Bartell v. Commissioner of Social Security

Filing 16

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines August 20, 2014 15 Report and Recommendation is REJECTED. That the decision of the Commissioner is AFFIRMED and Bartell's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/30/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
JOHN VINCENT BARTELL, JR.,
Plaintiff,

5:13-cv-843
(GLS/ESH)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261

HOWARD D. OLINSKY, ESQ.

SIXTINA FERNANDEZ
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff John Vincent Bartell, Jr. challenges defendant Commissioner
of Social Security’s denial of Supplemental Security Income (SSI), seeking
review under 42 U.S.C. §§ 405(g) and 1383(c)(3). (Compl., Dkt. No. 1.) In
a Report and Recommendation (R&R) filed August 20, 2014, Magistrate
Judge Earl S. Hines recommended that the Commissioner’s decision be
reversed. (Dkt. No. 15.) No party has filed objections to the R&R. For the
reasons stated below, the court declines to adopt the R&R, and affirms the
Commissioner’s decision.
II. Background1
On November 10, 2010, at the age of twenty-three, Bartell filed an
application for SSI under the Social Security Act. (Tr. 2 at 65, 149-54.)3
After his application was denied, Bartell requested a hearing before an
Administrative Law Judge (ALJ), which was held on November 10, 2011.
(Id. at 72-93, 46-63.) On December 12, 2011, the ALJ issued a decision

1

The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 12, 13, 15.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

3

Bartell also filed an application for Child’s Insurance Benefits on November 10, 2010,
but in his complaint, he only appeals the ALJ’s decision denying SSI. (See generally Compl.;
Tr. at 64, 145-48.)

2

denying the requested benefits, which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s
denial of review. (Id. at 2-7, 29-43.)
Bartell commenced the present action by filing a complaint on July
17, 2013, seeking judicial review of the Commissioner’s determination.
(Compl.) After receiving the parties’ briefs, Judge Hines issued an R&R
recommending that the Commissioner’s decision be reversed and
remanded. (See generally Dkt. No. 15.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
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objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
A.

Residual Functional Capacity Determination
Bartell first alleges that the ALJ’s residual functional capacity (RFC) 4

determination is unsupported by substantial evidence. 5 According to
Bartell, the ALJ failed to: (1) properly analyze the opinion of consultative
examiner Stephen Coleman; (2) weigh the opinion of consultative examiner
Jeanne Shapiro; and (3) reconcile her RFC findings with the opinion of
nonexamining medical consultant R. Altmansberger and the ALJ’s own
determination that Bartell suffers moderate difficulties in the area of
concentration, persistence, or pace. (Dkt. No. 12 at 11-17.) In the R&R,

4

A claimant’s RFC “is the most [he] can still do despite [his] limitations.” 20 C.F.R.
§ 416.945(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 416.945(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in the
record. See Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 486 (2d. Cir. 2012). If it is, that
determination is conclusive and must be affirmed upon judicial review. See id.; see also Perez
v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).
5

“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citation omitted).

4

Magistrate Judge Hines found that the ALJ’s RFC finding does not conform
to and accommodate Bartell’s limitations in maintaining concentration,
persistence, and pace. (Dkt. No. 15 at 8-12.) For that reason, Judge
Hines recommends reversal and remand. (Id. at 12.)
An ALJ’s evaluation of a claimant’s mental impairments must reflect
her application of the “special technique” set out in 20 C.F.R. § 416.920a,
which necessitates consideration of “four broad functional areas” that
include: “[a]ctivities of daily living; social functioning; concentration,
persistence, or pace; and episodes of decompensation.” 20 C.F.R.
§ 416.920a(c)(3). The first three areas are rated on a five-point scale:
“[n]one, mild, moderate, marked, and extreme.” Id. § 416.920a(c)(4). “[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 [ALJ]
generally will conclude that the claimant’s mental impairment is not
‘severe.’” Kohler v. Astrue, 546 F.3d 260, 266 (2d Cir. 2008) (quoting 20
C.F.R. § 404.1520a(d)(1)). If the claimant’s mental impairment is deemed
severe, the ALJ must determine whether the impairment meets or equals
the severity of a mental disorder listed in section 12.00 of the Listing of
Impairments in 20 C.F.R. part 404, subpart P, appendix 1. See 20 C.F.R.
5

