Sipe v. Astrue

Filing 14

DECISION AND ORDER denying pltf's motion for judgment on the pleadings, granting deft's motion for judgment on the pleadings; affirming hearing officer's decision denying disability benefits, and dismissing complaint. Signed by Judge William G. Young on 7/2/12. (cbm )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
__________________________________
WAYNE H. SIPE,
Plaintiff,
v.

09-cv-01353
(WGY)

MICHAEL J. ASTRUE,
Commissioner, Social Security
Administration,
Defendant.
__________________________________
WILLIAM G. YOUNG, United States District Judge1
DECISION and ORDER
I.

INTRODUCTION
Wayne H. Sipe (“Sipe”) brings this action pursuant to

section 205(g) of the Social Security Act, 42 U.S.C. § 405(g),
seeking judicial review of the final decision of the Commissioner
of Social Security (the “Commissioner”).

Sipe challenges the

decision of the Administrative Law Judge (the “hearing officer”)
denying his application for Supplemental Security Income (“SSI”)
benefits.

Sipe requests this Court grant his motion for judgment

on the pleadings and remand this case to the Commissioner for
further proceedings.

Pl.’s Mem. Law (“Sipe Mem.”), ECF No. 9.

The Commissioner requests this Court affirm the hearing officer’s
1

Of the District of Massachusetts sitting by designation.
1

decision and grant his motion for judgment on the pleadings.
Def.’s Mem. Law Supp. Mot. J. Pleadings, ECF No. 11.
A.

Procedural Posture

On February 16, 2006, Sipe filed an application for SSI
benefits, alleging disability beginning December 1, 1996.
R. 17.

Admin.

Sipe has filed three previous applications for benefits:

first, September 1, 1994, which resulted in an unfavorable
decision dated May 10, 1995; second, December 13, 1996, which was
dismissed on December 24, 1997; and third, December 9, 2003,
which was initially denied on April 8, 2004, then denied at the
hearing level on April 27, 2005.

Id.

The current application

was filed within two years after the April 8, 2004, denial,
therefore the December 9, 2003, application could be reopened if
new and material evidence or other good cause was shown.

Id.

The hearing officer determined that because the Administrative
Record included new and material evidence (a school
psychologist’s report), the December 9, 2003, application would
be reopened to consider evidence of Sipe’s condition on and after
December 9, 2003.

Id.

Sipe’s February 16, 2006, application was denied on April
25, 2006, and Sipe filed a timely written request for hearing on
May 11, 2006.

Id.

Sipe testified at a hearing held on March 18,

2008, and the Administrative Record was held open until April 1,
2008.

Id.

The hearing officer issued an unfavorable decision on

2

August 29, 2008.

Id. at 26.

Sipe then filed a timely request

for review, id. at 12, which was denied by the Appeals Council on
October 23, 2009, id. at 6-9.

On December 3, 2009, Sipe filed

the present action with this Court to review the decision of the
Commissioner pursuant to section 205(g) of the Social Security
Act.

Compl. 1, ECF No. 1.
B.

Factual Background
Sipe was born in 1977.

Admin. R. 265.

He started

using alcohol and drugs when he was seven years old and smokes
two packs of cigarettes a day.

Id. at 266.

He was arrested for

armed robbery, assault, gun charges, and an escape attempt in
1996.

Id. at 266, 404.

He spent six and a half years in prison,

and spent an additional five months on parole.

Id. at 266.

Sipe

has between a ninth and tenth grade education, id. at 402, but
received vocational training while incarcerated, id. at 403.
is able to read and write “somewhat.”

Id.

He

His prior employment

includes fast-food restaurants, security, and some labor work.
Id. at 265.
impairments.
1.

Sipe has a history of both physical and mental
Id. at 265-66.
Physical Impairments

Sipe was diagnosed with human immunodeficiency virus (“HIV”)
in 1996.

Id. at 333.

According to Frederick B. Rose, M.D. (“Dr.

Rose”), an HIV physician, Sipe “has most remarkable viral
suppression and climb in CD4 count on no antiretroviral therapy.”
3

Id. at 327.

Because of Sipe’s improvement, Dr. Rose could not

support Sipe in his request for disability benefits.

Id.

On December 15, 2005, Sipe saw Lisa Kaufman, M.D. (“Dr.
Kaufman”), complaining of chronic pain in his legs, shoulders,
and back.

