United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
by counsel, Heisa Rivera(“plaintiff”) has brought
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
(“defendant” or “the Commissioner”)
denying her application for Supplemental Security Income
(“SSI”). This Court has jurisdiction over the
matter pursuant to 42 U.S.C. § 405(g). 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. For the reasons set forth below,
plaintiff's motion is denied and defendant's motion
December 15, 2011, plaintiff protectively filed an
application for SSI. Administrative Transcript
(“T.”) 73. Plaintiff's claim was initially
denied, and she timely requested a hearing before an
administrative law judge (“ALJ”). T. 74-78. ALJ
Curtis Axelson held a hearing on October 21, 2013, and
November 7, 2013, at which plaintiff was represented by
attorney Kelly Laga. T. 37-66. On January 9, 2014, ALJ
Axelson issued a decision in which he found plaintiff not
disabled. T. 13-34. Plaintiff's request for Appeals
Council review was denied on April 14, 2015, making the
ALJ's decision the final decision of the Commissioner. T.
1-6. Plaintiff subsequently commenced the instant action.
The ALJ's Decision
one of the five-step sequential evaluation, see 20
C.F.R. §§ 404.1520, 416.920, the ALJ found that
plaintiff had not engaged in substantial gainful activity
since December 15, 2011, the alleged onset date. T. 21. At
step two, the ALJ found that plaintiff had the severe
impairments of depression, posttraumatic stress disorder
(“PTSD”), learning disorder, and asthma and the
non-severe impairments of diabetes, hypertension, and
hypothyroidism. T. 21-23. At step three, the ALJ found that
plaintiff did not have an impairment or combination of
impairments that met or medically equaled a listed
impairment. T. 23. Before proceeding to step four, the ALJ
found that plaintiff retained the residual functional
capacity (“RFC”) to perform a full range of work
at all exertional levels, with the following non-exertional
limitations: is limited to work involving unskilled, routine,
repetitive tasks and limited concentration, and is limited to
environments without excessive environmental irritants. T.
25. At step four, the ALJ found that plaintiff had no past
relevant work. T. 32. At step five, the ALJ found that,
considering plaintiff's age, education, work experience,
and RFC, there are jobs that exist in significant numbers in
the national economy that plaintiff could perform. T. 33.
Accordingly, the ALJ found that plaintiff was not disabled as
defined in the Act. Id.
Scope of Review
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 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) (quotation omitted). “Where the
Commissioner's decision rests on adequate findings
supported by evidence having rational probative force, [the
district court] will not substitute [its] judgment for that
of the Commissioner.” Veino v. Barnhart, 312
F.3d 578, 586 (2d Cir. 2002). This deferential standard is
not applied to the Commissioner's application of the law,
and the district court must independently determine whether
the Commissioner's decision applied the correct legal
standards in determining that the claimant was not disabled.
Townley v. Heckler, 748 F.2d 109, 112 (2d Cir.
requests the Court to remand this matter for further
administrative proceedings, arguing that: (1) the ALJ failed
to properly take into account her illiteracy; (2) the ALJ
failed to properly evaluate the impact of plaintiff's
asthma on her ability to work; (3) the ALJ failed to properly
evaluate the impact of plaintiff's obesity on her RFC;
(4) the ALJ failed to properly evaluate the impact of
plaintiff's visual impairment on her ability to work; and
(5) the ALJ failed to properly consider the combined effects
of plaintiff's severe and non-severe impairments. In
response, the Commissioner requests the Court to uphold her
determination that plaintiff is not disabled, arguing that it
was supported by substantial evidence and free from legal
error. For the reasons discussed below and based on a review
of the record evidence, the Court finds that the
Commissioner's determination that plaintiff is not
disabled is supported by substantial evidence and is not
subject to remand.
Consideration of Plaintiff's Illiteracy
was born and raised in Puerto Rico and is Spanish speaking.
It is undisputed that she has only a second grade education
and is unable to read or write in either Spanish or English.
Plaintiff further claims that she is unable to speak any
English, although, as the ALJ noted in his decision, there is
evidence in the record indicating that she has some degree of
English language capability. See T. 30. The ALJ
expressly noted in his decision that plaintiff is illiterate
(T. 32), and the Commissioner does not dispute that
argues that, because she is illiterate, it was impermissible
for the ALJ to rely on the Medical-Vocational Guidelines (the
“Grids”) in determining that she was not
disabled. She contends that the Dictionary of Occupational
Titles (the “DOT”), of which the
Commissioner's regulations take administrative notice,
provides that all the jobs identified therein require the
ability to read 95-120 words per minute, recognize 2, 500 two
and three syllable words, and print simple sentences, and
that she lacks any such ability. Accordingly, she argues that
the ALJ ...