Matthew v. Commissioner of Social Security

Filing 14

ORDER granting 11 Motion for Judgment on the Pleadings. SO ORDERED that defendants motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure is granted and the Commissioners decision denying plaintiffs application for SSI is affirmed. The Clerk of the Court shall close this case. CM to pro se plaintiff. Ordered by Judge Sandra J. Feuerstein on 8/31/2015. (Florio, Lisa)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
-------------------------------------------------------------X
AUDIE J. MATTHEW JR.,

FILED 
CLERK 

8/31/2015 12:57 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

Plaintiff,
ORDER
13-CV-5336 (SJF)

-againstCAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
-------------------------------------------------------------X
FEUERSTEIN, J.

Pro se plaintiff Audie Matthew, Jr. (“plaintiff” or “claimant” or “Matthew”) commenced
this action seeking judicial review of the final determination of defendant Commissioner of
Social Security (“Commissioner” or “defendant”) denying his November 30, 2009 application
for supplemental security income (“SSI”). Now before the Court is defendant’s unopposed
motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. [Docket Entry No. 11]. For the reasons that follow, defendant’s motion is granted.
I.

BACKGROUND
On November 30, 2009, plaintiff filed an application for SSI, alleging disability due to

hearing problems in his left ear and mood disorders [Docket Entry No. 13 Transcript of
Administrative Record (“Tr.”)), 48, 140-47], which was denied by the Social Security
Administration (“SSA”) on August 16, 2010 (id. at 84-88) and upon reconsideration on February
22, 2011. Id. at 93-100. Upon plaintiff’s request, a hearing was held before administrative law
judge (“ALJ”) Philip Moulaison on October 6, 2011, at which plaintiff, who appeared with
counsel, and vocational expert John J. Komar (“VE Komar”) testified. Id. at 44-64. On
November 23, 2011, the ALJ issued a decision (“ALJ Decision”) (id. at 25-43) finding that

1

plaintiff had “not engaged in substantial gainful activity since November 30, 2009, the
application date” (id. at 30), that plaintiff had a severe impairment of bilateral sensorineural
hearing loss (id.), that plaintiff did not have an impairment or combination or impairments that
met or medically equaled the severity of one of the listed impairments (id. at 33), that plaintiff
had “the residual functional capacity to perform a full range of work at all exertional levels but
with the following nonexertional limitations: the claimant can hear at the high end of the speech
range in terms of decibels and the claimant requires high loudness in order to differentiate
speech” (id.), that plaintiff was capable of performing past relevant work (id. at 37), and that
plaintiff had not been under a disability since November 30, 2009, the date his application was
filed. 1 Id. The ALJ Decision became final on July 25, 2013, when the Appeals Council denied
plaintiff’s request for review. Id. at 1-5.
II.

DISCUSSION
A.

Standards of Review
1.

Rule 12(c)

Rule 12(c) of the Federal Rules of Civil Procedure provides that “[a]fter the pleadings are
closed – but early enough not to delay trial – a party may move for judgment on the pleadings.”
Fed. R. Civ. P. 12(c). The standard applied to a Rule 12(c) motion is the same as that applied to
a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. See Bank

1

While plaintiff alleged disability beginning April 4, 2008 (Tr. 28), the earliest plaintiff is eligible
to receive SSI is the month following the month he filed his SSI application. See 20 C.F.R. § 416.335;
Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 486 n.1 (2d Cir. 2012) (“The earliest month for which SSI
benefits could be paid would be the month following the month Frye filed A.O.’s application.”);
Roettinger v. Colvin, No. 14-civ-1135, 2015 WL 4897525, at *1 (E.D.N.Y. Aug. 14, 2015) (“the earliest
month for which the Plaintiff could be paid SSI is…the month following…the date on which the Plaintiff
filed her application to the SSA for benefits”)). The ALJ noted that “[a]lthough supplemental security
income is not payable prior to the month following the month in which the application was filed (20
C.F.R. 416.335), [he] considered the complete medical history consistent with 20 C.F.R. 416.912(d).” Tr.
28.
2

