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Burgard v. Berryhill

United States District Court, W.D. New York

December 14, 2017

SCOTT BURGARD, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Represented by counsel, Scott Burgard (“Plaintiff”) brings this action pursuant to Title II of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security[1](“Defendant” or “the Commissioner”) denying his application for disability insurance benefits (“DIB”).

         II. Procedural History

         2 On January 3, 2012, Plaintiff, then forty-nine years-old, filed for DIB, alleging disability beginning July 15, 2011, when a motorcycle struck him as he walked, resulting in muscle, ligament and fascia disorders; anxiety-related disorder (functional nonpsychotic); head trauma; depression; a chronic anterior cruciate ligament (“ACL”) tear in his knee; vision problems in his left eye; broken teeth; and leg, hip, knee and foot pain. (T. 40-42, 46-47, 50, 63, 125-128, 143).[2] Plaintiff's application was denied on June 26, 2012 (T. 67-74), and he timely requested a hearing before an administrative law judge (“ALJ”). ALJ Curtis Axelsen held a hearing on August 1, 2013 (T. 33-56), and, on December 2, 2013, issued a decision in which he found Plaintiff was not disabled as defined in the Act. (T. 14-32). On February 12, 2015, the Appeals Council denied Plaintiff's request for review, leaving the ALJ's decision as the final agency decision. (T. 1-6). This action followed.

         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. The Court assumes the parties' familiarity with the facts of this case as set forth in the record and will not repeat them except as necessary. For the reasons set forth below, Plaintiff's motion is denied, and Defendant's motion is granted.

         III. The ALJ's Decision

         Initially, the ALJ found that Plaintiff met the insured status requirements of the Act through June 30, 2015. (T. 19). At step one of the five-step sequential evaluation, see 20 C.F.R. § 404.1520, the ALJ found that Plaintiff had not engaged in substantial gainful activity since July 15, 2011, the alleged onset date. (Id.). At step two, the ALJ found that Plaintiff had the severe impairments of meniscal and ACL tears of the left knee, Lisfranc injury to the left foot, and dysthymic 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 a listed impairment. (T. 20-21).

         Before proceeding to step four, the ALJ found that Plaintiff retained the residual functional capacity (“RFC”) to perform the full range of sedentary work, as defined in 20 C.F.R. § 404.1567(a), during the period from July 15, 2011 (the day of the motorcycle accident) through November 14, 2012 (two-months status post-arthroscopic surgery on his left knee), except he was limited to two- and three-step tasks with occasional contact with the public and supervisors. (T. 21-26). The ALJ found that medical improvement occurred as of November 14, 2012, see 20 C.F.R. § 404.1594(b)(1). As of that date, the ALJ found, Plaintiff had the RFC to perform the full range of light work, as defined in 20 C.F.R. § 404.1567(b), except he is limited to performing two- and three-step tasks with occasional contact with the public and supervisors. (Id.). At step four, the ALJ found that Plaintiff was unable to perform any past relevant work. (T. 26). At step five, the ALJ found, without consulting a vocational expert (“VE”), that considering Plaintiff's age, education, work experience, and RFC, jobs exist in significant numbers in the national economy that Plaintiff can perform. (Id.). At this step, the ALJ also found that because Plaintiff “was limited to sedentary work from June 15, 2012[, the day he turned fifty-years-old and was therefore closely approaching advanced age, ] through November 14, 2012, classifying him as disabled by the Medical-Vocational Rules, ” thereafter, “his condition improved[, ] and he was no longer disabled as of November 14, 2012.” (T. 26). Thus, the ALJ found that Plaintiff was not disabled. (T. 27).

         IV. Scope of Review

         A 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 deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).

         V. Discussion

         Plaintiff makes the following arguments in support of his motion for judgment on the pleadings: (1) the ALJ erred in failing to incorporate his own findings into his RFC assessment; (2) based on those findings, testimony of a VE was required; and (3) the ALJ erred in finding that medical improvement occurred.

         A. ...


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