Id. at 263.

Dr. Kaufman noted that Sipe was alert,

oriented, and in a pleasant mood with no acute distress.
264.

Id. at

Dr. Kaufman noted a questionable diagnosis of fibromyalgia

and restricted Sipe to light activity and part-time work until he
attended rehabilitation.

Id.

Prior to this appointment, Dr.

Rose had provided Sipe with an appointment to see a
rheumatologist, id. at 328, which he did not attend, id. at 263.
On February 13, 2006, Sipe sought further treatment for his
worsening leg pain.

Id. at 260.

Sipe saw Megan A. Khosla, M.D.

(“Dr. Khosla”), who performed several tests but could not
determine the cause of Sipe’s neuropathy.

Id. at 261-62.

The

following day, on February 14, 2006, Sipe saw rheumatologist Paul
E. Phillips, M.D. (“Dr. Phillips”).

Id. at 257.

After a

physical examination, Dr. Phillips found that Sipe’s hip pain
could not be explained by musculoskeletal examination, it was not
corroborated to any anatomic structures, and he found “no organic
reason for [Sipe] to have a pain of this intensity.”

Id. at 258.

Dr. Phillips also found no evidence of inflammatory myosotis or
inflammatory arthritis.

Id.

On April 19, 2006, a Physical Residual Functional Capacity

4

Assessment was completed which found Sipe could lift ten pounds
occasionally and less than ten pounds frequently, stand and walk
at least two hours in an eight hour workday, and sit about six
hours in an eight hour workday.

Id. at 276-81.

On February 15, 2008, Satinder Singh, M.D. (“Dr. Singh”) and
Debra Buchanan, M.D. (“Dr. Buchanan”) completed a Medical Source
Statement indicating that Sipe’s physical impairments were
frequently severe enough to interfere with the attention and
concentration necessary to perform simple work tasks, but
concluded Sipe could sit for about four hours in an eight hour
workday, stand or walk about four hours in an eight hour workday,
and lift twenty pounds frequently.
2.

Id. at 300-02.

Mental Impairments

In 1991, at age 14, Sipe was evaluated by Cortland City
School District psychologist Marin Vieweg (“Vieweg”).
309.

Id. at

Vieweg administered several tests, including the Wechsler

Intelligence Scale for Children - Third Edition (“IQ Test”).
Sipe previously had been given IQ Tests in 1984 and 1988.
306.

Id. at

In 1991, according to the report,
[Sipe] obtained a Full Scale IQ of 77, suggesting that,
at the 90% confidence level, his IQ falls within the
range of 73 to 83, and that he functions within the
borderline range of cognitive abilities. [Sipe]’s Verbal
IQ was 71 (67 to 78) and his Performance IQ was 89 (83 to
97). [Sipe]’s Verbal IQ was within the borderline range,
while his Performance IQ was in the low average to
average range.

Id.

Vieweg recommended that Sipe’s classification should be
5

Id.

changed to Learning Disabled.

Id. at 309.

On March 21, 2006, Sipe went for a consultative evaluation
with Kristen Barry, Ph.D. (“Dr. Barry”).

Id. at 265.

Dr. Barry

evaluated Sipe and noted that his overall manner of relating and
social skills were adequate, his dress was neat and casual, he
exhibited good hygiene and grooming, he had normal gait, posture,
and motor behavior, and he was able to maintain appropriate eye
contact.

Id. at 267.

Dr. Barry found that Sipe was able to do

simple calculations, but struggled with serial threes, and was
unable to do serial sevens.

Sipe was able to recall a four-

Id.

digit number forward and a two-digit number backward and Dr.
Barry estimated his intellectual functioning to be around the
borderline range.

Id.

Dr. Barry stated that Sipe was able to

dress, bathe, and groom himself, but noted that Sipe claimed that
his pain limited his ability to cook, clean, or do laundry.
at 268.

Id.

Dr. Barry concluded that Sipe was able to follow and

understand very simple directions and instructions, should be
able to perform some simple rote tasks, but may have difficulty
with any complex tasks or directions.

Id.

Dr. Barry diagnosed

Sipe with impulse control disorder, but ruled out mild mental
retardation.

Id.

On April 21, 2006, a Mental Residual Functional Capacity
Assessment was completed by Ed Kamin, Ph.D. (“Dr. Kamin”).
at 282.