of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). To survive such a motion, “a
complaint must contain sufficient factual matter…to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quotation marks and citation omitted). In
resolving a motion to dismiss, the court must “accept all well-pleaded allegations in the
complaint as true and draw all reasonable inferences in the plaintiff’s favor.” Chabad Lubavitch
of Litchfield Cnty., Inc. v. Litchfield Historic Dist. Comm’n, 768 F.3d 183, 191 (2d Cir. 2014),
cert. denied, 135 S. Ct. 1853, 191 L. Ed. 2d 725 (2015) (internal quotation marks and alterations
omitted). “Even if a motion for judgment on the pleadings is entirely unopposed, that alone is
not grounds for granting it: the Second Circuit has denied that ‘a plaintiff’s failure to file a
motion for judgment on the pleadings or to respond to the Commissioner’s Rule 12(c) motion
will result in the dismissal of his complaint.’” Orr v. Comm’r of Soc. Sec., No. 13-civ-3967,
2014 WL 4291829, at *4 (S.D.N.Y. Aug. 26, 2014) (citing Nauss v. Barnhart, 155 F. App’x 539,
540 (2d Cir. 2005)).
2.

Review of Determinations by the Commissioner of Social Security

Upon review of the final decision of the Commissioner, a court may enter “judgment
affirming, modifying, or reversing the decision…with or without remanding the cause for a
rehearing.” 42 U.S.C. § 405(g). A district court must consider whether “there is substantial
evidence, considering the record as a whole, to support the Commissioner’s decision and if the
correct legal standards have been applied.” Brault v. Social Sec. Admin., Com’r, 683 F.3d 443,
447 (2d Cir. 2012) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). “[I]t is not the
function of the reviewing court to decide de novo whether a claimant was disabled.” Melville v.
Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “[S]ubstantial evidence is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (internal quotation marks and
3

citation omitted). Although the Commissioner’s findings of fact are binding as long as they are
supported by substantial evidence, this deferential standard of review is inapplicable to the
Commissioner’s conclusions of law or application of legal standards. See Byam v. Barnhart, 336
F.3d 172, 179 (2d Cir. 2003); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984). Rather,
courts have a statutory and constitutional duty to ensure that the Commissioner has applied the
correct legal standards, regardless of whether the Commissioner’s decision is supported by
substantial evidence. See Pollard v. Halter, 377 F.3d 183, 188-89 (2d Cir. 2004). If a court
finds that the Commissioner has failed to apply the correct legal standards, the court must
determine if the “error of law might have affected the disposition of the case.” Id. at 189. If so,
the Commissioner’s decision must be reversed. Id.; see also Kohler v. Astrue, 546 F.3d 260, 265
(2d Cir. 2008). If the application of the correct legal standard could lead only to the same
conclusion, the error is considered harmless and remand is unnecessary. See Zabala v.
Astrue, 595 F.3d 402, 409 (2d Cir. 2010).
B.

Standards for Determining Eligibility for SSI

“A claimant is entitled to SSI if they are (1) ‘disabled’ within the meaning of the Act and
(2) meet certain income limits.” Roettinger, 2015 WL 4897525, at *8 (citing 42 U.S.C. §
1382(a)). “An SSI applicant qualifies as “disabled” under the Act if she is unable ‘to engage in
any substantial gainful activity by reason of any medically determinable physical or mental
impairment...which has lasted or can be expected to last for a continuous period of not less than
12 months.’” Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (citing 42 U.S.C. §
423(d)(1)(A)). To be eligible for SSI benefits, the applicant’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….’” Saxon v. Colvin, No. 13-civ4

