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Zych v. Commissioner of Social Security

United States District Court, W.D. New York

January 3, 2020

JAMES ZYCH, Plaintiff,



         As set 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.


         Plaintiff 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.

         On 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.

         Plaintiff 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.

         Plaintiff 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.

         The VE was asked to assume an individual with the residual functional capacity (“RFC”), to perform light work[1] 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 & 75-76.

         The ALJ 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.


         “In 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).

         To be 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).

         In the 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 ...

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