United States District Court, N.D. New York
OFFICES OF STEVEN R. DOLSON STEVEN R. DOLSON, ESQ. Counsel
SOCIAL SECURITY ADMIN. DAVID L. BROWN, ESQ. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant.
MEMORANDUM-DECISION AND ORDER 
J. Stewart U.S. Magistrate Judge.
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.
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.
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.
The ALJ's Decision
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
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.
The Parties' Briefings on Their Cross-Motions
Plaintiff's Motion for Judgment on the Pleadings
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.
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.
Defendant's Motion for Judgment on the Pleadings
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 ...