is
deferential. Under the Act, the Commissioner's factual
determinations “shall be conclusive” so long as
they are “supported by substantial evidence, ” 42
U.S.C. §405(g), that is, supported by “such
relevant evidence as a reasonable mind might accept as
adequate to support [the] conclusion, ” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (internal quotation
marks and citation omitted). “The substantial evidence
test applies not only to findings on basic evidentiary facts,
but also to inferences and conclusions drawn from the
facts.” Smith v. Colvin, 17 F.Supp.3d 260, 264
(W.D.N.Y. 2014). “Where the Commissioner's decision
rests on adequate findings supported by evidence having
rational probative force, ” the Court may “not
substitute [its] judgment for that of the
Commissioner.” Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002). Thus, the Court's task is to ask
“‘whether the record, read as a whole, yields
such evidence as would allow a reasonable mind to accept the
conclusions reached' by the Commissioner.”
Silvers v. Colvin, 67 F.Supp.3d 570, 574 (W.D.N.Y.
2014) (quoting Sample v. Schweiker, 694 F.2d 639,
642 (9th Cir. 1982)).
related rules follow from the Act's standard of review.
The first is that “[i]t is the function of the
[Commissioner], not [the Court], to resolve evidentiary
conflicts and to appraise the credibility of witnesses,
including the claimant.” Carroll v. Sec'y of
Health & Human Servs., 705 F.2d 638, 642 (2d Cir.
1983). The second rule is that “[g]enuine conflicts in
the medical evidence are for the Commissioner to
resolve.” Veino, 312 F.3d at 588. While the
applicable standard of review is deferential, this does not
mean that the Commissioner's decision is presumptively
correct. The Commissioner's decision is, as described
above, subject to remand or reversal if the factual
conclusions on which it is based are not supported by
substantial evidence. Further, the Commissioner's factual
conclusions, even if supported by substantial evidence, must
be applied to the correct legal standard. Kohler v.
Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Failure to
apply the correct legal standard is reversible error.
Standards for Determining “Disability” Under
“disability” is an inability “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). The
Commissioner may find the claimant disabled “only if
his physical or mental impairment or impairments are 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.”
Id. §1382c(a)(3)(B). The Commissioner must make
these determinations based on “objective medical facts,
diagnoses or medical opinions based on these facts,
subjective evidence of pain or disability, and . . . [the
claimant's] educational background, age, and work
experience.” Dumas v. Schweiker, 712 F.2d
1545, 1550 (2d Cir. 1983) (first alteration in original)
(quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir.
guide the assessment of whether a claimant is disabled, the
Commissioner has promulgated a “five-step sequential
evaluation process.” 20 C.F.R. §416.920(a)(4).
First, the Commissioner determines whether the claimant is
“working” and whether that work “is
substantial gainful activity.” Id.
§416.920(b). If the claimant is engaged in substantial
gainful activity, the claimant is “not disabled
regardless of [his or her] medical condition or . . . age,
education, and work experience.” Id. Second,
if the claimant is not engaged in substantial gainful
activity, the Commissioner asks whether the claimant has a
“severe impairment.” Id.
§416.920(c). To make this determination, the
Commissioner asks whether the claimant has “any
impairment or combination of impairments which significantly
limits [the claimant's] physical or mental ability to do
basic work activities.” Id. As with the first
step, if the claimant does not have a severe impairment, he
or she is not disabled regardless of any other factors or
considerations. Id. Third, if the claimant does have
a severe impairment, the Commissioner asks two additional
questions: first, whether that severe impairment meets the
Act's duration requirement, and second, whether the
severe impairment is either listed in Appendix 1 to subpart P
of part 404 of the Commissioner's regulations (the
“Listings”) or is “equal to” an
impairment listed in Appendix 1. Id.
§416.920(d). If the claimant satisfies both requirements
of step three, the Commissioner will find that he or she is
disabled without regard to his or her age, education, and
work experience. Id.
claimant does not have the severe impairment required by step
three, the Commissioner's analysis proceeds to steps four
and five. Before doing so, the Commissioner must
“assess and make a finding about [the claimant's]
residual functional capacity [“RFC”] based on all
the relevant medical and other evidence” in the record.
Id. §416.920(e). RFC “is the most [the
claimant] can still do despite [his or her]
limitations.” Id. §416.945(a)(1). The
Commissioner's assessment of the claimant's RFC is
then applied at steps four and five. At step four, the
Commissioner “compare[s] [the] residual functional
capacity assessment . . . with the physical and mental
demands of [the claimant's] past relevant work.”
Id. §416.920(f). If, based on that comparison,
the claimant is able to perform his or her past relevant
work, the Commissioner will find that the claimant is not
disabled within the meaning of the Act. Id. Finally,
if the claimant cannot perform his or her past relevant work
or does not have any past relevant work, then at the fifth
step the Commissioner considers whether, based on the
claimant's RFC, age, education, and work experience, the
claimant “can make an adjustment to other work.”
Id. §416.920(g)(1). If the claimant can adjust
to other work, he or she is not disabled. Id. If,
however, the claimant cannot adjust to other work, he or she
is disabled within the meaning of the Act. Id.
burden through steps one through four described above rests
on the claimant. If the claimant carries his burden through
the first four steps, “the burden then shifts to the
[Commissioner] to show there is other gainful work in the