United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, United States District Judge
by counsel, Richard Pintagro (“Plaintiff”)
instituted this action pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the
final decision of the Acting Commissioner of Social Security
(“the Commissioner”) denying his application for
Supplemental Security Income (“SSI”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
September 10, 2012, Plaintiff protectively filed an SSI
application, alleging a disability onset date of November 7,
2002, due to a traumatic ruptured disc, hypertension,
dyslipidemia, obstructive sleep apnea, and chronic low back
pain. (T.172-78, 194). This claim was denied initially on
December 4, 2012. A hearing was held by administrative law
judge Mark Solomon (“the ALJ”) on October 18,
2013, via videoconference. Plaintiff appeared with his
non-attorney representative and testified. The ALJ issued an
unfavorable decision on February 11, 2014, finding that
despite Plaintiff's severe impairments of lumbar disc
disease, obesity, and obstructive sleep apnea, Plaintiff has
the residual functional capacity (“RFC”) to
perform sedentary work with some additional limitations. The
ALJ's decision became the Commissioner's final
decision on April 8, 2015, when the Appeals Council denied
Plaintiff's request for review. Plaintiff then commenced
the Court are the parties' cross-motions for judgment on
the pleadings. The Court will discuss the record evidence
further below, as necessary to the resolution of the
parties' contentions. For the reasons discussed below,
the Commissioner's decision is affirmed.
RFC Unsupported by Substantial Evidence Due to Failure to
Properly Weigh Medical Consultant's Opinion
argues that the ALJ erred in his weighing of the RFC
questionnaire completed by State agency medical consultant
Dr. Walter Cobbs on February 15, 2013. (T.262-69). Plaintiff
further contends that the RFC assessment is not supported by
February 15, 2013, State agency medical consultant Dr. Walter
Cobbs provided an opinion based on his review of the
available medical records. (T.262-69). With regard to
Plaintiff' exertional limitations, Dr. Cobbs opined that
Plaintiff could occasionally lift and/or carry (including
upward pulling) 20 pounds, frequently lift and/or carry
(including upward pulling) 10 pounds, stand and/or walk (with
normal breaks) at least 2 hours in an 8-hour day, sit (with
normal breaks) about 6 hours in an 8-hour day, and had an
unlimited ability to push and/or pull (including operation of
hand/foot controls). (T.263). Dr. Cobbs cited the following
evidence in support of these limitations: MRI dated October
6, 2008, showing mild to moderate degenerative disc disease
(“DDD”) without spinal stenosis or nerve root
compression; a lumbar spine x-ray dated November 27, 2012,
showing mild to moderate DDD; and office notes from J.G.
Dahlie, M.D. (to whom Plaintiff apparently was referred by
Dr. Erika Connor) showing “limitation of lumbar forward
flexion to 20 deg[rees], but in multiple exams, DTR [deep
tendon reflexes], SLR [straight-leg raising], sensory intact;
toe and heel walk limited by back pain, gait slow, not
antalgic, no aid to ambulation, no limitation upper
extremities; may walk up to 4 hrs/8 hr day, unscheduled rest
approximately 10 min[utes] hourly, sit [sic]. Sit may take 5
min[ute] break to stretch, 1/hr.” (T.263-64).
found that Plaintiff has the RFC to perform sedentary work,
except that he is able to sit for 6 hours in an 8-hour
workday, and stand/walk for 2 hours in an 8-hour workday; can
lift or carry 10 lbs. occasionally and 5 lbs. frequently, can
never climb ropes, ladders, or scaffolds; [can] occasionally
(very little to 1/3d [sic] of the work day) climb
ramps/stairs; and occasionally balance, crawl, crouch, kneel
or stoop. In addition, he is able to perform work that does
not involve any exposure to unprotected heights, hazardous
machinery, weather extremes, or pulmonary irritants.
(T.14). The ALJ did not include any unscheduled rest breaks
in the RFC.
stated in his decision that Dr. Cobbs' RFC questionnaire
deserved “substantial weight” “except for
the limits regarding standing/walking.” (T.18).
According to Plaintiff, the ALJ failed to reconcile Dr.
Cobbs' report with the RFC by failing to include
unscheduled rest breaks. Plaintiff interprets Dr. Cobbs'
report as stating that he needs “unscheduled rest
approximately ten minutes ...