United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, United States District Judge.
by counsel, Karen Christine Ross (“Plaintiff”)
instituted this action pursuant to Titles II and XVI of the
Social Security Act (“the Act”), seeking review
of the final decision of the Acting Commissioner of Social
Security (“the Commissioner”)denying her
application for Disability Insurance Benefits
(“DIB”) and Supplemental Security Income
(“SSI”). The Court has jurisdiction over the
matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).
protectively filed for DIB and SSI on August 7, 2013,
alleging disability beginning September 1, 2010. The
applications were denied on October 23, 2013, and Plaintiff
requested a hearing. Administrative Law Judge Rosanne M.
Dummer (“the ALJ”) conducted a hearing on
December 4, 2014, via videoconference. Plaintiff appeared
with her attorney and testified. Stephen P. Davis, an
impartial vocational expert (“the VE”), also
testified at the hearing, via videoconference telephone.
December 4, 2014, the ALJ sent the objective record evidence
by query with interrogatories to Stuart Gitlow, M.D., MPH
Board Certified in General Medicine and Addiction and
Forensic Psychiatry. Dr. Gitlow's response and
professional qualifications were sent to Plaintiff's
attorney, who did not provide any response. After the
hearing, the ALJ also received into the record treatment
notes from March of 2014, to September of 2014 (pulmonary
treatment), and from November 2013, to September 2014 (Unity
January 26, 2015, the ALJ issued an unfavorable decision.
(T.14-38). The Appeals Council denied Plaintiff's
request for review on July 14, 2016, making the ALJ's
decision the final decision of the Commissioner. Plaintiff
then timely commenced this action.
The ALJ's Decision
outset, the ALJ noted that Plaintiff previously had filed two
sets of applications for DIB and SSI, the last of which was
denied at the initial level on July 19, 2012, and no further
review was sought. Since Plaintiff had alleged an onset date
of disability within the previously adjudicated time period,
the ALJ found there was an implied request for reopening.
However, the ALJ found no basis to reopen the prior denials,
which were final and binding through July 19, 2012, meaning
that the relevant period commenced July 20, 2012. (T.17).
then found that Plaintiff meets the insured status
requirements of the Act through December 31, 2015, and had
not engaged in substantial gainful activity since September
two, the ALJ determined that Plaintiff has the following
severe impairments: bipolar disorder, and alcohol dependence
and marijuana abuse in reported remission. The ALJ found that
Plaintiff's asthma appeared to stable on medication, and
was not severe. The ALJ noted that Plaintiff also reported
elbow pain, bilaterally; x-rays taken in December 2011,
showed spurring of the right and left elbow and degenerative
changes of the left elbow. The ALJ observed that Plaintiff
reported she could not lift five pounds with either arm,
“though no evidence indicates significant
musculoskeletal treatment or that follow[-]up was
required.” Therefore, the ALJ concluded that
Plaintiff's elbow impairment was not severe. The ALJ
noted that Plaintiff reported right leg muscle weakness, but
it did “not appear related to a medically determinable
impairment[, ]” and was not severe. In addition, the
ALJ considered notations in the record by social workers
mentioning a psychotic disorder. Since the assessment of a
psychotic disorder was noted by Plaintiff's providers in
connection with her substance use, the ALJ considered the
reported psychotic symptoms in connection with
Plaintiff's severe impairments above.
three, the ALJ determined that the severity of
Plaintiff's mental impairments, considered singly and in
combination, do not meet or medically equal the criteria of
any listed impairment, see 20 C.F.R. § Pt. 404,
Subpt. P, App. 1 (eff. Jan. 2, 2015, to May 17, 2015). The
ALJ particularly considered Listings 12.04 (affective
disorders) and 12.09 (substance addiction disorders).
to proceeding to step four, the ALJ assessed Plaintiff as
having the residual functional capacity (“RFC”)
to perform a range of medium work as defined in 20 C.F.R.
§ 404.1567(c). Plaintiff could lift/carry about 50
pounds occasionally and 25 pounds frequently; sit about six
of eight hours and stand/walk about six of eight hours;
should avoid concentrated exposure to pulmonary irritants;
should avoid concentrated exposure to work hazards; is able
to understand, remember, and carry out simple instructions;
can sustain attention for simple tasks for extended periods
of two-hour segments in an eight-hour day; is able to
tolerate brief and superficial contact with others; and is
able to adapt to changes for simple, routine, and repetitive
type tasks. (T.21).
four, the ALJ found that Plaintiff cannot perform any of her
past relevant work as a (1) certified nurse assistant
(Dictionary of Occupational Titles (“DOT”) code:
355.674-014) medium level (performed at heavy), Specific
Vocational Preparation (“SVP”) 4, semi-skilled;
(2) day-care provider (DOT code: 301.677-010) medium level,
SVP 3, semi-skilled; (3) teacher's aide (DOT code:
249.367-074) light level (performed at medium), SVP 3,
semi-skilled; or (4) package sealer (DOT code: 920.685-074)
medium level, SVP 2, unskilled. The demands of all these jobs
exceeded Plaintiff's RFC. (T.32).
five, the ALJ noted that Plaintiff was 50 years-old, defined
as an individual closely approaching advanced age, with a
limited (eleventh grade) education. (T.32). The ALJ found
that transferability of job skills was not material to
disability determination because the Medical-Vocational Rules
(“the Grids”) supported a finding ...