United States District Court, N.D. New York
OFFICES OF STEVEN R. DOLSON COUNSEL FOR PLAINTIFF
SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL -
REGION II COUNSEL FOR DEFENDANT
R. DOLSON, ESQ. HASEEB FATMI, ESQ.
MEMORANDUM- DECISION AND ORDER
CHRISTIAN F. HUMMEL, UNITED STATES MAGISTRATE JUDGE
before the Court, in this Social Security action filed by
plaintiff IshmealFrazer against the Commissioner of Social
Security pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3), are Plaintiff's motion for judgment on the
pleadings and Defendant's motion for judgment on the
pleadings. Dkt. Nos. 10, 12. For the reasons set forth below,
Plaintiff's motion for judgment on the pleadings is
denied and Defendant's motion for judgment on the
pleadings is granted. The Commissioner's decision denying
Plaintiff's disability benefits is affirmed, and
Plaintiff's Complaint is dismissed.
was born in 1988, making him twenty-four years old at the
alleged onset date and twenty-six years old at the date of
the ALJ's decision. T. 204. Plaintiff reported obtaining an
Associate's degree in information technology and, at the
time of the hearing, was working part-time toward a
Bachelor's degree in biology. Id. at 77-78.
Plaintiff has past work as a customer service clerk, cab
driver, fast food worker, and truck driver. Id. at
79-80. Generally, Plaintiff alleges disability due to lumbar
spine impairments including a herniated disc at ¶ 4-L5,
a compressed nerve at ¶ 5-S1, and lumbar radiculopathy;
neck/head pain; a bulging disc at the C6 level of the
cervical spine; a post-concussion status; chronic headaches;
and anxiety. Id. at 111-12.
applied for Disability Insurance Benefits on October 1, 2013,
and for Supplemental Security Income on October 17, 2013,
alleging in both applications disability beginning September
14, 2012. T. 204-17. Plaintiff's applications were denied
initially on December 16, 2013, after which he timely
requested a hearing before an Administrative Law Judge
(“ALJ”). Id. at 7. Plaintiff appeared at
a hearing before ALJ Gregory M. Hamel on February 10, 2015.
Id. at 73-110. On April 23, 2015, the ALJ issued a
written decision finding Plaintiff was not disabled under the
Social Security Act. Id. at 8-31. On September 20,
2016, the Appeals Council denied Plaintiff's request for
review, making the ALJ's decision the final decision of
the Commissioner. Id. at 1. Plaintiff commenced this
action on November 6, 2016. See Dkt. No. 1
The ALJ's Decision
the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through September 30,
2016. T. 13. Second, the ALJ determined that Plaintiff has
not engaged in substantial gainful activity since September
14, 2012, the alleged onset date. Id. Third, the ALJ
found that Plaintiff's alleged impairments including
degenerative disc disease (“DDD”) of the lumbar
spine with radiculopathy, cervical strain, migraine
headaches, and an anxiety disorder are severe. Id.
Fourth, the ALJ concluded that Plaintiff does not have an
impairment or combination of impairments that meets or
medically equals one of the listed impairments in 20 C.F.R.
§ 404, Subpart P, App. 1 (the “Listings”).
Id. at 14-15. Specifically, the ALJ considered
listings 1.04 (disorders of the spine) and 12.06
(anxiety-related disorders). Id. Fifth, the ALJ
found that Plaintiff has the residual functional capacity
(“RFC”) to perform light work as defined in 20
C.F.R. §§ 404.1567(b) and 416.967(b) except
the claimant can only occasionally climb stairs, balance,
stoop, knee[l], crouch, and crawl; but never climb ladders or
similar devices or work at hazardous environments such as at
heights or around dangerous machinery (which does not include
driving or normal household activities). Furthermore, the
claimant cannot perform tasks that require more than
occasional public contact; and he cannot focus on tasks that
are more than routine and repetitive in nature.
Id. at 16. Sixth, the ALJ found that Plaintiff is
unable to perform any past relevant work. Id. at 25.
Seventh, the ALJ determined that there are jobs that exist in
significant concluded that Plaintiff is not disabled.
Plaintiff's Motion for Judgment on the Pleadings
in support of his motion for judgment on the pleadings,
Plaintiff argues that the ALJ committed reversible error by
failing to consider the medical source statement of
orthopedic surgeon Richard Byrne, M.D. Dkt. No. 10 at 3-6
(Pl.'s Mem. of Law). Plaintiff argues that the RFC should
have contained a reaching limitation. Id.at 4.
Further, plaintiff contends that the ALJ failed to address
Dr. Byrne's opinion in the decision, specifically his
opined limitations regarding no repetitive neck motions; no
repetitive bending, stooping, or reaching activity; and only
occasional (up to four times hourly) pushing, pulling, or
lifting objects no more than five to ten pounds. Id.
at 4. Plaintiff also argues that Dr. Byrne's opinion is
supported by lumbar and cervical spine reports. Id.
He further contends that the opinion is supported by
consultative examiner Elke Lorensen, M.D., who assessed
moderate restrictions for reaching and “turning the
head to the right.” Id. Plaintiff also notes
that a cervical spine impairment has been documented in
independent medical examiner Paul Kerschner, D.C.'s
examination findings, neurologist Hassan Shukri, M.D's
notes reporting cervical radicular symptom, and Thomas
Masten, M.D.'s diagnosis of cervical radicular pain.
argues that the ALJ's failure to address Dr. Byrne's
opinion is not harmless error because consideration of this
opinion was required for an accurate assessment of
Plaintiff's RFC and because significant limitations in
reaching or handling may eliminate a large number of
occupations. Dkt. No. 10 at 4-5. Plaintiff also argues that
the ALJ discounted the reaching limitations assessed by Dr.
Lorensen without the benefit of analyzing the similar
limitations assigned by Dr. Byrne. Id. at 5.
Plaintiff argues that a reaching limitation is appropriate
and would reduce the number of jobs available for him to
perform at Step Five because the jobs cited by the ALJ
require either frequent or constant reaching. Id.
Defendant's Motion for ...