§ 416.920a(d)(2). The mental RFC assessment used at steps four and five
of the sequential evaluation process requires the ALJ to, among other
things, engage in a more detailed assessment of various functions
contained in the broad categories found in paragraphs B and C of the adult
mental disorders listings in section 12.00 of the Listing of Impairments.
See SSR 96-8p, 61 Fed. Reg. 34,474, 34,477 (July 2, 1996).
Here, in proceeding through the five-step sequential analysis, the ALJ
made the following pertinent findings. At step two, she determined that
Bartell suffers from illiteracy due to language deficiency and/or dyslexia,
which is a severe impairment under the regulations. (Tr. at 34.) At step
three, she concluded that Bartell’s mental impairment does not meet or
medically equal the severity of a listed impairment. (Id. at 35.) Specifically,
the ALJ determined that Bartell has experienced mild restrictions in
activities of daily living, mild difficulties in social functioning, moderate
difficulties in concentration, persistence or pace, and no episodes of
decompensation. (Id.) Next, the ALJ found that Bartell retains the RFC to
perform a full range of work at all exertional levels, but is limited to simple,
repetitive work with no reading requirement. (Id.)
In making her findings, the ALJ relied on the opinion of consultative
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examiner Shapiro that Bartell is capable of understanding and following
simple instructions and directions if he does not have to read anything to
do so. (Id. at 274.) Further, Dr. Shapiro opined that Bartell can perform
simple tasks with supervision and “perhaps” independently, maintain
attention and concentration, attend a routine and maintain a schedule, and
relate to and interact moderately well with others. (Id.) However, Dr.
Shapiro opined that Bartell has difficulty learning new tasks, consistently
making appropriate decisions, and dealing with stress. (Id.) The ALJ
discussed the examination findings and conclusions of Dr. Shapiro, but did
not assign her opinion a specific weight. (Id. at 38.) On the other hand, the
ALJ assigned “great weight” to the opinion of nonexamining consultant
Altmansberger. (Id.) Dr. Altmansberger completed a psychiatric review
technique form and concluded that Bartell suffers moderate difficulties in
the area of maintaining concentration, persistence, or pace. (Id. at 295.)
Dr. Altmansberger also completed a mental RFC assessment and opined
that Bartell was moderately limited in his ability to understand, remember,
and carry out detailed instructions, sustain an ordinary routine without
special supervision, interact appropriately with the general public, and
respond appropriately to changes in the work setting. (Id. at 277-79.) Dr.
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Altmansberger ultimately concluded that Bartell “retains the mental
capacity to do a job with simple tasks.” (Id. at 279.)
Judge Hines found that the ALJ’s “terse” RFC determination failed to
account for the “moderate limitations” in concentration, persistence, and
pace that the ALJ determined Bartell suffers at step three, as well as the
limitations found by Dr. Altmansberger, whose opinion the ALJ gave great
weight. (Dkt. No. 15 at 8-11.) Indeed, Judge Hines cited numerous circuit
court and district court decisions holding that ALJs may not avoid
conducting a detailed function by function assessment by merely indicating
that claimants can perform simple, unskilled work. (Id. at 10.) The Second
Circuit has not directly addressed the issue of whether a limitation to simple
unskilled work adequately accounts for moderate limitations in
concentration, persistence, and pace. The Court has held, however, that
the failure to explicitly engage in a function-by-function analysis as part of
the RFC assessment does not constitute a per se error requiring remand.
See Chichocki v. Astrue, 729 F.3d 172, 174 (2d Cir. 2013). Further,
various courts have held that when medical evidence demonstrates that a
claimant can engage in simple, routine tasks or unskilled work despite
limitations in concentration, persistence, and pace, limiting a claimant to
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only unskilled work sufficiently accounts for such limitations. 6 See Simila v.
Astrue, 573 F.3d 503, 521-22 (7th Cir. 2009); Stubbs-Danielson v. Astrue,
539 F.3d 1169, 1173-76 (9th Cir. 2008); Howard v. Massanari, 255 F.3d
577, 582 (8th Cir. 2001); McIntyre v. Colvin, No. 3:12-CV-0318, 2013 WL
2237828, at *4 (N.D.N.Y. May 21, 2013); see also Rodriguez v. Colvin, No.
13-CV-6360, 2014 WL 3882191, at *17 (W.D.N.Y. Aug. 6, 2014) (finding
that where the ALJ determined that a claimant “has a certain amount of
difficulty with concentration, persistence or pace, consisting of some
difficulty remembering what someone tells him to do and some difficulty
focusing on tasks,” the ALJ accounted for those limitations by limiting the
claimant to work requiring simple instructions and directions (internal
quotation marks and citations omitted)); Woodmancy v. Colvin, No. 5:12cv-991, 2013 WL 5567553, at *4 (N.D.N.Y. Oct. 9, 2013) (holding that the
ALJ did not err when she failed to make specific accommodations for a
claimant’s impaired ability to cope with work stress, because the ALJ relied
6

