United States District Court, N.D. New York
D. OLINSKY, ESQ., for Plaintiff.
TARABELLI, Special Asst. U.S. Attorney for Defendant.
MEMORANDUM-DECISION AND ORDER
Andrew T. Baxter U.S. 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, 7).
filed an application for Disability Insurance Benefits
(“DIB”) on July 9, 2015,  alleging disability
beginning July 9, 2015. (Administrative Transcript
(“T”) at 77-78). His application was denied
initially on October 15, 2015. (T. 85). Plaintiff requested a
hearing, which was conducted by video conference by
Administrative Law Judge (“ALJ”) Paul D. Barker,
Jr. on October 11, 2017, at which plaintiff and Vocational
Expert (“VE”) Jennifer Guediri testified. (T.
decision dated November 6, 2017, the ALJ found that plaintiff
was not disabled. (T. 18-27). The ALJ's decision became
the Commissioner's final decision when the Appeals
Council denied plaintiff's request for review on October
24, 2018. (T. 1-6).
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 hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
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 disability claims.
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 without
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. However, if the plaintiff establishes
that her impairment prevents her from performing her 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 every piece of
conflicting evidence in the record. See, e.g., Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (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,
at *6 (W.D.N.Y. Dec. 6, 2010).
was 51 years old at the time of the ALJ's hearing and 49
at the alleged date of onset. He has a high-school education.
(T. 39). Plaintiff was married and lived with his wife. (T.
77, 37-38). His past relevant work was as a boilermaker,
which involved a great deal of heavy lifting and postural
changes. (T. 40-46). Plaintiff's application alleged
disability due to “arthritis neck and back, ”
“bone spurs, ” and “narrowing of the
spine.” (T. 77).
ALJ's hearing, plaintiff testified that he was unable to
work due to the severe pain in his lower back and the pain in
his neck. (T. 46). He stated that the lower back pain was
worse, and that he could not sit or stand for long periods of
time. (T. 46, 48). Specifically, he testified that he could
sit for “maybe two hours at the most, ” and that
“standing varies . . . [m]aybe an hour.”
(Id.) Plaintiff also testified that he had
“troubles” in his left knee, but “nothing
that has been medically diagnosed, ” and
“moderate carpal tunnel in [his] left hand, ”
which “hurts.” (T. 47). Plaintiff stated that his
back pain was “constant, ” while his neck pain
was “not always there, ” but did bother him. (T.
48). Some days were “better than others.”
testified that he had difficulty sleeping because he could
not find a comfortable position, and that his arms would
“fall asleep.” (T. 50). He stated that he took
medication for the pain, had tried physical therapy, had
“injections” in both his neck and back, and tried
a TENS Unit. (T. 50-51) Plaintiff testified that none of the
treatments gave him relief. (Id.) He spoke to a
doctor about surgery, but that the doctor did not recommend
it, based on the failure of the injections. (T. 51-51).
stated that he could lift “[a] gallon of milk . . .
naturally, and “probably five [or] ten pounds.”
(T. 55). He stated that he did not have difficulty with his
hands “for the most part, ” although they
sometimes “go to sleep, ” and that bothered him
“as far as lifting.” (Id.) Plaintiff
stated that he could walk a block or two without stopping.
the day, plaintiff used the computer for “a little bit,
” watched television, went outside to sit for a little
while, but then had to lay in bed and rest for a
while. (Id.) He had dogs, but had not
taken them for a walk in a long time; and he occasionally
went to the grocery store or walked to his
brother-in-law's home, which was about a block away. (T.
56). Plaintiff's wife did most of the household chores,
but occasionally, plaintiff would cook a small, simple meal.
(Id.) He hired someone to cut the grass and remove
snow for him. (Id.) Plaintiff testified that his
pain “sometimes” affected his ability to
concentrate on a task such as reading a book or watching
television. (T. 60-61). He stated that his neck pain often
caused “severe headaches” in the back of his neck
approximately two or three times per week. (T. 62).
heard testimony from VE Jennifer Guediri. (T. 66-73). She
testified that plaintiff's past relevant work
(“PRW”) as a boilermaker was “heavy,
” and was “very heavy” as plaintiff
performed it. (T. 66-67). There were no skills transferable
to either the light or sedentary level from plaintiff's
PRW. (T. 67). The ALJ asked the VE to assume an individual
who could perform “a range of light work” as
defined in the Social Security Regulations, except that the
individual could stand, walk, or sit for six hours in an
eight-hour day; and could occasionally stoop, climb ramps and
stairs, balance, kneel, crawl, and crouch. (T. 67-68). The
individual could never climb ladders, ropes, or scaffolds.
stated that such an individual could not perform the
plaintiff's PRW, but could perform other work existing in
substantial numbers in the national economy. (T. 68-69). The
ALJ then asked the VE to include the additional restriction,
requiring the individual to have “the option to sit at
the workstation and continue working for ten minutes seated
after every hour of standing.” (T. 70). The VE
testified that only one of the previously mentioned jobs -
sorter - would be available to an individual with such
restrictions because it could be performed “sitting or
standing at a workstation.” (T. 70).
the other two positions first mentioned by the VE would no
longer be available to this individual, the VE testified that
there were other jobs available that could be performed in
either a seated or a standing position. (T. 70-71). These
jobs were “marker” and “parking
attendant.” (T. 71). The VE specifically stated that,
although the Dictionary of Occupational Titles
(“DOT”) did not mention the ability to alternate
sitting and standing as part of the descriptions of the three
jobs, the VE was testifying “based on [her] observation
of the job, ” and based on speaking to employers about
the requirements of such jobs. (T. 70). However, the VE
testified that if an individual were to be off-task for up to
20% of the work day, “[t]hat would rule out
also asked the VE another hypothetical question “at the
sedentary level.” (T. 72). This question involved an
individual who could perform “a range of sedentary
work, ” except that the individual could lift, carry,
push, and pull ten pounds occasionally; and could sit for six
hours and stand and walk for two hours in an eight-hour day.
(Id.) The individual could occasionally climb ramps
and stairs, kneel, crawl, crouch, and balance, but could
never climb ladders, ropes, and scaffolds. (Id.) The
VE testified that such an individual could perform the jobs
of security or ID clerk,  table worker, and final assembler.
plaintiff and the ALJ have outlined the relevant medical
evidence in this case. (T. 22-24; Pl.'s Br. at 3-7).
Rather than reciting this evidence at the outset, the court
will discuss the relevant details ...