165, 2015 WL 3937206, at *3 (W.D.N.Y. June 26, 2015) (quoting 42 U.S.C. § 1382c(a)(3)(B)).
“Pursuant to regulations promulgated under the Act, the Commissioner is required to apply a
five-step sequential analysis to determine whether an individual is disabled under Titles II and
XVI of the Act.” Hussnatter v. Astrue, No. 09-civ-3261, 2010 WL 3394088, at *17 (E.D.N.Y.
Aug. 20, 2010); see also 20 C.F.R. §§ 404.1520, 416.920.
First, the Commissioner must determine whether the claimant is presently engaged in
substantial gainful activity. 20 C.F.R. §§ 404.1520(a)(4)(i) and (b), 416.920(a)(4)(i) and (b). If
the claimant is not engaged in “substantial gainful activity,” the Commissioner next considers if
the claimant has a “severe” impairment, which is an impairment or combination of impairments
that “significantly limits [the claimant’s] physical or mental ability to do basic work
activities....” 20 C.F.R. §§ 404.1520(a)(4)(ii) and (c), 416.920(a)(4)(ii) and (c). At the third step,
the Commissioner determines whether the claimant’s severe impairment “meets or equals one of
[the] listings in appendix 1 to subpart P of [20 C.F.R. Part 404 of the Act] and meets the duration
requirement.” 20 C.F.R. §§ 404.1520(a)(4)(iii) and (d), 416.920(a)(4)(iii) and (d). If the
claimant’s impairment meets or equals any of the listings and meets the duration requirement,
the Commissioner will find the claimant is disabled. Id. When a claimant’s impairments fail to
meet or equal any of the listings, the Commissioner must assess the claimant’s residual
functional capacity (“RFC”) before proceeding to the fourth and fifth steps of the sequential
analysis. 20 C.F.R. §§ 404.1520(e), 404.1545(a)(5), 416.920(e).
The RFC assessment considers whether “[the claimant’s] impairment(s), and any related
symptoms, such as pain, may cause physical and mental limitations that affect what [the
claimant] can do in a work setting.” 20 C.F.R. §§ 404.1545(a), 416.945. The RFC is “the most
[the claimant] can still do despite [his or her] limitations.” Id. The RFC assessment must be
based on “all of the relevant medical and other evidence” in the case record, including “any
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statements about what [the claimant] can still do that have been provided by medical sources”
and any “descriptions and observations of [the claimant’s] limitations from [his or her]
impairments, including limitations that result from [his or her symptoms], such as pain, provided
by [the claimant] or [other persons].” 20 C.F.R. §§ 404.1545(a)(3), 416.945(a)(3). In addition,
the Commissioner must consider the claimant’s “ability to meet the physical, mental, sensory,
and other requirements of work.” 20 C.F.R. §§ 404.1545(a)(4), 416.945(a)(4). The regulations
provide that:
[w]hen [a claimant] ha[s] severe impairment(s), but [his or her]
symptoms, signs, and laboratory findings do not meet or equal those
of a listed impairment in [the Listings], [the Commissioner] will
consider the limiting effects of all [the claimant’s] impairment(s),
even those that are not severe, in determining [his or her] residual
functional capacity. Pain or other symptoms may cause a limitation
of function beyond that which can be determined on the basis of the
anatomical, physiological or psychological abnormalities
considered alone…In assessing the total limiting effects of [a
claimant’s] impairment(s) and any related symptoms, [the
Commissioner] will consider all of the medical and nonmedical
evidence…
20 C.F.R. §§ 404.1545(e), 416.945(e).
At the fourth step, the Commissioner compares the RFC assessment “with the physical
and mental demands of [the claimant’s] past relevant work.” 20 C.F.R. §§ 404.1520(a)(1)(iv)
and (f), 416.9420(a)(1)(iv) and (f). If the claimant can still do his or her past relevant work, the
claimant is not disabled. Id. If the claimant cannot do his or her past relevant work, the
Commissioner proceeds to the fifth and final step of the sequential analysis. At the fifth step, the
Commissioner considers the RFC assessment “and [the claimant’s] age, education and work
experience to see if [the claimant] can make an adjustment to other work.” 20 C.F.R. §§
404.1520(a)(1)(v) and (g), 416.920(a)(1)(v) and (g). If the claimant can make an adjustment to
other work, the claimant is not disabled. Id. If the claimant cannot make an adjustment to other

