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Kelly v. Berryhill

United States District Court, W.D. New York

February 23, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.




         Represented by counsel, Darnell Damon Kelly (“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[1] (“Defendant” or “the Commissioner”) denying his 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 is granted.


         On October 25, 2012, Plaintiff protectively filed an application for SSI, alleging disability beginning October 27, 2007. Administrative Transcript (“T.”) 130-35. Plaintiff's application was initially denied and he timely requested a hearing, which was held before administrative law judge (“ALJ”) David S. Lewandowski on March 3, 2014. T. 26-47. At the hearing, Plaintiff amended his alleged onset date to October 25, 2012. T. 27. On July 25, 2014, the ALJ issued an unfavorable decision. T. 11-18. Plaintiff's request for review was denied by the Appeals Council on July 25, 2014, making the ALJ's decision the final decision of the Commissioner. T. 1-7. Plaintiff then timely commenced this action.


         The ALJ applied the five-step sequential evaluation promulgated by the Commissioner for adjudicating disability claims. See 20 C.F.R. § 404.1520(a). At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from October 25, 2012, the application date. T. 13.

         At step two, the ALJ determined that Plaintiff had the severe impairments of annular bulging and neural foraminal narrowing of the lumbar spine. Id. At step three, the ALJ considered Plaintiff's impairments and found that, singly or in combination, they did not meet or medically equal the severity of a listed impairment. Id. In particular, the ALJ considered Listing 1.04 (disorders of the spine) in reaching this determination. Id.

         Prior to proceeding to step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform sedentary work as defined in 20 C.F.R. 416.967(a), with the following additional limitations: can occasionally operate foot controls; can occasionally perform postural activities; cannot climb ladders, ropes, or scaffolds; must be allowed to change position from sitting to standing every 30-45 minutes. T. 13-14.

         At step four, the ALJ determined that Plaintiff had no past relevant work. T. 17. At step five, the ALJ relied on a vocational expert's testimony to find that there are other jobs that exist in significant numbers in the national economy that Plaintiff can perform, including callout operator, telephone solicitor, and charge account clerk. T. 17-18. The ALJ accordingly found that Plaintiff was not disabled as defined in the Act. T. 18.


         A. Scope of Review

         When considering a claimant's challenge to the decision of the Commissioner denying benefits under the Act, a 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”). Although the reviewing court 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), “[i]f there is substantial evidence to support the [Commissioner's] determination, it must be upheld.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). “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).

         In this case, Plaintiff contends that the ALJ's RFC finding was not supported by substantial evidence, because (1) the ALJ failed to properly evaluate the opinions of treating neurosurgeon Dr. P. Jeffrey Lewis, and (2) the ALJ mischaracterized the medical evidence of record. For ...

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