The mental activities generally required by competitive, remunerative, unskilled work
are: understanding, remembering, and carrying out simple instructions; making simple
work-related decisions, responding appropriately to supervision co-workers and usual work
situations, and dealing with changes in a routine work setting. See SSR 96-9p, 61 Fed. Reg.
34,478, 34,483 (July 2, 1996). Further, “[b]asic communication is all that is needed to do
unskilled work. The ability to hear and understand simple oral instructions or to communicate
simple information is sufficient.” Id. In addition, unskilled work “ordinarily involve[s] dealing
primarily with objects, rather than with data or people.” SSR 85-15, 1985 WL 56857, at *4
1985).

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on the opinion of a medical expert, who opined that the claimant could still
perform basic work tasks despite his difficulty handling stressors).
Here, although the ALJ did not conduct a function-by-function
analysis of Bartell’s mental capabilities, she extensively considered the
findings and opinions of the consultative examining and nonexamining
physicians with respect to Bartell’s mental capabilities and work-related
functions and limitations. (Tr. at 36-38.) The ALJ noted that, on
examination by Dr. Shapiro, Bartell reported that his sleep and appetite
were normal, and he did not report any significant manic or anxiety related
symptoms. (Id. at 38, 271-72.) Further, Bartell was cooperative with
adequate social skills, appropriate eye contact, normal motor behavior,
fluent speech, and coherent and goal directed thought processes. ( Id. at
272-73.) Bartell’s mood was clam, he had a full affect, and his attention
and concentration as well as recent and remote memory were intact. (Id.
at 273.) Dr. Shapiro estimated that Bartell’s intellectual functioning was in
the deficient range with a somewhat limited general fund of knowledge, and
his insight and judgment were fair. (Id.) Bartell reported to Dr. Shapiro that
he was able to care for his personal hygiene, prepare simple meals, and
socialize with family and friends. (Id.) After reviewing Dr. Shapiro’s mental
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status examination findings and opinion, Dr. Altmansberger opined that
Bartell was able to understand, remember, and carry out simple
instructions, maintain attention and concentration for extended periods,
perform activities within a schedule and maintain regular attendance, work
in coordination or proximity with others, make simple work related
decisions, complete a normal workday and workweek and perform at a
consistent pace, get along with coworkers or peers, and accept instructions
and criticism from supervisors. (Id. at 277-28.) In the narrative portion of
Dr. Altmansberger’s RFC assessment, he concluded that Bartell maintains
the mental capacity to do a job with simple tasks. (Id. at 279.) In addition
to the above cited medical evidence, the ALJ considered Bartell’s
testimony that he attempted to work as a landscaper and quit that job due
to a dispute with his supervisor over the amount of work he was required to
perform and his compensation, but not because he was unable to perform
the basic activities of work. (Id. at 36, 52-53.) The ALJ also noted that
Bartell was not on any medications or receiving any mental health
treatment and his educational records revealed average to slightly below
average cognitive functioning. (Id. at 36.)
After reviewing the record evidence, the court concludes that the
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ALJ’s RFC assessment is consistent with her determination that Bartell had
moderate difficulties in the area of concentration, persistence, and pace, as