6

work, the claimant is disabled. Id. The claimant bears the burden of proving first four (4) steps
of the sequential analysis, while the Commissioner bears the burden at the last step. See
Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012).
In addition to the five-step analysis, additional regulations governing evaluations of the
severity of mental impairments require, at the second and third steps, the reviewing authority “to
determine first whether the claimant has a medically determinable mental impairment, and if so,
to rate the degree of functional limitation resulting from the impairment(s) in four broad function
areas: (1) activities of daily living; (2) social functioning; (3) concentration, persistence, or pace;
and (4) episodes of decompensation” and provide that “if the degree of limitation in each of the
first three areas is rated mild or better, and no episodes of decompensation are identified, then the
reviewing authority generally will conclude that the claimant’s mental impairment is not severe
and will deny benefits.” Kohler, 546 F.3d at 266 (citations omitted). “If the claimant’s mental
impairment is severe, the reviewing authority will first compare the relevant medical findings
and the functional limitation ratings to the criteria of listed mental disorders in order to determine
whether the impairment meets or is equivalent in severity to any listed mental disorder” and “[i]f
so, the claimant will be found to be disabled. If not, the reviewing authority will then assess the
claimant’s residual functional capacity.” Id.
C.

The ALJ Applied the Correct Legal Procedures and the ALJ Decision was
Supported by Substantial Evidence

In denying plaintiff’s application for SSI, the ALJ applied the correct five-step sequential
analysis. Tr. 30-37; see also Morales v. Colvin, No. 13-civ-4302, 2014 WL 7336893, at *10
(S.D.N.Y. Dec. 24, 2014). The ALJ’s decision is also supported by substantial evidence in the
record.

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1.

Step One

The ALJ’s finding at step one that plaintiff had not engaged in substantial gainful activity
since the date of his application (Tr. 30) is supported by record evidence including plaintiff’s
testimony that he last worked in “1999, 2000.” Id. at 49.
2.

Step Two

At step two, the ALJ found that plaintiff had a severe impairment of bilateral
sensorineural hearing loss (Tr. 30), a finding that is supported by substantial evidence, including
notes from Dr. Maulik Shah, M.D. indicating that “an audiogram show[ed] the patient to have
moderate to severe hearing loss bilaterally” and his impression that plaintiff suffered from
“[s]ensorineural hearing loss bilaterally.” Id. at 241. Additionally, the ALJ’s findings at step
two that plaintiff’s obesity, vertigo and depressive disorder were nonsevere impairments (id. at
30-33) were also supported by substantial evidence. In finding that plaintiff’s obesity was not a
severe impairment, the ALJ noted that that plaintiff’s “weight, including the impact on his ability
to ambulate as well as his other body systems” was “considered within the limitations of the
claimant’s residual functional capacity” (id. at 30), but that there was “no evidence of any
specific or quantifiable impact on pulmonary, musculoskleteal, endocrine, or cardiac function.”
Id.; see also Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983) (the ALJ “is entitled to
rely not only on what the record says, but also on what it does not say.”). The ALJ’s finding that
plaintiff’s “medically determinable impairment of vertigo [was] nonserve” (Tr. 31) is supported
by evidence from: Dr. Eric Katz who, in May 2010, diagnosed plaintiff with “long-standing
vertigo and tinnitus after an industrial accident” (Tr. 346) but found that “[a]s for his dizziness
and tinnitus, [plaintiff] started on meclizine, he [had] a recent CT scan of the head per his report
6 months ago that was negative, nonfocal neuro exam, and his symptoms [were] stable” (id.);
evidence from Dr. Shannon Skinner of Maricopa Integrated Health System who noted that
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plaintiff’s dizziness was “controlled with meclizine” (id. at 371); and evidence from Deirdre
Mountjoy, RN MS FNP, a nurse in the practice that treated plaintiff, noting that while plaintiff
“continues to suffer with associated symptoms of vertigo, for which he is taking Meclizine 25mg
3 times a day,” plaintiff’s Meclizine medication was “effective.” Id. at 482.
In finding that plaintiff’s “medically determinable mental impairment of depressive
disorder, not otherwise specified [did] not limit the claimant’s activity to perform basic mental
work activities and [was] therefore nonsevere” (id. at 31), the ALJ applied the “special
technique” for evaluations of the severity of mental impairments. Kohler, 546 F.3d at 265
(citations omitted). After finding that plaintiff had a “medically determinable mental impairment
of depressive disorder” (Tr. 31), the ALJ proceeded to “rate the degree of functional limitation
resulting from the impairment(s) in accordance with paragraph (c),” §404.1520a(b)(2), which
specifies four broad functional areas: (1) activities of daily living; (2) social functioning; (3)
concentration, persistence, or pace; and (4) episodes of decompensation. Kohler, 546 F.3d at
266 (citing 20 C.F.R. § 404.1520a(c)(3)). After finding the plaintiff’s “medically determinable
mental impairments cause mild restriction in activities of daily living, mild difficulties in social
functioning, and mild difficulties with regard to concentration, persistence or pace, and have
resulted in no episodes of decompensation of extended duration” (Tr. 32), the ALJ properly
found that “plaintiff’s medically determinable mental impairment [was] nonsevere.” Tr. (citing
20 C.F.R. § 416.920a(d)(1)); see also Kohler, 546 F.3d at 266 (“if the degree of limitation in
each of the first three areas is rated “mild” or better, and no episodes of decompensation are
identified, then the reviewing authority generally will conclude that the claimant’s mental
impairment is not “severe” and will deny benefits”) (citing § 404.1520a(d)(1)). The ALJ’s
determination that plaintiff’s mental impairment was nonsevere is supported by substantial

