United States District Court, N.D. New York
D. OLINSKY, ESQ., for Plaintiff
KRISTINA D. COHN, Special Asst. U.S. Attorney, for Defendant
MEMORANDUM-DECISION AND ORDER
T. BAXTER UNITED STATES MAGISTRATE JUDGE
matter was referred to me, for all proceedings and entry of a
final judgment, pursuant to the Social Security Pilot
Program, 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).
filed simultaneous applications for Disability Insurance
Benefits (“DIB”) and Supplemental Security Income
(“SSI”), alleging disability beginning January
31, 2008. (Administrative Transcript (“T”) at
208, 215). These applications were denied initially on
January 5, 2015, and upon reconsideration on May 12, 2015.
(T. 67-68, 89-90). Plaintiff timely requested a hearing with
an Administrative Law Judge (“ALJ”). (T. 136). On
February 2, 2017, plaintiff appeared with her representative
and testified at a hearing before ALJ Roxanne Fuller.
(T.33-66). At that time, plaintiff amended her alleged onset
date to April 1, 2010. (T. 40). After hearing plaintiff's
testimony, the ALJ took testimony from Vocational Expert
(“VE”) Suman Srinivasan. (T. 60-66). On June 22,
2017, ALJ Fuller found that plaintiff was not disabled
through the date of her decision. (T. 10-27). Plaintiff
requested a review of the ALJ's decision, which the
Appeals Council denied on April 30, 2018. (T. 1-3). Thus, the
ALJ's opinion became the final decision of the
GENERALLY APPLICABLE LAW
considered disabled, a plaintiff seeking disability insurance
benefits or SSI disability benefits must establish that he is
“unable to engage in 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…..” 42 U.S.C.
§ 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of
such severity that he is not only unable to do his previous
work but cannot, considering his age, education, and work
experience, engage in any other kind of substantial gainful
work which exists in the national economy, regardless of
whether such work exists in the immediate area in which he
lives, or whether a specific job vacancy exists for him, or
whether he would be hire if he applied for work
42 U.S.C. § 1382(a)(3)(B). The Commissioner uses a
five-step process, set forth in 20 C.F.R. sections 404.1520
and 416.920, to evaluate disability insurance and SSI
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is
not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly
limits his physical or mental ability to do basic work
activities. If the claimant suffers such an impairment, the
third inquiry is whether, based solely on medical evidence,
the claimant has an impairment which meets or equals the
criteria of an impairment listed in Appendix 1 of the
regulations. If the claimant has such an impairment, the
[Commissioner] will consider him disabled with-out
considering vocational factors such as age, education, and
work experience… Assuming the claimant does not have a
listed impairment, the fourth inquiry is whether, despite the
claimant's severe impairment, he has the residual
functional capacity to perform his past work. Finally, if the
claimant is unable to perform his past work, the
[Commissioner] then determines whether there is other work
which the claimant can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982); see 20 C.F.R. §§ 404.1520, 416.920.
The plaintiff has the burden of establishing disability at
the first four steps.
if the plaintiff establishes that his impairment prevents him
from performing his past work, the burden then shifts to the
Commissioner to prove the final step. Id.
Scope of Review
reviewing a final decision of the Commissioner, a court must
determine whether the correct legal standards were applied
and whether substantial evidence supported the decision.
Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013);
Brault v. Soc. Sec. Admin. Comm'r, 683 F.3d 443,
448 (2d Cir. 2012); 42 U.S.C. § 405(g). Substantial
evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.”
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012). It must be “more than a scintilla” of
evidence scattered throughout the administrative record.
Id. However, this standard is a very deferential
standard of review, “even more so than the
‘clearly erroneous standard.'”
Brault, 683 F.3d at 448.
determine on appeal whether an ALJ's findings are
supported by substantial evidence, a reviewing court
considers the whole record, examining the evidence from both
sides, because an analysis of the substantiality of the
evidence must also include that which detracts from its
weight.” Williams on behalf of Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988). However, a
reviewing court may not substitute its interpretation of the
administrative record for that of the Commissioner, if the
record contains substantial support for the ALJ's
decision. Id. See also Rutherford v. Schweiker, 685
F.2d 60, 62 (2d Cir. 1982).
is not required to explicitly analyze ever piece of
conflicting evidence in the record. See, e.g., Monguer v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (Finding we
are unwilling to require an ALJ explicitly to reconcile every
conflicting shred of medical testimony). However, the ALJ
cannot “pick and choose evidence in the record that
supports his conclusions.” Cruz v. Barnhart,
343 F.Supp.2d 218, 224 (S.D.N.Y. 2004); Fuller v.
Astrue, No. 09-CV-6279, 2010 WL 5072112 (W.D.N.Y. Dec.
the date of the administrative hearing, plaintiff was 48
years old. (T. 37). She was divorced with four children,
resided in a mobile home, and had her driver's license.
(T. 38-39). She graduated high school and completed two years
of college. (T. 39).
was employed as a full-time store manager at Family Dollar in
2010, where her duties included training and supervising
other employees, setting up the store, unloading trucks, and
customer service. (T. 40). She left the position because she
had “a lot going on, ” i.e. handling her divorce
and dealing with an injury sustained by her youngest child.
(T. 40-41). After leaving Family Dollar, plaintiff attempted
to work other inventory and retail ...