well as the opinion of Dr. Altmansberger, which indicates that, despite
Bartell’s limitations, he can still perform the basic activities of unskilled
work. See Diakogiannis v. Astrue, 975 F. Supp. 2d 299, 315 (W.D.N.Y.
2013) (concluding that an RFC determination limiting a claimant to simple,
routine, repetitive tasks and not production rate or pace work was
consistent with the ALJ’s assessment that claimant had moderate
difficulties with concentration, persistence, or pace due to attention deficit
hyperactivity disorder (ADHD), difficulties reading, short term memory
problems, and difficulties handling stress). Further, because the ALJ’s
RFC assessment provides an adequate basis for meaningful review,
applies the correct legal standards, and is supported by substantial
evidence, remand is not required due to her failure to engage in a functionby-function review. See Chichocki, 729 F.3d at 174. As the court has
identified clear error, the court rejects the R&R and will consider Bartell’s
remaining contentions.
Turning to the opinion of Dr. Shapiro, although the ALJ did not
explicitly state the weight given to it, the ALJ clearly considered the opinion
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and relied on it in forming her RFC determination. (Dkt. No. 12 at 14-15;
Tr. at 38.) Further, although the ALJ erroneously noted inconsistencies
between Dr. Coleman’s Psychological Evaluation Report and the Medical
Source Statement he completed, the inconsistencies the ALJ pointed out
exist between Dr. Shapiro’s January 2011 report and Dr. Coleman’s
October 2011 Medical Source Statement. (Dkt. No. 12 at 13-14; Tr. at 37.)
In particular, Bartell reported to Dr. Shapiro that his sleep and appetite
were normal, and denied experiencing any symptoms of anxiety. (Tr. at
371-72.) However, on his Medical Source Statement, Dr. Coleman
identified appetite and sleep disturbance as among Bartell’s symptoms and
diagnosed Bartell with adjustment disorder with mixed anxiety and
depression. (Id. at 311.) Additionally, Dr. Coleman opined that Bartell was
seriously limited in his ability to maintain attention, but his examination
revealed fair to average short term memory skills, and Bartell’s attention,
concentration, and memory were intact on Dr. Shapiro’s examination. (Id.
at 273, 307, 312.) Further, as the ALJ noted, both Drs. Shapiro and
Coleman recommended Bartell seek vocational training, and Dr. Coleman
suggested that his opinion with respect to Bartell’s inability to work was
partially attributable to Bartell’s lack of work history. (Id. at 37-38, 274,
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301-10.) However, according to Dr. Coleman, Bartell’s lack of work history
is due in part to Bartell’s mistaken belief that all work demands the ability to
read. (Id. at 309.)
Ultimately, it is for the ALJ to resolve evidentiary conflicts, and “an
[ALJ] is free to resolve issues of credibility as to lay testimony or to choose
between properly submitted medical opinions.” Balsamo v. Chater, 142
F.3d 75, 81 (2d Cir. 1998); see Carroll v. Sec’y of Health & Human Servs.,
705 F.2d 638, 642 (2d Cir. 1983). Additionally, “whether there is
substantial evidence supporting the [claimant]’s view is not the question,”
instead, the court must “decide whether substantial evidence supports the
ALJ’s decision.” Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d. Cir.
2013). Based on the foregoing, as the ALJ properly relied on substantial
evidence in the record to assess Bartell’s mental condition pursuant to the
“special technique” set out in 20 C.F.R. § 416.920a, her determination is
legally sound and supported by substantial evidence.
B.