9

evidence in the record including normal mental status examinations by treating sources (Tr. 35164, 387-419) as well as the opinions of state consultative examiners. Id. at 253-61, 283-93.
3.

Step Three

At step three, the ALJ considered plaintiff’s impairment “under listing 2.10.” Tr. 33. In
order to meet Listing 2.10, an individual with hearing loss not treated with cochlear
implantation must show either (A) “[a]n average air conduction hearing threshold of 90 decibels
or greater in the better ear and an average bone conduction hearing threshold of 60 decibels or
greater in the better ear,” or (B) “[a] word recognition score of 40 percent or less in the better ear
determined using a standardized list of phonetically balanced monosyllabic words.” 20 C.F.R. pt.
404, subpt. P, app. 1, § 2.10. The ALJ’s finding at step three that plaintiff’s severe impairment
did not “meet or medically equal[] the severity of one of the listed impairments in 20 C.F.R. Part
404, Subpart P, Appendix 1 (20 C.F.R. 416.920(d), 416.925 and 416.926)” was adequately
supported by evidence from Dr. Garcia, a medical consultant, that plaintiff’s hearing limitation
was “[n]ot listing level” (Tr. 298) and the fact that “[n]o treating or examining physician …
recorded findings equivalent in severity to the criteria of any listed impairment, nor does the
evidence show medical findings that are the same or equivalent to those of any listed
impairment.” Id. at 33; see also Perry v. Astrue, No. 3:10-civ-01248, 2011 WL 5006505, at *20
(S.D.W. Va. Oct. 20, 2011) (“Claimant has failed to present evidence to support a finding that
Claimant’s average air conduction hearing score exceeded the threshold score or word
recognition score and, therefore, Claimant has not satisfied Listing 2.10.”).
4.

RFC Assessment

At step four, the ALJ determined that plaintiff had the residual functional capacity to
perform a full range of work at all exertional levels, but with the following nonexertional
limitations: the claimant can hear at the high end of the speech range in terms of decibels and the
10

