Burrows v. Colvin

Filing 21

DECISION AND ORDER accepting and adopting # 19 Magistrate Judge Carter's Report and Recommendation in its entirety. The Defendant's motion for judgment on the pleadings is granted, and the Plaintiff's motion for judgment on the pleadings is denied. The Commissioner's determination is affirmed, and the Plaintiff's Complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 3/28/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________________
MICHAEL BURROWS,
Plaintiff,
3:15-CV-1266
(GTS/WBC)

v.
CAROLYN W. COLVIN, Comm’r of Soc. Sec.,1
Defendant.
________________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Counsel for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, New York 13761

PETER A. GORTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

FERGUS J. KAISER, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by Michael Burrows (“Plaintiff”) against
the Commissioner of Social Security (“Defendant” or “Commissioner”) pursuant to 42 U.S.C. §
405(g) seeking Social Security benefits, are the following: (1) the Report-Recommendation of
United States Magistrate Judge William B. Mitchell Carter, recommending that the

1

Because Nancy A. Berryhill is now the Acting Commissioner of Social Security,
the Clerk of the Court is directed to substitute her for Acting Commissioner of Social Security
Carolyn W. Colvin as the Defendant in this action, pursuant to Fed. R. Civ. P. 25(d).

Commissioner’s motion for judgment on the pleadings be granted, that Plaintiff’s motion for
judgment on the pleadings be denied, that the Commissioner's decision be affirmed, and that
Plaintiff's Complaint be dismissed; and (2) Plaintiff’s Objection to the Report-Recommendation.
(Dkt. Nos. 19, 20.) For the reasons stated below, the Report-Recommendation is adopted, the
Commissioner's motion for judgment on the pleadings is granted, Plaintiff’s motion for judgment
on the pleadings is denied, the Commissioner's decision is affirmed, and Plaintiff’s Complaint is
dismissed.
I.

RELEVANT BACKGROUND
A.

Factual Background and Procedural History

Because this Decision and Order is intended primarily for the review of the parties, and
they have not objected to Parts I.A., I.B., and I.C. of the Report-Recommendation, which
correctly recite the factual background and procedural history of this action, the Court will not
repeat that information in this Decision and Order, but will respectfully refer the reader to Parts
I.A., I.B. and I.C. of the Report-Recommendation. (Dkt. No. 19, at Parts I.A., I.B., and I.C.)
B.

Parties’ Arguments on Their Motions for Judgment on the Pleadings
1.

Plaintiff’s Brief

Generally, in his brief in support of his motion, Plaintiff asserts four arguments: (1) the
Administrative Law Judge's ("ALJ") mental Residual Functional Capacity ("RFC")
determination was not supported by substantial evidence because the opinions of psychologist
Robert Russell, Ed.D., consultative examining psychologist Cheryl Loomis, Ph.D., and licensed
clinical social worker Lydia Smith support the conclusion that he suffers a substantial loss in one
or more of the basic mental demands of work; (2) although the ALJ found that Plaintiff's

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borderline intellectual functioning constituted a severe impairment, the ALJ failed to consider
the limitations resulting from this impairment in formulating Plaintiff's mental RFC and in the
hypothetical question posed to the vocational expert ("VE")2; (3) the ALJ failed to consider
Plaintiff's limitations in dealing with stress and maintaining attention and concentration in
formulating Plaintiff's mental RFC determination and in the hypothetical given to the VE; and
(4) the ALJ's determination at Step Five is not supported by substantial evidence because, as
discussed above, the ALJ erred in formulating his mental RFC, and the hypothetical question
posed to the VE–which was based on the erroneous RFC–did not accurately reflect Plaintiff's
impairments. (Dkt. No. 9, at Points I-IV.)

