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Heim v. Commissioner of Social Security

United States District Court, N.D. New York

March 29, 2018

ARIANA HEIM, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

          LAW OFFICES OF STEVEN R. DOLSON STEVEN R. DOLSON, ESQ. Counsel for Plaintiff.

          U.S. SOCIAL SECURITY ADMIN. DAVID L. BROWN, ESQ. OFFICE OF REG'L GEN. COUNSEL - REGION II Counsel for Defendant.

          MEMORANDUM-DECISION AND ORDER [1]

          Daniel J. Stewart U.S. Magistrate Judge.

         Currently before the Court, in this Social Security action filed by Ariana Heim (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) 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.

         I. RELEVANT BACKGROUND

         A. Factual Background

         Plaintiff was born in 1979, making her 34 years old at the alleged onset date and 35 years old at the date of the ALJ's decision. Dkt. No. 9, Admin. Tr. (“Tr.”), p. 146. Plaintiff reported obtaining a GED and completing some college. Tr. at p. 29. Plaintiff has past work as a personal care aide, retail sales clerk, and gas station clerk. Tr. at p. 150. Generally, Plaintiff alleges disability due to a seizure disorder, degenerative joint disease, sleep apnea, bipolar disorder, and migraines. Tr. at p. 149.

         B. Procedural History

         Plaintiff applied for Disability Insurance Benefits and Supplemental Security Income on September 19, 2013. Tr. at p. 60. Plaintiff's applications were initially denied on November 21, 2013, after which she timely requested a hearing before an Administrative Law Judge (“ALJ”). Tr. at pp. 63-68. Plaintiff appeared at a hearing before ALJ Paul F. Kelly on April 14, 2015. Tr. at pp. 25-47. On April 30, 2015, the ALJ issued a written decision finding Plaintiff was not disabled under the Social Security Act. Tr. at pp. 10-24. On September 9, 2016, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. Tr. at p. 1.

         C. The ALJ's Decision

         The ALJ made the following findings of fact and conclusions of law. First, the ALJ found that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2014. Tr. at p. 15. Second, the ALJ found that Plaintiff had not engaged in substantial gainful activity since August 29, 2013, the alleged onset date. Id. Third, the ALJ found that Plaintiff's alleged impairments including bipolar disorder, asthma, sleep apnea, obesity, degenerative joint disease, and right-sided hearing loss are severe. Tr. at pp. 15-16. Fourth, the ALJ found 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”). Tr. at p. 16. Specifically, the ALJ considered the criteria of the 12.00 Listings (mental disorders). Id. Fifth, the ALJ found that Plaintiff has the residual functional capacity (“RFC”) to

lift up to twenty pounds occasionally, lift and carry up to ten pounds frequently and sit, stand, and walk for about six hours in an eight-hour workday with normal breaks. She can no more than occasionally climb ramps or stairs, occasionally balance, stoop, kneel, crouch, or crawl, and never climb ladders, ropes or scaffolds. The claimant also should avoid concentrated exposure to excessive noise, irritants such as fumes, odors, dust, and gases, as well as avoid all exposure to operational control of moving machinery, unprotected heights, and hazardous machinery. Additionally, the claimant is capable of work that is limited to simple routine tasks with no more than occasional interaction with the public and coworkers.

Tr. at pp. 16-17. Sixth, the ALJ found that Plaintiff is unable to perform any past relevant work. Tr. at p. 19. Seventh, and last, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. Tr. at pp. 19-20. The ALJ therefore concluded that Plaintiff is not disabled.

         D. The Parties' Briefings on Their Cross-Motions

         1. Plaintiff's Motion for Judgment on the Pleadings

         Plaintiff makes two arguments in support of her Motion for Judgment on the Pleadings. See generally Dkt. No. 10, Plaintiff's Memorandum of Law (“Pl.'s Mem. of Law”), pp. 4-8. First, Plaintiff argues that the ALJ committed reversible error by failing to properly apply the “special technique” for the evaluation of mental health impairments. Id. at pp. 4-7. Specifically, Plaintiff argues that the ALJ did not make any specific finding that Plaintiff had functional limitations on the “five point scale related to any of the four broad categories of functioning” and that the ALJ appeared to make “a finding that all limitations fall between the mild and moderate, ” a finding that Plaintiff argues is not supported by any evidence. Id. at pp. 5-6. Plaintiff notes that Agency consultant A. Herrick, Ph.D., opined she had moderate limitations in her ability to maintain attention and concentration for extended periods, complete a normal workday and work week without interruptions from psychologically based symptoms, perform at a consistent pace without an unreasonable number and length of rest periods, and interact with the general public. Id. Plaintiff notes that consultative examiner Alan Dubro, Ph.D., indicated that Plaintiff would have marked limitations in attention and concentration as well as interactions with others. Id. at p. 6. Plaintiff argues that, despite acknowledging these opinions and appearing to afford more weight to Dr. Herrick's opinion because of inconsistencies in Dr. Dubro's opinion, a review of Dr. Dubro's opinion does not reveal inconsistencies. Id. Plaintiff also contends that the ALJ's decision lacks a detailed rating of the four broad categories of functioning and a comparison to the criteria of the relevant listings as required by the regulations. Id. at pp. 6-7.

         Second, Plaintiff argues that the ALJ committed reversible error by formulating an RFC that was vague with respect to Plaintiff's ability to hear. Id. at pp. 7-8. Specifically, Plaintiff argues that it is unclear what the ALJ meant by “concentrated exposure to excessive noise” within the RFC and that this vagueness is not harmless error. Id. Plaintiff also notes that the positions that the ALJ identified at Step Five require exposure to level 3 (moderate) noise in the workplace. Id. Plaintiff argues that the ALJ failed to inquire about this conflict (whether the limitation is for a quiet work environment) when relying upon the testimony of the vocation expert (“VE”) pursuant to Social Security Ruling (“SSR”) 00-4p. Id.

         2. Defendant's Motion for Judgment on the Pleadings

         Defendant makes two arguments in support of her Motion for Judgment on the Pleadings. See generally Dkt. No. 12, Defendant's Memorandum of Law (“Def.'s Mem. of Law”) at pp. 4-11. First, Defendant argues that the ALJ properly evaluated Plaintiff's mental impairments at Steps Two and Three. Id. at pp. 4-8. Specifically, Defendant argues that the ALJ stated at Step Two that he considered the four broad areas of functioning (referred to as the paragraph B criteria under the listings) and further explained that Plaintiff's activities of daily living, social functioning, and concentration, persistence, or pace were no more than moderately limited. Id. at p. 5. Defendant argues that there is no ambiguity in the ALJ's findings regarding these three areas of functioning because these findings correspond with his finding that Plaintiff's mental impairment was severe. Id. Defendant also argues that the ALJ explained that his finding was supported by Dr. Herrick's ...


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