Id.

In the assessment, Dr. Kamin found Sipe was moderately

6

limited in his ability to: understand and remember detailed
instructions; carry out detailed instructions; maintain attention
and concentration for extended periods; perform activities within
a schedule, maintain regular attendance, and be punctual with
customary tolerances; work in coordination with or proximity to
others without being distracted by them; complete a normal
workday and workweek without interruptions from psychologically
based symptoms and to perform at a consistent pace without
unreasonable number and length of rest periods; interact
appropriately with the general public; accept instructions and
respond appropriately to criticism from supervisors; get along
with coworkers or peers without distracting them or exhibiting
behavioral extremes; maintain socially appropriate behavior and
adhere to basic standards of neatness and cleanliness; respond
appropriately to changes in the work setting; and set realistic
goals or make plans independently of others.

Id. at 282-83.

In the Psychiatric Review Technique Form, Dr. Kamin listed
only Personality Disorder and Substance Addiction Disorder as the
categories upon which the medical dispositions were based.
at 286.

Dr. Kamin did not list mental retardation.

Id.

Id.
Dr.

Kamin indicated mild restrictions on the activities of daily
living, moderate difficulties in maintaining social function, and
moderate difficulties in maintaining concentration, persistence
or pace, with insufficient evidence to assess the degree of

7

repeated episodes of deterioration.
3.

Id. at 296.

Testimony

On March 18, 2008, Sipe attended a hearing regarding SSI
benefits.

Id. at 393.

Sipe described his criminal history and

limited prior work history.

Id. at 404-08.

He described the

location and intensity of his physical pain as ranging from a
seven to a ten on a one to ten scale.

Id. at 409-20.

He also

stated that he can lift up to 75 pounds occasionally and 20
pounds more frequently.

Id. at 409.

He stated he is able to use

his hands, tie his shoes, write, eat, dress, shower, shave, cook,
clean, wash dishes, do laundry, sweep the floor, and cut the
grass using a push mower.

Id. at 410-12.

He stated that he

lives with his girlfriend and spends time with his girlfriend’s
three children, taking the two year-old daughter to the park and
helping to take care of her.

Id. at 413-14.

Sipe described himself as having a slight temper because he
does not like people standing over his shoulder.

Id. at 414.

Despite this, he believes he gets along with people pretty well.
Id.

He further stated that he does not have mood swings and is

not depressed, but does get cranky once in a while.

Id. at 423.

He stated that he spends time looking for work, id. at 413, and
would rather work if he could, id. at 409.2
2

The record and the hearing officer’s decision also contains
visits by Sipe to doctors and other medical professionals not
specifically mentioned herein. See id. at 23-25. These records
8

II.

LEGAL STANDARD
Federal district courts “have the power to enter, upon the

pleadings and transcript of record, a judgment affirming,
modifying, or reversing the decision of the Commissioner of
Social Security, with or without remanding the cause for a
rehearing.”

42 U.S.C. § 405(g); Laven v. Astrue, No. 1:10-CV-

01360(NPM), 2011 WL 6318360 (N.D.N.Y. Dec. 15, 2011).
A.

Standard of Review

Under 42 U.S.C. § 405(g), a district court has the power to
affirm, modify, or reverse a decision of the Commissioner.
Federal district courts have the same standard of review for
social security benefits as the court of appeals.

Perez v.

Chater, 77 F.3d 41, 46 (2d Cir. 1996) (citing Rivera v. Sullivan,
923 F.2d 964, 967 (2d Cir. 1991)).

In general, the factual

findings of the hearing officer are conclusive unless they are
not supported by substantial evidence.

Diaz v. Shalala, 59 F.3d

307, 312 (2d Cir. 1995) (citing 42 U.S.C. § 405(g)).

Legal

decisions are reviewed de novo, and “where there is a reasonable
basis for doubting whether the Commissioner applied the
appropriate legal standards, even if the ultimate decision may be
arguabl[y] supported by substantial evidence, the Commissioner’s
decision may not be affirmed.”

Martone v. Apfel, 70 F. Supp. 2d

contain medical history and evaluations consistent with those
taken and completed by the medical professionals discussed above.
9

145, 148 (N.D.N.Y. 1999) (citing Johnson v. Bowen, 817 F.3d 983,
986 (2d Cir. 1987)).
B.