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Specifically, within this argument, Plaintiff argues as follows: (a) the ALJ erred in
according Dr. Russell's opinions "reduced weight" (rather than controlling weight) because (i)
the ALJ's conclusion that Dr. Russell's opinions were not consistent with the record evidence,
including his examination and testing, is "simply wrong," (ii) neither Dr. Loomis nor state
agency medical consultant L. Blackwell, Ph.D.–whose opinions the ALJ compared with Dr.
Russell's opinions–performed intellectual testing or had the benefit of Dr. Russell's intellectual
assessments in formulating their opinions, (iii) the ALJ's finding that Dr. Russell's opinions were
inconsistent with Dr. Loomis's opinions is "disingenuous," given that Dr. Loomis opined that
Plaintiff cannot make appropriate decisions, deal with stress, or maintain attention and
concentration, and the ALJ improperly rejected this portion of Dr. Loomis's opinion, and (iv)
based on the factors contained in 20 C.F.R. § 404.1527(c), Dr. Russell's opinions should have
been given at least significant weight; (b) the ALJ erred in disregarding the portions of Dr.
Loomis's opinions in which he concluded that Plaintiff cannot make appropriate decisions, deal
with stress, or maintain attention and concentration, because these opinions were supported by
the record evidence, including Dr. Loomis's own testing; (c) to the extent that Dr. Loomis's
report contained internal inconsistencies, the ALJ erred in failing to re-contact Dr. Loomis for
clarification; and (d) the ALJ erred in according the opinion of Dr. Blackwell, a state agency
consultant, significant weight, because Dr. Blackwell did not treat or examine Plaintiff, her
opinion was rendered without the benefit of records after January 2013 or results from testing
performed by Dr. Russell and Dr. Loomis, and her opinion was inconsistent with the opinions of
the examining providers of record. (Dkt. No. 9 at 8-16.)
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2.

Defendant’s Brief

Generally, in her brief in support of her motion, Defendant asserts the following three
arguments: (1) the ALJ’s RFC determination is supported by substantial evidence; (2) the ALJ
properly assessed the medical opinions of Dr. Russell, Dr. Loomis, and Dr. Blackwell by
weighing the evidentiary record as a whole, and Plaintiff's arguments with respect to the ALJ's
assessments constitute mere disagreement with the ALJ's consideration of conflicting evidence;
and (3) because the ALJ's RFC determination was supported by substantial evidence, the ALJ’s
hypothetical question at Step Five (which tracked his RFC determination) properly accounted for
Plaintiff's impairments and yielded testimony from the VE constituting substantial evidence.
(Dkt. No. 17, at Points IV-VI.)
C.

Magistrate Judge Carter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Carter rendered the
following three findings of fact and conclusions of law: (1) the ALJ committed no error in his
RFC determination because (a) he properly found that Dr. Russell's opinions with respect to
Plaintiff's limitations (which, as the ALJ noted, were set forth in a Department of Social Services
form) were inconsistent with other record evidence, including his own treatment notes reflecting
that Plaintiff's condition improved and that his case was eventually closed, (b) although Dr.
Loomis and Dr. Blackwell did not have the benefit of intellectual testing performed by Dr.
Russell when they formulated their opinions, the ALJ did not err in comparing these opinions,
given that both Dr. Loomis and Dr. Blackwell also found that Plaintiff had below-average
intellectual functioning, (c) he properly concluded that some aspects of Dr. Russell's opinion was
inconsistent with Dr. Loomis's opinion, and his thorough review of the record does not support

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the conclusion that his assessments of these opinions were "disingenuous," (d) he did not err in
declining to adopt Dr. Loomis's opinions that Plaintiff could not make appropriate decisions,
deal with stress, and maintain attention and concentration, given that (i) Dr. Loomis noted on
examination that Plaintiff's attention and concentration were only mildly impaired, and (ii) Dr.
Loomis noted that Plaintiff's symptoms were not significant enough to interfere with his ability
to function on a daily basis, (e) he did not erroneously fail to re-contact Dr. Loomis, given that
other substantial record evidence properly supported his determinations, and (f) he did not err in
affording Dr. Blackwell's opinion significant weight; (2) the ALJ's discussion of the record
evidence (including Plaintiff's intellectual disability and limitations, the fact that Plaintiff held a
job for many years and obtained a GED, and a review of Dr. Loomis's opinion, which took into
account Plaintiff's intellectual functioning) demonstrates that he properly considered Plaintiff's
intellectual functioning; and (3) the ALJ's RFC determination and hypothetical question posed to
the VE properly accounted for Plaintiff's limitations, including those in maintaining attention and
concentration and dealing with stress, and, as a result, the ALJ's Step Five determination was
supported by substantial evidence. (Dkt. No. 19, at Part IV.)
D.

