United States District Court, W.D. New York
DECISION AND ORDER
G. LARIMER UNITED STATES DISTRICT JUDGE
appeals from a denial of disability benefits by the
Commissioner of Social Security (“the
Commissioner”). The action is one brought pursuant to
42 U.S.C. §405(g) to review the Commissioner's final
December 30, 2011, plaintiff filed an application for a
period of disability and disability insurance benefits under
Title II of the Social Security Act. Plaintiff alleged an
inability to work since February 16, 2006 (later amended to
December 1, 2013). (Dkt. #8 at 17). Her application was
initially denied. Plaintiff requested a hearing, which was
held July 8, 2014, via videoconference before Administrative
Law Judge (“ALJ”) Lisa B. Martin. Plaintiff
thereafter retained counsel, who requested a supplemental
hearing. A supplemental hearing was scheduled for August 29,
2014, but was prevented by what the ALJ described as
“technical difficulties.” (Dkt. #8 at 17). In
lieu of rescheduling the supplemental hearing,
plaintiff's representative agreed to submit
interrogatories to the vocational expert who had testified at
the initial hearing. The ALJ issued an unfavorable decision
on October 2, 2014, concluding that plaintiff was not
disabled under the Social Security Act. That decision became
the final decision of the Commissioner when the Appeals
Council denied review on May 15, 2016 (Dkt. #8 at 1-4).
Plaintiff now appeals.
plaintiff has moved pursuant to Fed. R. Civ. Proc. 12(c) for
judgment vacating the ALJ's decision and remanding the
matter for further proceedings, and the Commissioner has
cross moved for judgment dismissing the complaint. For the
reasons set forth below, the plaintiff's motion (Dkt.
#10) is denied, the Commissioner's cross motion (Dkt.
#12) is granted, and the complaint is dismissed.
with the five-step evaluation process for determining Social
Security disability claims is presumed. See 20 CFR
Commissioner's decision that plaintiff is not disabled
must be affirmed if it is supported by substantial evidence,
and if the ALJ has applied the correct legal standards.
See 42 U.S.C. §405(g); Machadio v.
Apfel, 276 F.3d 103, 108 (2d Cir.2002). Substantial
evidence is defined as “more than a mere scintilla. It
means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.”
Richardson v. Perales, 402 U.S. 389, 401 (1971).
“The Court carefully considers the whole record,
examining evidence from both sides ‘because an analysis
of the substantiality of the evidence must also include that
which detracts from its weight.'” Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (quoting
Quinones v. Chater, 117 F.3d 29, 33 (2d Cir.1997)).
Still, “it is not the function of a reviewing court to
decide de novo whether a claimant was disabled.”
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999).
“Where the Commissioner's decision rests on
adequate findings supported by evidence having rational
probative force, [this Court] will not substitute [its]
judgment for that of the Commissioner.” Veino v.
Barnhart, 312 F.3d 578, 586 (2d Cir.2002).
same level of deference is not owed to the Commissioner's
conclusions of law. See Townley v. Heckler, 748 F.2d
109, 112 (2d Cir.1984). This Court must independently
determine if the Commissioner's decision applied the
correct legal standards in determining that the plaintiff was
not disabled. “Failure to apply the correct legal
standards is grounds for reversal.” Townley,
748 F.2d at 112. Therefore, this Court first examines the
legal standards applied, and then, if the standards were
correctly applied, considers the substantiality of the
evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir.1987). See also Schaal v. Apfel, 134 F.3d 496,
504 (2d Cir.1998).
was born October 20, 1970, and was 43 years old on the
amended alleged onset date. (Dkt. #8 at 25, 71). She has a
high school education and completed two years of college.
(Dkt. #8 at 71). Her treatment records reflect a history of
asthma, chronic lumbar (low back) pain, depression,
hypothyroidism, attention deficit hyperactivity disorder
(“ADHD”), anxiety and substance abuse (in full
remission as of 2010). Plaintiff also claims that she has
Parkinson's disease, although the record does not
otherwise contain any evidence of such a diagnosis.
determined that the plaintiff was capable of performing light
work, with the following limitations: requiring a brief
opportunity to sit down (for one or two minutes) every hour,
no climbing of ladders, ropes or scaffolding, no more than
occasional climbing of ramps and stairs, and no more than
occasional balancing, stooping, kneeling, crouching and
crawling. Plaintiff must also avoid dangerous work hazards
such as unprotected or exposed machinery, concentrated
pulmonary irritants, and extreme heat, humidity and cold
temperatures. Plaintiff is further unable to tolerate
distractions or perform detailed decision-making, and is
accordingly limited to routine, simple tasks not requiring a
fast, assembly quota-type pace. (Dkt. #8 at 22). When
presented with this RFC,  vocational expert (“VE”)
Alyssa Smith testified that plaintiff could perform the
light, unskilled positions of price marker, collator operator
and garment sorter. (Dkt. #8 at 26).
first contends that the ALJ failed to sufficiently explain
the weight given to the opinions of three consultative
examiners, internist Dr. Harbinder Toor (Dkt. #8 at 540-43,
599-610), psychologist Dr. Yu-Ying Lin (Dkt. #8 at 535-39),
and psychologist Dr. Adam Brownfield (Dkt. #8 at 590-98), and
that the ALJ erred in giving similar weight to the latter two
opinions, even though they were inconsistent with one another
in some respects. The fact that the ALJ opted to give
“greater” weight to the opinion of Dr. Toor, who
examined plaintiff on two occasions with respect to her
physical RFC, and implicitly gave less weight to the opinions
of Dr. Lin and Dr. Brownfield, is not legal error. The ALJ
was entitled to separately weigh each of the available
opinions, and to adopt only those portions of the opinions
which were consistent with, and/or supported by, the other
evidence of record.
further claims that the ALJ failed to adequately explain why
he credited some portions of Dr. Toor's and Dr. Lin's
opinions, but not others. (For example, the ALJ rejected Dr.
Toor's opinion that plaintiff cannot stand for more than
30 minutes at a time or for a total of 4 hours in a day, and
Dr. Lin's opinion that plaintiff has “no”
ability to make appropriate decisions, relate adequately with
others, or handle stress.) Plaintiff alleges that even though
the ALJ purported to explain her parsing of those opinions by
referencing plaintiff's minimal treatment history,
unimpressive MRI, high score on a Global Assessment of
Functioning scale (indicating adequate mental health and
functioning), and activities of daily living, including
working part-time, the ALJ's explanation was factually
with respect to Dr. Toor's 30-minute restriction, the
Court notes that although the ALJ's decision describes an
RFC with the need for a “sit-down break” just
once every 60 minutes, the hypothetical question the ALJ
posed to the VE at the hearing did incorporate Dr.
Toor's more extensive restriction. The ALJ's
hypothetical described an individual who would need to
“briefly sit down as often as every 30 minutes
or change positions as often as every 30 minutes for
one or two minutes, [in addition to] typical work
breaks.” (Dkt. #8 at 80) (emphasis added). It was in
response to this question that the VE identified the three
positions upon which the ALJ's written decision relies in
its Step 5 finding. Id. at 81-82. Thus, to the
extent that the ALJ erred in not incorporating Dr. Toor's