Social Security Disability Standard

An individual is considered disabled if 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 12
months.”

42 U.S.C. § 423(d)(1)(A).

The Social Security Administration has promulgated a
five-step sequential analysis to determine whether a claimant is
disabled.

See 20 C.F.R. § 404.1520.

The hearing officer must

determine: (1) whether the claimant is engaged in substantial
gainful activity; (2) whether the claimant has a severe
impairment; (3) whether the impairment meets or medically equals
an impairment listed under 20 C.F.R. Part 404, Subpart P,
Appendix 1, and meets the duration requirement; (4) whether the
claimant has the residual functional capacity to perform his past
relevant work; and (5) whether the impairment prevents the
claimant from doing any other work considering the claimant’s
age, education, and work experience.

Id.

The claimant bears the burden of proof on the first four
steps, while the Commissioner bears the burden on the last step.
Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008).

10

The steps

ought be followed in order.

20 C.F.R. § § 404.1520(a),

416.920(a)(4).
III.

THE HEARING OFFICER’S DECISION
The hearing officer first determined that Sipe had not

engaged in substantial gainful activity since December 9, 2003.
Admin. R. 19.

The hearing officer next found that Sipe’s

borderline intellectual functioning, impulse control disorder,
history of substance addiction disorder and depression, and
history of peripheral neuropathy were severe impairments that did
not meet or equal those listed in the regulations.

Id. at 19-22.

Subsequently, the hearing officer determined that Sipe could lift
or carry ten pounds occasionally, frequently sit for six hours in
an eight hour workday, stand or walk for two hours in an eight
hour workday, and engage in postural activities occasionally.
Id. at 22.
Further, the hearing officer assessed Sipe’s mental residual
functional capacity finding that Sipe could perform simple and
some detailed tasks, respond appropriately to ordinary
supervision and interactions with coworkers and ordinary work
situations, and deal with changes in a routine work setting.

Id.

The hearing officer found that, while Sipe can be in the presence
of the public, he cannot interact appropriately with the general
public.

Id.

Sipe has no past relevant work history, so the

process reached step five.

Id. at 25.

11

The hearing officer,

considering Sipe’s age, education, work experience, and residual
functional capacity, concluded that there are jobs that exist in
significant numbers in the national economy that Sipe could
perform.

Id.

Accordingly, the hearing officer found that Sipe

was not disabled.
IV.

Id. at 26.

ANALYSIS
Sipe contends that the hearing officer committed reversible

error by (1) failing to develop the record by not ordering an
updated IQ Test;(2) failing properly to apply the Psychiatric
Review Technique; and (3) failing to consult a vocational expert.
Sipe Mem. 13-19.
A.

Failure to Complete the Record

In the Second Circuit, the hearing officer must
“‘affirmatively develop the record’ in light of ‘the essentially
non-adversarial nature of a benefits proceeding.’”

Pratts v.

Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Echevarria v.
Sec’y of Health and Human Servs., 685 F.2d 751, 755 (2d Cir.
1982)).

The hearing officer must do so even when the claimant is

represented by counsel.

Id.

The hearing officer is entitled to

rely not only on what the record says, but also on what it does
not say.

Dumas v. Schweiker, 712 F.2d 1545, 1553 (2d Cir. 1983)

(citing Rutherford v. Schweiker, 685 F.2d 60, 63 (2d Cir. 1982));
Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir. 1982) (per curiam).
Sipe contends that there is a gap in the record with respect
12

to his mental condition, specifically the severity of his
impairment.

Sipe Mem. 14.

He argues that the hearing officer

should have updated the IQ Test given in 1988 to determine
whether he has mild mental retardation.

Id.

Sipe’s argument fails for several reasons.

First, the IQ

Test given in 1988 determined that Sipe was learning disabled,
not mentally retarded.

Admin. R. 309.

Vieweg assessed the

results of the IQ Test and determined that Sipe fell within
borderline and low average range.

Id. at 306.

Second, the

record does not contain a gap because the hearing officer
completed the record through consultative evaluations.

Dr. Barry

noted in her diagnosis that mild mental retardation was
specifically ruled out.

Id. at 268.

Further, Dr. Kamin, in

completing his assessment, only noted Personality Disorder and
Substance Abuse Disorder, not Mental Retardation.

Id. at 286.