Plaintiff’s Objection to the Report-Recommendation

Generally, in his Objection to the Report-Recommendation, Plaintiff asserts the
following seven arguments: (1) the ALJ (and Magistrate Judge) incorrectly concluded that Dr.
Russell's RFC assessment that Plaintiff cannot work was not corroborated by his treatment notes
and objective IQ testing; (2) the ALJ (and Magistrate Judge) erred in finding that Dr. Russell's

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opinion was inconsistent with Dr. Loomis's opinion3 because (a) these opinions were, in fact,
largely consistent, and (b) in finding the opinions inconsistent, the ALJ did not consider Dr.
Loomis's opinion in full, but rather compared only that portion that he credited with Dr. Russell's
opinion; (3) the Magistrate Judge erred in concluding that, by merely noting that Plaintiff
"appeared" to be functioning at a below-average level, Dr. Loomis (and, by extension, Dr.
Blackwell) appreciated and properly accounted for Plaintiff's borderline intellectual functioning
in formulating her opinion; (4) the ALJ (and the Magistrate Judge) erred in finding that Dr.
Loomis's opinion provided substantial contrary evidence to justify affording Dr. Russell's
opinion reduced weight (as opposed to controlling or significant weight) because (a) as noted
above, Dr. Loomis's opinion was largely consistent with Dr. Russell's opinion, (b) as noted
above, Dr. Loomis did not appreciate the limitations resulting from Plaintiff's intellectual
functioning, (c) to the extent that Dr. Loomis's opinion contained inconsistences, the ALJ
arbitrarily credited some portions as opposed to other portions, and the ALJ should have recontacted Dr. Loomis to resolve the inconsistencies, (d) the fact that Dr. Loomis opined that
Plaintiff can perform simple tasks (a work skill level) is not inconsistent with her conclusion that
Plaintiff cannot maintain attention and concentration (a limitation in the ability to stay on task);
(5) because Dr. Blackwell "essentially adopts Dr. Loomis's report," Plaintiff's arguments
concerning Dr. Loomis's opinion also apply to Dr. Blackwell's opinion, (6) the Magistrate Judge

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Specifically, Plaintiff argues that Dr. Loomis's conclusions that Plaintiff "cannot
maintain attention and concentration," "cannot perform context tasks independently or with
supervision," "cannot make appropriate decisions," and "cannot appropriately deal with stress"
(Tr. 266) "directly support" Dr. Russell's opinion that Plaintiff is "very limited" in his abilities to
maintain attention/concentration, interact appropriately with others, and function in a work
setting at a consistent pace. (Dkt. No. 20 at 4.)
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erred in finding that the ALJ properly accounted for Plaintiff's intellectual and cognitive
impairments in determining Plaintiff's RFC because the ALJ "entirely omit[ted] discussion of"
these impairments; and (7) the Magistrate Judge improperly applied McIntyre v. Colvin, 758
F.3d 146 (2d Cir. 2014), because Dr. Loomis did not opine that Plaintiff's ability to work was
unaffected by his inability to maintain attention and concentration, and the record does not
contain substantial evidence supporting such a conclusion. (Dkt. No. 20, at Points I-VII.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard Governing Review of Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).4
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first

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See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
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instance.5 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007

5

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
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(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.6 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.7
After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard Governing Judicial Review of Defendant’s Decision

Because the parties have not objected to Parts III.A. and III.B. of the ReportRecommendation, which correctly recites the legal standard governing judicial review of

6

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
7

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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Defendant's decision, that standard is incorporated by reference in this Decision and Order,
which (again) is intended primarily for the review of the parties. (Dkt. No. 19, at Parts III.A. and
III.B.)
III.

ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge

Carter's Report-Recommendation, the Court concludes that Magistrate Judge Carter's
Report-Recommendation is correct in all respects. (Dkt. No. 19.) Magistrate Judge Carter
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. (Id.) As a result, the Court accepts and adopts the Report-Recommendation. To
those reasons, the Court adds the following analysis.
Plaintiff's first six arguments are, in essence, a challenge to the ReportRecommendation's conclusions that the ALJ (a) correctly applied the treating physician rule in
affording reduced weight to Dr. Russell's opinion and in concluding that the record contained
substantial contrary evidence (including Plaintiff's reported daily activities and Dr. Russell's own
treatment notes, which reflected that Plaintiff showed improvement and was ultimately
discharged from treatment), and (b) properly considered the evidence and assessed the opinions
of Dr. Russell, Dr. Loomis, and Dr. Blackwell in formulating Plaintiff's mental RFC.8 (Dkt. No.
20, Points I-VI.) As a result, the vast majority of Plaintiff's challenge merely reiterates
arguments presented in his brief. (Compare Dkt. No. 20 [Plf.'s Obj.] with Dkt. No. 9 [Plf.'s

8

The Court notes that in neither his brief nor his objections does Plaintiff challenge
the ALJ's findings of fact or conclusions of law with respect to (1) the physical component of the
ALJ's RFC determination, or (2) the credibility to be afforded to Plaintiff's subjective complaints
(which the ALJ found not fully credible [Tr. 19]).
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Brief].) As a result, these findings of fact and conclusions of law are subject to only a clear-error
review. See, supra, Part II.A. of this Decision and Order. The Court finds that they survive that
review, for the reasons stated in the Report-Recommendation (and Defendant’s brief). See,
supra, Parts I.B. and I.C. of this Decision and Order. In the alternative, the Court concludes that
the Magistrate Judge's findings of fact and conclusions of law would also survive de
novo review. Simply stated, although the record contained some conflicting evidence with
regard to the extent of Plaintiff's mental impairments, under the circumstances, the ALJ's
weighing of that conflicting evidence and determination of Plaintiff's RFC does not warrant
remand.9
Similarly, Plaintiff's seventh argument merely rehashes arguments presented in his brief.
(Compare Dkt. No. 20 [Plf.'s Obj.] with Dkt. No. 9 [Plf.'s Brief].) As a result, the Magistrate
Judge's findings of fact and conclusions of law with respect to this argument (i.e., that substantial
evidence supported the ALJ's RFC determination, "despite [Plaintiff's] limitations in

9

The Court notes that, to the extent that Plaintiff argues that "the issue[] of work
skill level (i.e., simple tasks)" is an issue "distinct" from that of maintaining attention and
concentration, his argument is well-taken. (Dkt. No. 20 at 9.) However, the ALJ adequately
explained his basis for concluding that the restrictiveness of certain of Dr. Loomis's
characterizations in his medical source statement (i.e., that Plaintiff "cannot maintain attention
and concentration," "cannot perform complex tasks independently or with supervision," "cannot
make appropriate decisions, and "cannot appropriately deal with stress") was inconsistent with
other record substantial evidence, including Dr. Loomis's mental status examination (in which he
opined, inter alia, that Plaintiff's ability to maintain attention and concentration was mildly
impaired). (Tr. 21.) Accordingly, the Court cannot conclude that, in determining Plaintiff's
RFC, the ALJ conflated the issues of work skill level and the ability to maintain attention and
concentration. See generally, e.g., Pough v. Comm'r of Soc. Sec., 10-CV-1547, 2012 WL
4490892, at *6 (N.D.N.Y. Sept. 28, 2012) (Treece, M.J.) (concluding that the ALJ properly
accorded little weight to a state agency consultative examining psychiatrist because it was both
internally inconsistent with the psychiatrist's own mental status examination and inconsistent
with treatment notes and other record evidence).
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concentration, persistence, and pace, and any limitation in dealing with stress" [Dkt .No. 19 at
19]), are subject to only a clear-error review, and the Court concludes that they survive that
review for the reasons stated in the Report-Recommendation (and Defendant’s brief). See,
supra, Parts I.B. and I.C. of this Decision and Order. With respect to this argument, the Court
would add only two points.
First, "Step Four findings need only 'afford an adequate basis for meaningful judicial
review, apply the proper legal standards, and be supported by substantial evidence such that
additional analysis would be unnecessary or superfluous.'" McIntyre v. Colvin, 758 F.3d 146,
150 (2d Cir. 2014) (quoting Chichocki v. Astrue, 729 F.3d 172, 177 [2d Cir. 2013]). As more
fully set forth in the Report-Recommendation, Defendant's brief, and the ALJ's decision, at Step
Four, the ALJ thoroughly reviewed the record evidence, including (1) Plaintiff's testimony
regarding his subjective complaints, mental health treatment, daily activities and hobbies, and
work history (which terminated because of a physical injury, and not a mental impairment), (2)
mental health treatment notes and records, (3) the opinions of Dr. Russell, Dr. Loomis, and Dr.
Blackwell, and (4) the medical source statement of Smith, a licensed clinical social worker. (Tr.
18-22.) Although the ALJ's RFC determination did not explicitly include certain non-exertional
functional limitations, it provided an adequate basis for review and was supported by substantial
evidence.
Second, although the ALJ's hypothetical question to the VE (which tracked the RFC
determination)10 also did not make specific mention of Plaintiff's limitations with respect to

