United States District Court, W.D. New York
DECISION AND ORDER
KENNETH SCHROEDER, JR. UNITED STATES MAGISTRATE JUDGE.
forth In the Standing Order of the Court regarding Social
Security Cases subject to the May 21, 2018 Memorandum of
Understanding, the parties have consented to the assignment
of this case to the undersigned to conduct all proceedings in
this case, including the entry of final judgment, as set
forth in 42 U.S.C. § 405(g). Dkt. #14.
applied for disability insurance benefits with the Social
Security Administration (“SSA”), on October 13,
2016, alleging disability beginning September 1, 2015, at the
age of 30, due to migraines, back issues, depression and
anxiety. Dkt. #7, pp.71, 82-83 & 134.
November 3, 2017, plaintiff appeared with counsel and
testified, along with an impartial vocational expert
(“VE”), Jay Steinbrenner, at an administrative
hearing before Administrative Law Judge (“ALJ”),
William M. Weir. Dkt. #5, pp.36-78. At the outset of the
hearing, plaintiff's counsel advised that records of
three or four treatment sessions at Suburban Psychiatric
Associates beginning in the Spring of 2017 remained
outstanding. Dkt. #5, p.39. The ALJ afforded counsel time to
submit these records. Dkt. #5, p.39.
testified that he was an electro-environmental specialist
with the Air Force for more than five years before his
honorable discharge on March 31, 2011. Dkt. #5, p.46. He has
a 100% disability rating due to a combination of impairments,
including migraines, back, knees and psychiatric issues. Dkt.
#5, p.46. Plaintiff has completed a No. of college credits
but has not obtained a degree because of his anxiety. Dkt.
#5, pp.47 & 61. He resides with his wife and three
children, ages 10, 9 and 5. Dkt. #5, p.44. Plaintiff
restricts his driving to appointments because being out on
the road provokes anxiety. Dkt. #5, p.45. Plaintiff works 3-4
days per week for a total of approximately 20 hours per week
as a service technician at Dave & Busters. Dkt. #5, p.47.
He prefers to work three 8-hour days rather than 4 six hour
days. Dkt. #5, p.48. Plaintiff testified that he could
probably work full-time at Dave & Busters if he
didn't have to duck into machines the entire time. Dkt.
#5, p.50. Mentally, he was unsure if he would be able to work
there full-time because it can get very stressful dealing
with people there. Dkt. #5, p.50.
testified that he frequently suffers from migraines which can
last several days and normally occur more than once per
month. Dkt. #5, p.51. Plaintiff's migraines make him
sensitive to light and prevent him from focusing. Dkt. #5,
p.51. Plaintiff also experiences constant back pain which is
exacerbated by crawling around or underneath video games at
work. Dkt. #5, p.53. He can generally walk around for a
couple of hours, but is limited in his ability to stand in
one place for more than 15 minutes or sit for more than 30
minutes at a time. Dkt. #5, p. 54. He can carry two regular
sized grocery bags and estimated that he could lift 20
pounds. Dkt. #5, pp.5455. He does not generally sleep more
than three hours per night because of his back pain. Dkt. #5,
p.62. Plaintiff fights depression every day and experiences
bad anxiety when he is out with his children due to a fear
that something bad could happen at any given moment. Dkt. #5,
pp.56-57. He does not like to be in social situations because
of his anxiety and has to manage his symptoms while working
at Dave & Busters. Dkt. #5, p.57. He can go to movies or
stores if they are not crowded. Dkt. #5, pp.65-66. He does
play board games with friends approximately once per week.
Dkt. #5, pp.65-66.
was asked to assume an individual with the residual
functional capacity (“RFC”), to perform light
with occasional social contact and occasional crouching,
crawling and kneeling, but who could not drive a motor
vehicle or use foot controls or pedals as an essential part
of the job. Dkt. #5, p.75. The VE testified that such an
individual would be able to work as a hydraulic assembler as
plaintiff previously performed that skilled job, and could
also work as an electronics assembler and electronics tester,
each of which were semi-skilled positions. Dkt. #5, pp.73
rendered a decision that plaintiff was not disabled on
January 17, 2018. Dkt. #5, pp.16-31. The Appeals Council
denied review on May 10, 2018. Dkt. #7, p.5. Plaintiff
commenced this action seeking review of the
Commissioner's final decision on July 5 2018. Dkt. #1.
reviewing a final decision of the SSA, this Court is limited
to determining whether the SSA's conclusions were
supported by substantial evidence in the record and were
based on a correct legal standard.” Talavera v. Astrue,
697 F.3d 145, 151 (2d Cir. 2012). Substantial evidence is
defined as “such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.”
Moran v. Astrue, 569 F.3d 496, 501 (2d Cir. 2009). If the
evidence is susceptible to more than one rational
interpretation, the Commissioner's determination must be
upheld. McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014).
“Where an administrative decision rests on adequate
findings sustained by evidence having rational probative
force, the court should not substitute its judgment for that
of the Commissioner.” Yancey v. Apfel, 145 F.3d 106,
111 (2d Cir. 1998).
disabled under the Social Security Act (“Act”), a
claimant must establish an inability to do any substantial
gainful activity by reason of any medically determinable
physical or mental impairment which can be expected to result
in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months. 20 C.F.R.
§ 404.1505(a). The Commissioner must follow a five-step
sequential evaluation to determine whether a claimant is
disabled within the meaning of the Act. 20 C.F.R. §
404.1520(a). At step one, the claimant must demonstrate that
he is not engaging in substantial gainful activity. 20 C.F.R.
§ 404.1520(b). At step two, the claimant must
demonstrate that he has a severe impairment or combination of
impairments that limits the claimant's ability to perform
physical or mental work-related activities. 20 C.F.R. §
404.1520(c). If the impairment meets or medically equals the
criteria of a disabling impairment as set forth in Appendix 1
of Subpart P of Regulation No. 4 (the
“Listings”), and satisfies the durational
requirement, the claimant is entitled to disability benefits.
20 C.F.R. § 404.1520(d). If the impairment does not meet
the criteria of a disabling impairment, the Commissioner
considers whether the claimant has sufficient RFC for the
claimant to return to past relevant work. 20 C.F.R. §
404.1520(e)-(f). If the claimant is unable to return to past
relevant work, the burden of proof shifts to the Commissioner
to demonstrate that the claimant could perform other jobs
which exist in significant No. in the national economy, based
on claimant's age, education and work experience. 20
C.F.R. § 404.1520(g).
instant case, the ALJ made the following findings with regard
to the five-step sequential evaluation: (1) although
plaintiff worked part-time, he had not engaged in substantial
gainful activity since the alleged onset date of September 1,
2015; (2) plaintiff's migraine headaches, degenerative
disc disease with lumbago, anxiety disorder and depressive
disorder constitute severe impairments; (3) plaintiff's
impairments did not meet or equal any listed impairment; (4)
plaintiff retained the residual functional capacity to
perform light work with the following limitations: no use of
foot controls or pedals, no driving required and occasional
crouching, crawling, kneeling and social contact; and (5)
plaintiff was ...