claimant requires high loudness in order to differentiate speech. Tr. 33. In reaching this
conclusion, the ALJ gave significant weight to the opinions of the state agency medical
consultants who found that plaintiff could perform a range of work that did not require excellent
hearing. Id. at 80-81, 294-98. 2 These opinions were consistent with the objective medical
evidence including the MRI scan of plaintiff’s head showing no internal auditory canal
pathology and no occlusive neuroma (id. at 241-42) and with test results indicating that plaintiff
had a speech reception threshold of eighty (80) decibels on the left side and sixty (60) decibels
on the right side and that plaintiff was able to discriminate words at eighty (80) percent at one
hundred (100) decibels of the right ear and thirty-six (36) percent at one hundred and five (105)
decibels on the left ear. Id. at 248. Medical records from plaintiff’s treating physicians also
supported the ALJ’s RFC assessment: Dr. Shah noted that plaintiff had “moderate to severe
hearing loss bilaterally” (id. at 241) but that an MRI “showed no internal auditory canal
pathology and no occlusive neuroma” (id.) and that plaintiff’s complaint of dizziness did “not
seem to be otologic in cause.” Id.
In accordance with the “treating physician’s rule,” 3 the ALJ considered the opinion of
one of plaintiff’s treating physicians, Dr. Elk, that plaintiff had a medically determinable
physical or mental impairment that prevented him from engaging in substantial gainful activity
(Tr. 486) but gave it little weight because it was “brief, conclusory, and inadequately supported
by clinical findings.” Id. at 36. The ALJ properly accorded Dr. Elk’s opinion little weight

2

The state agency medical consultants also indicated that plaintiff should avoid concentrated
exposure to hazards like heights or where “transient alteration in conscious or dizziness would be
dangerous to claimant and/or others.” Tr. 297.

3

The treating physician’s rule “mandates that the medical opinion of a claimant’s treating
physician is given controlling weight if it is well supported by medical findings and not inconsistent with
other substantial record evidence.” Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

11

because Dr. Elk’s opinion that plaintiff was disabled is “not considered a ‘medical opinion’
under the treating physician’s rule to which controlling weight should be assigned because it
represents an opinion on an issue reserved to the Commissioner” (Earl-Buck v. Barnhart, 414 F.
Supp. 2d 288, 293 (W.D.N.Y. 2006); see also Pope v. Barnhart, 57 F. App’x 897, 899 (2d Cir.
2003); 20 C.F.R. § 404.1527(d)), and because it was inconsistent with the objective medical
evidence, including the hearing examinations and MRI results, and mild mental status
examination findings. See Sizer v. Colvin, 592 F. App’x 46, 47 (2d Cir. 2015) (“ALJ properly
accorded little weight to the non-specialist medical opinion of Appellant’s treating physician
because it was inconsistent with other substantial evidence in the case record and, therefore,
undeserving of controlling weight.”) (citations and quotation marks omitted); Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983) (“the opinion of a treating physician is not binding
if it is contradicted by substantial evidence, and the report of a consultative physician may
constitute such evidence”) (internal citations omitted). The ALJ also properly considered the
opinion of plaintiff’s treating nurse, Deirdre Mountjoy, but accorded her opinion no weight
because she was not an acceptable medical source 4 (Tr. 36) and because her statements were not
supported by the clinical or diagnostic medical evidence in the record. Id. at 37.
The ALJ’s assessment, as part of his RFC determination, that plaintiff suffered from no
physical limitations other than the one nonexertional limitation as to his hearing, and no mental
limitations, was supported by substantial evidence including: normal physical examination
findings (id. at 264-65, 345-46, 371, 477, 479-81); notes from Dr. Skinner indicating she refused

4

“Acceptable medical sources are defined as licensed physicians, psychologists, optometrists,
podiatrists, and qualified speech-language pathologist, but nurse practitioners and physician assistants are
not included among the acceptable medical sources.” Fax v. Comm’r of Soc. Sec., No. 14-civ-00530,
2015 WL 3889621, at *4 (N.D.N.Y. June 24, 2015); see also Genier v. Astrue, 298 Fed. App’x 105, 108
(2d Cir. 2008) (citing 20 C.F.R. § 416.913(a) and (d)(1)).
12