10

The hypothetical question that the ALJ posed to the VE was as follows:
I'd like you to consider a person of the same age, the same
12

maintaining attention and concentration, the ALJ's Step Five determination was supported by
substantial evidence.11 "[A]n ALJ's failure to incorporate non-exertional imitations in a
hypothetical (that is otherwise supported by evidence in the record) is harmless error if (1)
'medical evidence demonstrates that a claimant can engage in simple, routine tasks of skilled or
unskilled work despite limitations in concentration, persistence, and pace,' and the challenged
hypothetical is limited 'to include only unskilled work,' or (2) the hypothetical 'otherwise
implicitly account[ed] for a claimant's limitations in concentration, persistence, and pace[.]'"
McIntyre v. Colvin, 758 F.3d 146, 152 (2d Cir. 2014) (quoting Winschel v. Comm'r of Soc. Sec.,
631 F.3d 1176, 1180 [11th Cir. 2011]). Here, the Court can find no clear error (or any error) in

vocational background as the claimant; he has GED, no other
experience except for those two jobs that I've listed. I want you to
assume that
this person is limited to the full range of medium work, so he could
perform work at the medium, light, or sedentary level. He's
capable of the essential tasks of unskilled work, however, can have
no more than occasional social contact with co-workers and
supervisors, but can have frequent contact with the general public.
Would such a person be able to perform any of the claimant's past
work[?]
(Tr. 67.)
11

At Step Three, the ALJ found that Plaintiff had moderate difficulties with regard
to concentration, persistence, or pace. (Tr. 17.) In support of this finding, the ALJ explained
that (1) Plaintiff's treatment notes reflected that he "consistently reported stress related to his
girlfriend, parents, and children," (2) Plaintiff obtained his GED, but had a history of special
education, (3) Plaintiff obtained a full-scale IQ score of 71, and (4) Plaintiff's hobbies included
watching television, performing research on the internet, and using computers and cellular
phones. (Id.) In determining Plaintiff's RFC, the ALJ determined that Plaintiff is "limited to
unskilled work with no more than occasional social contact with co-workers and supervisors and
frequent social contact with the general public." (Tr. 18.) In his brief, Plaintiff argued that the
RFC limiting him to unskilled work was insufficient to account for his moderate difficulties
maintaining attention and concentration and dealing with stress. (Dkt. No. 9 at 16-17.)
13

Magistrate Judge Carter's conclusion that the ALJ's determination that Plaintiff can perform
unskilled work, as well as the ALJ's similarly limited hypothetical question to the VE, was
supported by substantial evidence.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 19) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 9) is
DENIED; and it is further
ORDERED that the Commissioner’s decision is AFFIRMED and Plaintiff’s Complaint
(Dkt. No. 1) is DISMISSED.
Dated: March 28, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge

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