United States District Court, W.D. New York
DECISION AND ORDER
MICHAEL A. TELESCA, UNITED STATES DISTRICT JUDGE.
Gonzalez (“Plaintiff”), represented by counsel,
brings 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 (“Defendant” or “the
Commissioner”),  denying his applications 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).
11, 2012, Plaintiff protectively filed applications for DIB
and SSI, alleging disability beginning October 31, 2009.
These claims were denied initially on July 25, 2012.
Plaintiff filed a written request for a hearing, which was
held on August 28, 2013 in Buffalo, New York. Administrative
Law Judge David Lewandowski (“the ALJ”) presided.
David Sypher, an impartial vocational expert (“the
VE”), appeared and testified. Plaintiff appeared with
his attorney and testified. At the hearing, Plaintiff amended
his onset date to February 11, 2011. On April 16, 2014, the
ALJ issued an unfavorable decision. Plaintiff's request for
review was denied by the Appeals Council on July 2, 2015,
making the ALJ's decision the final decision of the
Commissioner. Plaintiff then timely commenced this action.
one of the sequential evaluation, the ALJ found that
Plaintiff had not engaged in substantial gainful activity
since February 11, 2011, the amended alleged onset date. At
step two, the ALJ found that Plaintiff had the following
“severe” impairments: lumbar protrusion, asthma,
major depressive disorder, and left elbow and shoulder
tendinitis. At step three, the ALJ determined that
Plaintiff's impairments, considered singly or together,
did not meet or equal one of the listed impairments in 20
C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ specifically
considered Listings 1.04 (disorders of the spine), 3.03
(asthma), 1.02 (major dysfunction of a joint), and 12.04
to proceeding to step four, the ALJ determined that Plaintiff
had the residual functional capacity (“RFC”) to
perform the exertional requirements of light work as defined
in 20 C.F.R. §§ 404.1567(b), 416.967(b), and could
frequently perform postural activities; reach, push and pull;
must avoid pulmonary irritants; and was able to understand,
remember and carry out simple instructions, perform simple
tasks, and work in small, familiar groups.
four of the sequential evaluation, the ALJ concluded that
Plaintiff had past relevant work (“PRW”) as an
assistant manager at Autozone, doing patient intake at a
health care center, retail sales at Macy's, and order
picking at a corporate services company. However, he was not
able to perform the demands of his PRW. Continuing to step
five, the ALJ relied on the VE's testimony (T.77-78) to
find there were other jobs existing in the national economy
that a person of Plaintiff's age, and with his education,
work experience, and RFC, could perform the requirements of
the following representative occupations: electrical
assembler, inspector/hand packager, and mail sorter.
Accordingly, the ALJ entered a finding of “not
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 also Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The
district court must accept the Commissioner's findings of
fact, provided that such findings are supported by
“substantial evidence” in the record. See 42
U.S.C. § 405(g) (the Commissioner's findings
“as to any fact, if supported by substantial evidence,
shall be conclusive”). “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). The reviewing court nevertheless must
scrutinize the whole record and examine evidence that
supports or detracts from both sides. Tejada v.
Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for
substantial evidence does not apply to the Commissioner's
conclusions of law.” Byam v. Barnhart, 336
F.3d 172, 179 (2d Cir. 2003) (citing Townley v.
Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
Failure to Develop the Record
a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation
to develop the administrative record.” Perez v.
Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing
Echevarria v. Secretary of Health & HumanServs., 685 F.2d 751, 755 (2d Cir. 1982)).
“Whether dealing with a pro se claimant or one
represented by counsel, the ALJ must ‘develop [the
claimant's] complete medical history.'”
Lopez v. Comm'r of Soc. Sec., 622 F. App'x
59, 60 (2d Cir. 2015) (summary order) (citing 20 C.F.R.
§ 404.1512; Perez, 77 F.3d at 47 (describing
duty to develop record)). “[T]he agency is required
affirmatively to seek out additional evidence only where
there are ‘obvious gaps' in the administrative
record.” Eusepi v. Colvin, 595 F. App'x 7,
9 (2d Cir. 2014) (summary order) (quoting Rosa v.
Callahan, 168 F.3d 72, 79 & n. 5 (2d Cir. 1999)).
“[W]where there are no obvious gaps in the
administrative record, and where the ALJ already ...