to complete plaintiff’s disability forms because she had “no reason to label him as permanently
disabled” (id. at 371-72) and she “would not be able to justify a permanent and total disability on
medical grounds” (id. at 371); normal neurological examinations (id. at 241, 346); normal mental
status examination (id. at 351-64, 387-419); and the opinions of state consultative examiners that
plaintiff did not have a severe mental impairment (id. at 253-61, 283-93) or any exertional
limitations. Id. at 80, 295; see also Pena v. Comm’r of Soc. Sec., No. 13-civ-7912, 2015 WL
4646765, at *6 (S.D.N.Y. Aug. 4, 2015) (finding ALJ properly assessed plaintiff’s RFC “to
perform a [full] range of work at all exertional levels” because “[plaintiff’s] physical
examinations resulted in normal findings” and “[plaintiff’s] examining physicians did not order
any diagnostic tests to confirm the presence of any neurological disorder”).
In assessing plaintiff’s RFC, the ALJ conducted a proper credibility analysis (Tr. 33-35),
analyzing plaintiff’s testimony concerning his impairments and limitations, including his alleged
deafness, ringing sounds in his ears, dizziness, urinary tract infection, shortness of breath, right
shoulder pain, and depression (id. at 34), and finding that plaintiff’s “medically determinable
impairments could reasonably be expected to cause some of the alleged symptoms; however the
claimant’s statements concerning the intensity, persistence and limiting effects of these
symptoms [were] not credible” (id.) because plaintiff’s testimony was “inconsistent with
objective medical evidence” (id. at 35) and with his activities of daily living. Id. at 34; see also
Burnette v. Colvin, 564 F. App’x 605, 609 (2d Cir. 2014) (“the ALJ acted well within his
discretion in concluding that [plaintiff] was less than credible” where “ALJ found inconsistencies
between [plaintiff’s] statements and the evidence”); Donnelly v. Colvin, No. 13-civ-7244, 2015
WL 1499227, at *15 (S.D.N.Y. Mar. 31, 2015) (finding ALJ properly evaluated plaintiff’s
credibility by “rel[ying] on objective, medical records and [finding] that some of [plaintiff’s]
statements were contradicted by medical records” and “then inferr[ing] those comments were not
13

credible” and analyzing plaintiff’s statements of activities of daily living). The ALJ also
properly “diminishe[d] the claimant’s credibility because substantial evidence in the record
show[ed] that claimant failed to comply with prescribed medications.” Tr. 35. See Seabrook v.
Astrue, No. 11-civ-5642, 2013 WL 163979, at *13 (S.D.N.Y. Jan. 10, 2013), report and
recommendation adopted, No. 11-civ-5642, 2013 WL 1340134 (S.D.N.Y. Mar. 26, 2013) (“One
factor that may impact the claimant’s credibility is a showing that the claimant is not following
the treatment as prescribed and no good reason exists for that failure.”); 20 C.F.R. § 416.930;
Social Security Ruling (“SSR”) 96-7p. The ALJ’s assessment of plaintiff’s RFC is devoid of
legal error and supported by substantial evidence.
5.

Step Four

At step four, the ALJ, relying on “claimant’s documented vocational background, the
claimant’s testimony, and the testimony of the vocational expert” (Tr. 37), found that plaintiff
was capable of performing his past relevant work as a teacher aide and cook helper as generally
performed pursuant to the DOT 5 and as actually performed by the claimant. Tr. 37. “[At] the
fourth stage of the [SSA] inquiry, the claimant has the burden to show an inability to return to
her previous specific job and an inability to perform her past relevant work generally.” Jasinski
v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003) (emphasis in original). “In determining whether a
claimant can perform his or her past relevant work as generally performed, ‘[t]he inquiry…is not
whether a claimant is able to perform the duties of her previous job, but whether the claimant is
able to perform the duties associated with her previous ‘type’ of work.’” Fiedler v. Colvin, 54

5

The Dictionary of Occupational Titles (“DOT”) is “an official publication of the Department of
Labor [and] [i]t is what the SSA uses to evaluate jobs as they are generally performed in the national
economy.” Albano v. Colvin, No. 14-civ-3650, 2015 WL 1782339, at *10 n.1 (E.D.N.Y. Apr. 16, 2015).
(internal quotation marks and citations omitted).