As the Commissioner noted, the record contains hundreds of pages
of treatment notes that provided sufficient evidence upon which
the hearing officer could properly base his decision.

There is

nothing in this record that suggests Sipe is mentally retarded,
even mildly.
Accordingly, this Court rules that the hearing officer did
not fail to complete the record.
B.

Failure to Properly Apply the Psychiatric Review
Technique

The regulations “require application of a ‘special
13

technique’ at the second and third steps of the five-step
framework.”

Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008);

see also 20 C.F.R. §§ 404.1520a(a), 416.920a(a).

This technique

“requires a reviewing authority to determine first whether the
claimant has a ‘medically determinable mental impairment.’”
Kohler, 546 F.3d at 265–66 (quoting 20 C.F.R. § 404.1520a(b)(1)).
“If the claimant is found to have such an impairment, the
reviewing authority must ‘rate the degree of functional
limitation resulting from the impairment(s) in accordance with
paragraph (c),’ . . . which specifies four broad functional
areas.”

Id. at 266 (quoting 20 C.F.R. § 404.1520a(b)(2)).

These

areas are: “(1) activities of daily living; (2) social
functioning; (3) concentration, persistence or pace; and (4)
episodes of decompensation.”

Id. (citing 20 C.F.R. §

404.1520a(c)(3)); see also 20 C.F.R § 416.920a(c)(3).
Each of the first three areas is rated on a scale of
“[n]one, mild, moderate, marked, and extreme.”
404.1520a(c)(4), 416.920a(c)(4).

20 C.F.R. §§

The fourth area is rated on a

scale of “[n]one, one or two, three, four or more.”

Id.

“[I]f

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.

14

The regulations also require that the application of the
special technique be documented.
404.1520a(e)).

Id. (citing 20 C.F.R. §

Generally, a medical or psychological consultant

will complete a standard document, known as a “Psychiatric Review
Technique Form” (“Review Form”).

Id.

Pursuant to the

regulations, the hearing officer’s written decision must “reflect
application of the technique, and . . . ‘include a specific
finding as to the degree of limitation in each of the [four]
functional areas.’”

Id. (quoting 20 C.F.R. § 404.1520a(e)(2)).

In this case, the hearing officer relied on the Review Form
completed by a state agency reviewing psychologist, Dr. Kamin.
Admin. R. 296.

Dr. Kamin concluded that Sipe’s mental

impairments caused a mild restriction of activities of daily
living, and moderate difficulties in maintaining social function,
concentration, persistence, or pace.

Id.

Since Dr. Kamin found

the record contained insufficient evidence of repeated episodes
of decompensation, each of extended duration, the hearing officer
was warranted in finding that Sipe had no such repeated episodes.
Id.
The hearing officer properly applied the special technique
and his conclusion was supported by substantial evidence.
Evidence in the record consistently showed that Sipe was able to
dress, bathe, and groom himself on a daily basis.

Id. at 267.

Sipe stated that he could cook, prepare food, manage money, use

15

public transportation, perform general cleaning, do laundry, and
go shopping.

Id. at 410-12.

A consultative examination further

found that despite borderline intellectual abilities, Sipe could
understand simple directions and instructions.
was also looking for work.

Id. at 268.

Sipe

Id. at 413.

In light of this evidence, the Court holds that the hearing
officer did not err in his application of the Psychiatric Review
Technique.
C.

Failure to Consult a Vocational Expert

The final issue is whether the hearing officer’s failure to
consult a vocational expert at step five of the disability
determination constitutes legal error.

The “appropriateness of

‘applying the grid guidelines and the necessity for expert
testimony must be determined on a case-by-base basis.’”

Webb v.

Astrue, No. 3:11-CV-94 (GLS), 2012 WL 589660, at *5 (N.D.N.Y.
Feb. 22, 2012) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986)).

The Medical-Vocational Guidelines (the “Grids”),

however, do not take into account a claimant’s non-exertional
impairments, and therefore “the [hearing officer] should consult
with a vocational expert before making a determination as to
disability.”

Id.

When a claimant has a significant non-

exertional impairment, the Social Security Administration may not
apply the Grids.

Rosa v. Callahan, 168 F.3d 72, 82 (2d Cir.

1999) (internal citations and quotations omitted).