Credibility Determination
Bartell next contends that the ALJ failed to analyze the required

factors when assessing his credibility. (Dkt. No. 12 at 17-19.) Bartell
points to evidence that he asserts supports his allegations, and claims that
14

the ALJ improperly compared his statements to the ALJ’s own RFC finding,
as opposed to the evidence of record. (Id.) The court disagrees.
Once the ALJ determines that the claimant suffers from a “medically
determinable impairment[] that could reasonably be expected to produce
the [symptoms] alleged,” she “must evaluate the intensity and persistence
of those symptoms considering all of the available evidence; and, to the
extent that the claimant’s [subjective] contentions are not substantiated by
the objective medical evidence, the ALJ must engage in a credibility
inquiry.” Meadors v. Astrue, 370 F. App’x 179, 183 (2d Cir. 2010) (internal
quotation marks and citations omitted). In performing this analysis, the ALJ
“must consider the entire case record and give specific reasons for the
weight given to the [claimant’s] statements.” SSR 96-7p, 61 Fed. Reg.
34,483, 34,485 (July 2, 1996). Specifically, in addition to the objective
medical evidence, the ALJ must consider the following factors: “1) daily
activities; 2) location, duration, frequency and intensity of any symptoms; 3)
precipitating and aggravating factors; 4) type, dosage, effectiveness, and
side effects of any medications taken; 5) other treatment received; and 6)
other measures taken to relieve symptoms.” F.S. v. Astrue, No. 1:10-CV444, 2012 WL 514944, at *19 (N.D.N.Y. Feb. 15, 2012) (citing 20 C.F.R.
15

§ 416.929(c)(3)(i)-(vi)).
In this case, the ALJ determined that Bartell’s statements concerning
the intensity, persistence, and limiting effects of his symptoms were not
fully credible to the extent they were inconsistent with the ALJ’s RFC
assessment. (Tr. at 36.) In making this determination, the ALJ considered
the objective medical evidence, opinion evidence, Bartell’s treatment,
including medication, and Bartell’s reported daily activities. (Id. at 36-38.)
The ALJ noted that, on a psychological evaluation conducted when Bartell
was in fifth grade, an ADHD rating scale was completed by Bartell’s
teachers and resulted in scores that were not significant in any area. ( Id. at
36.) The ALJ also considered Bartell’s testimony with respect to his
attempt to work as a landscaper. (Id.)
Bartell argues that the ALJ failed to consider that his teachers
indicated that distractibility was still an issue and that Bartell had a
diagnosis of ADHD. (Dkt. No. 12 at 18.) Initially, it is not necessary that
the ALJ “have mentioned every item of testimony presented to him or have
explained why he considered particular evidence unpersuasive or
insufficient to lead him to a conclusion of disability.” Petrie v. Astrue, 412
F. App’x 401, 407 (2d Cir. 2011) (internal quotation marks and citation
16

