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.
M. DEL COLLIANO, ESQ.
DECISION AND ORDER
T. Baxter U.S. Magistrate Judge.
before the Court, is a Social Security action filed by
Michael C. (“Plaintiff”) against the Commissioner
of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3). This matter was referred to me, for
all proceedings and entry of a final judgment, pursuant to
N.D.N.Y. General Order No. 18, and in accordance with the
provisions of 28 U.S.C. § 636(c), Fed.R.Civ.P. 73,
N.D.N.Y. Local Rule 73.1, and the consent of the parties.
(Dkt. Nos. 4, 6). The parties have each filed briefs (Dkt.
Nos. 9 and 10) addressing the administrative record of the
proceedings before the Commissioner. (Dkt. No.
was born in 1971, making him 43 years old on the amended
alleged onset date and 46 years old on the date of the
ALJ's decision. Plaintiff reported completing the twelfth
grade and past work as laborer, painter, and warehouse
worker. At the initial level, Plaintiff alleged disability
due to a spine impairment, asthma, and depression. Plaintiff
had lumbosacral back surgery in 2007.
initially applied for disability insurance benefits and
Supplemental Security Income on July 8, 2015, alleging
disability beginning August 1, 2011. Plaintiff's
applications were initially denied on October 6, 2015, after
which he timely requested a hearing before an Administrative
Law Judge (“ALJ”). Plaintiff appeared at a
hearing before ALJ Asad M. Ba-Yunus on June 5, 2017, at which
a vocational expert (“VE”) also testified. (T.
27-63.) At the hearing, Plaintiff's attorney moved to
amend the alleged onset date to July 30, 2014. (T. 34.) On
September 8, 2017, the ALJ issued a written decision finding
Plaintiff was not disabled under the Social Security Act. (T.
7-21.) On August 13, 2018, the Appeals Council denied
Plaintiff's request for review, making the ALJ's
decision the final decision of the Commissioner. (T. 1-6.)
The ALJ's Decision
decision, the ALJ found that Plaintiff met the insured status
requirements of the Social Security Act through December 31,
2015. (T. 12.) The ALJ determined that Plaintiff had not
engaged in substantial gainful activity since August 1, 2011,
the alleged onset date. (Id.) The ALJ further found
that Plaintiff had severe impairments including low back pain
secondary to degenerative disc disease and ruptured disc,
status post lumbosacral back surgery, and asthma/chronic
obstructive pulmonary disease (“COPD”).
(Id.) The ALJ determined that Plaintiff did not have
an impairment or combination of impairments that met or
medically equaled the severity of one of the listed
impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1. (T.
13.) Specifically, the ALJ considered the 12.00 Listings
(mental impairments). (Id.) The ALJ found that
Plaintiff had the residual functional capacity
(“RFC”) to perform light work
except [he] may never climb ramps, stairs, ladders, ropes, or
scaffolds, can no more than occasionally stoop, kneel, or
crouch, and only occasionally be exposed to unprotected
heights, humidity, wetness, extremes of indoor cold and/or
heat, and moving mechanical parts or dangerous machinery, and
must avoid all pulmonary irritants.
(Id.) The ALJ determined, based on VE testimony,
that Plaintiff was unable to perform any past relevant work,
but identified several occupations existing in significant
numbers in the national economy that Plaintiff could perform.
(T. 16-17.) The ALJ therefore concluded that Plaintiff was
not disabled. (T. 17.)
Issues in Contention
brief, Plaintiff argues that the ALJ failed to make a ruling
on Plaintiff's motion to amend the alleged onset date of
disability. Plaintiff further contends that the ALJ relied on
VE testimony in response to a hypothetical question that
posited less restrictive limitations than those in the
ALJ's RFC finding. (Dkt. No. 9, at 5-8.) Plaintiff also
argues the ALJ did not properly apply the treating physician
rule. (Id. at 8-10.)
brief argues the ALJ properly amended the disability onset
date (Dkt. No. 10, at 5-7), and that any error relating to
the ALJ's questioning of and reliance upon the VE
constituted harmless error (id. at 7-10). Defendant
also contends that the ALJ properly applied the treating
physician rule and correctly found that Plaintiff could
perform occupations existing in significant numbers in the
national economy. (Id. at 7-12.) For the reasons
stated below, the Court agrees with the Defendant and affirms
the decision of the Commissioner.
RELEVANT LEGAL STANDARD
Standard of Review
reviewing a denial of disability benefits may not determine
de novo whether an individual is disabled. 42 U.S.C.
§ 405(g); Wagner v. Sec'y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner's determination will be reversed only if the
correct legal standards were not applied, or it was not
supported by substantial evidence. See, e.g., Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Johnson v.
Bowen, 817 F.2d 983, 986 (2d Cir. 1987).
“Substantial evidence” is evidence that amounts
to “more than a mere scintilla, ” and has been
defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Selian, 708 F.3d at 417 (citing Richardson v.
Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)).
Where evidence is deemed susceptible to more than one
rational interpretation, the Commissioner's conclusion
must be upheld. Rutherford v. Schweiker, 685 F.2d
60, 62 (2d Cir. 1982).
determine on appeal whether the ALJ's findings are
supported by substantial evidence, a reviewing court
considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the
evidence must also include that which detracts from its
weight.” Williams v. Bowen, 859 F.2d 255, 258
(2d Cir. 1988). If supported by substantial evidence, the
Commissioner's finding must be sustained “even
where substantial evidence may support the plaintiff's
position and despite that the court's independent
analysis of the evidence may differ from the
[Commissioner's].” Rosado v. Sullivan, 805
F.Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court
must afford the Commissioner's determination considerable
deference, and may not substitute “its own ...