United States District Court, W.D. New York
ROBERT A. MALESKI, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
OFFICES OF KENNETH HILLER, PLLC Counsel for Plaintiff, MARY
ELLEN GILL, ESQ. KENNETH HILLER, ESQ.
SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL -
REGION II Counsel for Defendant, HEETANO SHAMSOONDAR, ESQ.
JOANNE PENGELLY, ESQ.
MEMORANDUM-DECISION AND ORDER
William B. Mitchell Carter, U.S. Magistrate Judge
parties consented, in accordance with a Standing Order, to
proceed before the undersigned. (Dkt. No. 14.) The court has
jurisdiction over this matter pursuant to 42 U.S.C. §
405(g). The matter is presently before the court on the
parties' cross-motions for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. For the reasons discussed below, Plaintiff's
motion is denied, and the Commissioner's motion is
was born in 1968. (T. 78.) He completed high school. (T.
193.) Generally, Plaintiff's alleged disability consists
of lumbar sprain. (T. 192.) His alleged disability onset date
is February 24, 2001. (T. 78.)
September 23, 2014, Plaintiff applied for Supplemental
Security Income (“SSI”) under Title XVI of the
Social Security Act. (T. 78.) Plaintiff's application was
initially denied, after which he timely requested a hearing
before an Administrative Law Judge (“the ALJ”).
On September 19, 2017, Plaintiff appeared before the ALJ,
Timothy Belford. (T. 25-64.) On September 29, 2017, ALJ
Belford issued a written decision finding Plaintiff not
disabled under the Social Security Act. (T. 8-24.) On October
3, 2018, the Appeals Council (“AC”) denied
Plaintiff's request for review, rendering the ALJ's
decision the final decision of the Commissioner. (T. 1-5.)
Thereafter, Plaintiff timely sought judicial review in this
The ALJ's Decision
in his decision, the ALJ made the following five findings of
fact and conclusions of law. (T. 13-20.) First, the ALJ found
Plaintiff had not engaged in substantial gainful activity
since September 23, 2014. (T. 13.) Second, the ALJ found
Plaintiff had the severe impairments of: degenerative joint
disease of the thoracic and lumbar spine. (Id.)
Third, the ALJ found Plaintiff did not have an impairment
that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T.
15.) Fourth, the ALJ found Plaintiff had the residual
functional capacity (“RFC”) to perform light work
as defined in 20 C.F.R. § 416.967(b); except:
no more than frequent pushing/pulling/reaching with the right
upper extremity, and nor more [than] frequent handling with
the right upper extremity; no more than occasional overhead
reaching with the right upper extremity; no more than
occasional climbing of ramps, stairs, and ladders; occasional
balancing, stooping, kneeling, crouching and crawling; needs
to avoid unprotected heights and hazardous moving machinery;
only simple, routine tasks with occasional decision making.
(Id.) Fifth, the ALJ determined Plaintiff was
unable to perform past relevant work; however, there were
jobs that existed in significant numbers in the national
economy Plaintiff could perform. (T. 19.)
THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION
makes two separate arguments in support of his motion for
judgment on the pleadings. First, Plaintiff argues the ALJ
failed to resolve a conflict between the vocational
expert's testimony and the Dictionary of Occupational
Titles; therefore, the ALJ's decision was not supported
by substantial evidence. (Dkt. No. 8 at 9-11.) Second, and
lastly, Plaintiff argues the ALJ made various legal errors in
weighing the opinion of the consultative examiner, Michael
Rosenberg, M.D. (Id. at 11-13.) Plaintiff also filed
a reply in which he reiterated his original arguments. (Dkt.