omitted). Moreover, the ALJ noted that the psychological evaluation
indicated that Bartell had been earlier diagnosed with ADHD. (Tr. at 36.)
Bartell also contends that his “landscaping work was not really a job,” the
ALJ failed to address the fact that Bartell’s employer attempted “to take
advantage of him by not paying him the right amount,” and his short
duration in landscaping is consistent with his complaints of difficulty with
concentration and focus. (Dkt. No. 12 at 18.) Contrary to Bartell’s
contentions, the ALJ’s conclusion that his testimony regarding his effort to
work was inconsistent with his allegations of disabling mental impairments
was reasonable. See Pietrunti v. Director, Office of Workers’ Comp.
Programs, 119 F.3d 1035, 1042 (2d Cir. 1997) (“Credibility findings of an
ALJ are entitled to great deference and therefore can be reversed only if
they are patently unreasonable.” (internal quotation marks and citation
omitted)). Bartell indicated that he left this employment due to a dispute
over his wages, and not due to any inabilities in the area of concentration,
persistence, or pace. (Tr. at 52-53.)
Although the ALJ did not undertake a step-by-step exposition of the
factors articulated in 20 C.F.R. § 416.929(c), “[f]ailure to expressly consider
every factor set forth in the regulations is not grounds for remand where the
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reasons for the ALJ’s determination of credibility are sufficiently specific to
conclude that she considered the entire evidentiary record.” Judelsohn v.
Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y. June 25,
2012) (internal quotation marks and citation omitted); see Oliphant v.
Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22 (E.D.N.Y. Aug. 14,
2012) (stating that the 20 C.F.R. § 404.1529(c)(3) factors are included as
“‘examples of alternative evidence that may be useful [to the credibility
inquiry], and not as a rigid, seven-step prerequisite to the ALJ’s finding’”
(quoting Snyder v. Barnhart, 323 F. Supp. 2d 542, 546 (S.D.N.Y. 2004))).
Further, it is clear from the ALJ’s detailed credibility analysis that her
reference to consistency with the RFC assessment was merely an
indication that the RFC assessment incorporated those findings. (Tr. at 3638.) Ultimately, because her reasoning for doing so is “set forth . . . with
sufficient specificity . . . [and] is supported by substantial evidence,” the
ALJ’s credibility assessment is conclusive. Lewis v. Apfel, 62 F. Supp. 2d
648, 651 (N.D.N.Y. 1999) (internal quotation marks and citation omitted).
C.

Vocational Expert
Finally, Bartell argues that the ALJ erred in applying the Medical-

Vocational Guidelines, despite the existence of significant nonexertional
18

impairments. (Dkt. No. 12 at 19-20.) In making her ultimate disability
determination, an ALJ may rely on the Medical-Vocational Guidelines,
referred to as “the grids,” found in 20 C.F.R. pt. 404, subpt. P, app. 2, as
long as the claimant’s age, education, work experience, and RFC coincide
with the criteria of a rule contained in those Guidelines. See 20 C.F.R.
§ 416.969; see also Calabrese v. Astrue, 358 F. App’x 274, 275 n.1 (2d Cir.
2009). However, “if a claimant’s nonexertional impairments ‘significantly
limit the range of work permitted by h[er] exertional limitations’ then the
grids obviously will not accurately determine disability status because they
fail to take into account claimant’s nonexertional impairments.” Bapp v.
Bowen, 802 F.2d 601, 605 (2d Cir. 1986) (quoting Blacknall v. Heckler, 721
F.2d 1179, 1181 (9th Cir. 1983)). In that case, the ALJ should consult with
a vocational expert (VE) before making a determination as to disability.
See id.
As discussed above, the ALJ’s RFC determination that Bartell can
perform a full range of work at all exertional levels, but is limited to simple,
repetitive work with no reading requirement is supported by substantial
evidence. See supra Part VI.A. Notably,
[w]hile illiteracy or the inability to communicate in
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English may significantly limit an individual’s
vocational scope, the primary work functions in the
bulk of unskilled work relate to working with things
(rather than with data or people) and in these work
functions at the unskilled level, literacy or ability to
communicate in English has the least significance.
Similarly the lack of relevant work experience would
have little significance since the bulk of unskilled jobs
require no qualifying work experience. Thus, the
functional capability for a full range of sedentary work
represents sufficient numbers of jobs to indicate
substantial vocational scope for those individuals age
[eighteen to forty-four] even if they are illiterate or
unable to communicate in English.
20 C.F.R. pt. 404, subpt. P, app. 2 § 201.00(i). Accordingly, the ALJ did
not err in concluding that Bartell’s nonexertional limitations have little or no
effect on the occupational base of unskilled work at all exertional levels.
(Tr. at 39.) That finding obviated the need to consult with a VE. See
Bapp, 802 F.2d at 605.
D.

Remaining Findings and Conclusions
After careful review of the record, the court affirms the remainder of

the ALJ’s decision as it is supported by substantial evidence.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ August 20, 2014

20

Report and Recommendation (Dkt. No. 15) is REJECTED; and it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Bartell’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.

September 30, 2014
Albany, New York

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