16

The

impairment must be significant because “the mere existence of a
non-exertional impairment does not automatically require the
production of a vocational expert nor preclude reliance on the
guidelines.”

Roma v. Astrue, No. 10-4351-CV, 2012 WL 147899, at

*5 (2d Cir. Jan. 19, 2012) (quoting

Bapp, 802 F.2d at 603); see

also Campbell v. Astrue, No. 11-854-CV, 2012 WL 29321, at *1 (2d
Cir. Jan. 6, 2012) (stating that the “extent of [the claimant’s]
non-exertional limitations did not require the [hearing officer]
to consult a vocational expert”).
The application of the Grids is inappropriate “where the
claimant’s work capacity is significantly diminished beyond that
caused by his exertional impairment.”

Bapp, 802 F.2d at 605-06.

The Second Circuit defines the phrase “significantly diminished”
as “the additional loss of work capacity beyond a negligible one
or, in other words, one that so narrows a claimant’s possible
range of work as to deprive him of a meaningful employment
opportunity.”

Id.

A hearing officer can determine whether a claimant’s nonexertional limitations significantly diminish his or her work
capacity by determining whether the claimant can meet the basic
mental demands of competitive, remunerative, and unskilled work
as provided in Social Security Regulation 85-15.
(S.S.A.).

See SSR 85-15

These demands include the ability, on a sustained

basis, to “understand, carry out, and remember simple

17

instructions; to respond appropriately to supervision, coworkers,
and usual work situations; and to deal with changes in a routine
work setting.”

Id.

A substantial loss of ability to meet any of

these demands would severely limit the potential occupational
base.

Id.
In this case, the hearing officer found that Sipe could

perform the full range of sedentary work, and that Sipe’s
additional limitations “have little or no effect on the
occupational base of unskilled sedentary work.”

Admin. R. 26.

The hearing officer considered the mental demands outlined in
Social Security Regulation 85-15, applied them based on the
mental residual functional capacity previously established, and
concluded that Sipe could meet the demands of unskilled work.
Id.

The hearing officer then applied the Grids and concluded

that Sipe was not disabled.

Id.

This Court must now consider whether the hearing officer’s
decision that Sipe met the demands in Social Security Regulation
85-15 was supported by substantial evidence.

In this case, Dr.

Barry found that Sipe could do simple calculations, follow and
understand very simple directions and instructions, and perform
some simple rote tasks.

Admin. R. 267-68.

As previously

discussed, Dr. Kamin, in assessing Sipe’s mental residual
functional capacity, found Sipe was mildly or moderately limited
in all relevant areas.

Id. at 282-83.

18

For example, Dr. Kamin

found mild limitations on daily living and moderate limitations
in Sipe’s abilities relating to instructions, concentration,
attendance, interactions with the public, responses to changes in
the work setting, and accepting instructions and responding
appropriately to supervisors.

Id.

Finally, Sipe stated at the

hearing that he gets along with people pretty well, id. at 414,
that he is looking for work, id. at 413, and that he would prefer
to work if possible, id. at 409.
This Court holds that the conclusions of Dr. Barry and Dr.
Kamin, along with Sipe’s testimony, provide substantial evidence
for the hearing officer to find that no substantial loss of
ability existed in any of the areas specified under Social
Security Regulation 85-15 and thus, that Sipe could perform
unskilled work.

The hearing officer properly applied Social

Security Regulation 85-15 and properly considered the effect of
Sipe’s non-exertional impairments when finding that jobs existed
in significant numbers in the national economy that Sipe could
perform.

Based on Sipe’s ability to meet the demands of

unskilled work, Sipe’s work capacity was not significantly
diminished and, therefore, the hearing officer was not required
to consult a vocational expert.
V.

CONCLUSION
Wherefore, for the foregoing reasons, it is hereby
ORDERED that Sipe’s motion for judgment on the pleadings,

19

ECF No. 9, is DENIED; and it is further
ORDERED that the Commissioner’s motion for judgment on the
pleadings, ECF No. 11, is GRANTED; and it is further
ORDERED that the hearing officer’s decision denying
disability benefits is AFFIRMED; and it is further
ORDERED that Sipe’s complaint, ECF No. 1, is DISMISSED.
IT IS SO ORDERED.
Dated: July 2, 2012
/s/ William G. Young
WILLIAM G. YOUNG
U.S. DISTRICT JUDGE

20