14

F.Supp.3d 205, 216 (E.D.N.Y. 2014) (citing Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir.
2004)).
Here, the ALJ determined, inter alia, that plaintiff was capable of performing past
relevant work as a cook helper, DOT 317.687-010, 6 as generally performed. Tr. 37. According
to the DOT, “a cook helper washes, peels, and cuts vegetables and fruits, and cleans, cuts, and
grinds meats, poultry, and seafood [and]…also helps prepare and measure food items and
ingredients, and stores foods in designated areas.” Petrie v. Astrue, 412 F. App’x 401, 409 (2d
Cir. 2011); see DICOT 317.687-010. The ALJ’s finding that plaintiff could perform his past
work as a cook helper as generally performed pursuant to the DOT (id. at 37) is supported by
substantial evidence in the form of VE Komar’s testimony that someone with similar
impairments as plaintiff could work as a cook helper provided the position did not include
working with diners and taking orders (id. at 62), which demonstrates that plaintiff was “able to
perform the duties associated with [his] previous ‘type’ of work.” Halloran, 362 F.3d at 33
(citation omitted). While plaintiff’s specific past work as a cook helper may have included
“taking orders from residents” (id. at 190), “[t]hat plaintiff may be unable to perform [his]
specific past work because that job required [taking orders] does not mean Plaintiff cannot
perform the job of [cook helper] generally. The ALJ needed only to determine Plaintiff could
perform [his] past work generally to find that [he] was not disabled.” Albano, 2015 WL

6

According to DOT 317.687-010, a cook helper: “assists workers engaged in preparing foods for
hotels, restaurants, or ready-to-serve packages by performing any combination of following duties:
washes, peels, cuts, and seeds vegetables and fruits; cleans, cuts, and grinds meats, poultry, and seafood;
dips food items in crumbs, flour, and batter to bread them; stirs and strains soups and sauces; weighs and
measures designated ingredients; carries pans, kettles, and trays of food to and from work stations, stove,
and refrigerator; stores foods in designated areas, utilizing knowledge of temperature requirements and
food spoilage; cleans work areas, equipment and utensils; segregates and removes garbage, and steamcleans or hoses garbage containers; distributes supplies, utensils, and portable equipment, using
handtruck.”
15

1782339, at *9; see also Fiedler, 54 F. Supp. 3d at 216-17; Grogg v. Comm’r of Soc. Sec., No.
5:11-civ-1381, 2014 WL 1312325, at *13 (N.D.N.Y. Mar. 31, 2014). Therefore, while the ALJ’s
finding that plaintiff was capable of performing his past relevant work as a teacher aide and as a
cook helper as actually performed (Tr. 37) is not supported by substantial evidence, 7 because
“the ALJ did not err in finding that Plaintiff had the RFC to perform [his] past relevant work as a
[cook helper] as it is normally performed in the national economy, the ALJ’s error in finding [he]
could perform [his] past work as [he] had actually performed it is harmless error.” Hayes v.
Colvin, No. 11-civ-0835, 2014 WL 2168082, at *8 (W.D.N.Y. May 23, 2014); see generally
NLRB v. American Geri–Care, Inc., 697 F.2d 56, 64 (2d Cir. 1982). Therefore, the “ALJ’s
finding that the Plaintiff could perform [his] past relevant work as a [cook helper] as generally
performed was sufficient to negate a finding of disability at step four.” Fiedler, 54 F. Supp. 3d at
217 (citing Grogg, 2014 WL 1312325, at *13).
III.

CONCLUSION
For the foregoing reasons, defendant’s motion for judgment on the pleadings pursuant to

Rule 12(c) of the Federal Rules of Civil Procedure is granted and the Commissioner’s decision
denying plaintiff’s application for SSI is affirmed. The Clerk of the Court shall close this case.
SO ORDERED.
s/ Sandra J. Feuerstein
Sandra J. Feuerstein
United States District Judge
Dated: August 31, 2015
Central Islip, New York
7

The ALJ’s finding that plaintiff was capable of performing his past relevant work as a teacher aid
is not supported by substantial evidence because VE Komar testified that someone with plaintiff’s
hearing impairments “could not work as a teacher aide.” Id. at 61-62. The ALJ’s finding that plaintiff
was capable of his past relevant work as a cook helper as actually performed by plaintiff is not supported
by substantial evidence because plaintiff’s work as a cook helper included taking orders from residents
(Tr. 190) and VE Komar testified that a person with similar impairments as plaintiff could work as a cook
helper generally but would not be able to perform a job that entailed “taking orders.” Id. at 62.
16