Burke v. Berryhill
Filing
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ORDER: For the reasons set forth in the attached document, the Defendant's Motion for an Order Affirming the Decision of the Commissioner (Doc. No. 22 ) is hereby GRANTED, and Plaintiff's Motion for Order Reversing the Commissioner's Decision and for Judgment (Doc. No. 19 ) is hereby DENIED. Signed by Judge Alvin W. Thompson on 9/18/18. (Mata, E.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
JAIME M. BURKE,
Plaintiff,
v.
NANCY A. BERRYHILL,
ACTING COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
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: Civil No. 3:17CV0537 (AWT)
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ORDER AFFIRMING THE COMMISSIONER’S DECISION
Plaintiff Jaime M. Burke has appealed under § 205(g) of the
Social Security Act, as amended, 42 U.S.C. § 405(g), a final
Decision by the Commissioner denying his application for
disability insurance benefits and Supplemental Security Income
payments.
The plaintiff argues that substantial evidence does not
support either the Administrative Law Judge’s (“ALJ”) residual
functional capacity (“RFC”) formulation, or the ALJ’s finding at
Step 5 that jobs that the plaintiff could perform exist in
significant numbers.
The plaintiff supports this argument with
the assertion (1) that the RFC did not account for the time the
plaintiff would be off-task and (2) that the hypothetical person
relied on in Step 5 was not analogous to the plaintiff, who
would be off task due to an inability to focus or concentrate.
Pl.’s Mem. to Reverse (Doc. No. 19-1) at 12-15.
The Commissioner argues that the plaintiff fails to
credibly establish limitations that would cause him to be off
task 10 percent or more of the workday and that the RFC and the
ALJ’s conclusion that light work exists is supported by
substantial evidence.
See Def.’s Mem. to Affirm (Doc. No. 22)
at 8.
For the reasons set forth below, the ALJ’s Decision is
being affirmed.
Legal Standard
“A district court reviewing a final [] decision . . . [of
the Commissioner of Social Security] pursuant to section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), is performing an
appellate function.”
(2d Cir. 1981).
Zambrana v. Califano, 651 F.2d 842, 844
The court may not make a de novo determination
of whether a plaintiff is disabled in reviewing a denial of
disability benefits.
See Wagner v. Sec’y of Health & Human
Servs., 906 F.2d 856, 860 (2d Cir. 1990).
Rather, the court’s
function is to ascertain whether the Commissioner applied the
correct legal principles in reaching a conclusion and whether
the Decision is supported by substantial evidence.
v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
See Johnson
Substantial
evidence is “‘such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’”
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Williams v.
Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)).
Substantial evidence must
be “more than a mere scintilla or touch of proof here and there
in the record.”
Williams, 859 F.2d at 258.
Therefore, absent
legal error, this court may not set aside the Decision of the
Commissioner if it is supported by substantial evidence.
See
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); 42 U.S.C.
§ 405(g)(“The findings of the Commissioner of Social Security as
to any fact, if supported by substantial evidence, shall be
conclusive . . . .”).
Further, if the Commissioner’s Decision
is supported by substantial evidence, that Decision will be
sustained, even where there may also be substantial evidence to
support the plaintiff’s contrary position.
See Schauer v.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
Discussion
The plaintiff points out that the ALJ relied heavily on Dr.
Leveille’s opinion that the plaintiff can do simple work in an
isolated environment for two-hour periods in an eight-hour day
and that he would have occasional problems with prolonged
concentration and sustained pace due to anxiety.
The plaintiff
notes that the vocational expert testified that being off task
10 percent of the time would render a person unemployable.
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The court agrees with the Commissioner that the plaintiff
has not provided evidence that the plaintiff would be off task
10 percent or more of the time.
The plaintiff merely argues
that the ALJ should have incorporated the off-task time into the
Step 4 and Step 5 analyses.
However, if a job provides
“[n]ormal work breaks and meal periods”, that would “split an
eight hour workday into approximately two hour periods” and fall
within the limitations noted by Dr. Leveille.
Swain v. Colvin,
No. 1:14-CV-869, 2017 WL 2472224, at *3 (W.D.N.Y. June 8, 2017)
(citing SSR 96-9p (recognizing that an 8-hour workday may be
broken up into two-hour intervals with a morning break, a lunch
period, and an afternoon break)).
The absence of any evidence
that the plaintiff would be off task 10 percent or more of the
time means his argument that he should have been found
unemployable based on the vocational expert’s testimony has no
foundation in the record, and he raises no other serious
challenge to the Commissioner’s position that the ALJ’s Step 4
and Step 5 conclusions are supported by substantial evidence.
Conclusion
For the reasons set forth above, the Defendant’s Motion
for an Order Affirming the Decision of the Commissioner (Doc.
No. 22) is hereby GRANTED, and Plaintiff’s Motion for Order
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Reversing the Commissioner’s Decision and for Judgment (Doc. No.
19) is hereby DENIED.
The Clerk shall enter Judgment accordingly and close this
case.
The Clerk’s Office is instructed that, if any party
appeals to this court the decision made after this remand, any
subsequent social security appeal is to be assigned to the
undersigned.
It is so ordered.
Dated this 18th day of September 2018, at Hartford,
Connecticut.
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/s/AWT __ ____
Alvin W. Thompson
United States District Judge
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