Joe v. Commissioner of Social Security

Filing 14

DECISION AND ORDER denying Plaintiff's # 10 motion for judgment on the pleadings; granting Defendants # 12 motion for judgment on the pleadings; affirming Defendant's decision denying disability benefits; and dismissing Plaintiff's Complaint (Dkt. No. 1 ). Signed by Judge Glenn T. Suddaby on 6/26/15. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
GARY JOE,
Plaintiff,
v.

5:14-CV-0423
(GTS)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

NICHOLAS, PEROT LAW FRIM
Counsel for Plaintiff
219 First Street
P.O. Box 720
Liverpool, NY 13088

MICHAEL J. WELCH, ESQ.

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

SIXTINA FERNANDEZ, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Gary Merril Joe
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ crossmotions for judgment on the pleadings. (Dkt. Nos. 10,12.) For the reasons set forth
below, Plaintiff’s motion is denied and Defendant’s motion is granted.

I.

RELEVANT BACKGROUND
A.

Factual Background

Plaintiff was born on February 28, 1964. (T. 373.) He completed 10th grade. (T.
406.) Generally, Plaintiff’s alleged impairments consist of arthritis, bad right hand,
rotator cuff injury, neck problems, high blood pressure, and depression. (T. 401.) His
alleged disability onset date is April 21, 2005 and his date last insured is June 30. 2007.
(T. 396.) Plaintiff previously worked as a heavy equipment operator, laborer, and
frogger. (T. 402.)
B.

Procedural History

On February 16, 2007, Plaintiff applied for Social Security Disability Insurance
Benefits (“SSD”) under Title XVI and Supplemental Security Income (“SSI”) under Title
II. Plaintiff’s application was initially denied, after which he timely requested a hearing
before an Administrative Law Judge (“the ALJ”). On September 15, 2009, Plaintiff
appeared before ALJ Robert E. Gale. (T. 82-132.) The ALJ issued a written decision
finding Plaintiff not disabled under the Social Security Act on December 11, 2009. (T.
275-292.) On October 5, 2011, the Appeals Council granted Plaintiff’s request for
review, remanding his case. (T. 293-297.) On December 11, 2012, Plaintiff again
appeared before ALJ Gale. (T. 133-272.) On February 11, 2013, the ALJ issued a
written decision finding Plaintiff not disabled. (T. 21-58.) The Plaintiff again requested an
Appeal Council review, which was denied on February 10, 2014. (T. 1-5.) Thereafter,
Plaintiff timely sought judicial review in this Court.

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C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law. (T. 27-49.) First, the ALJ found Plaintiff met his insured dated
through June 30, 2007 and further, Plaintiff had not engaged in substantial gainful
activity since April 21, 2005. (T. 27-28.) Second, the ALJ found Plaintiff had the severe
impairments of status post left rotator cuff surgery and left shoulder osteoarthritis with
right shoulder involvement, cervical spine strain/sprain, multiple joint arthritis, sleep
apnea, nasal polyps, allergic rhinitis, deviated septum, environmental allergies, obesity,
and depressive disorder (as variously characterized). (Id.) The ALJ determined
Plaintiff’s medically determinable impairments of hypertension, hyperlipidemia, vertigo,
gastroesophageal reflux disease, acid reflux, and poor vision were non-severe
impairments. (T. 29.) Third, the ALJ found Plaintiff did not have an impairment that
meets or medically equals one of the listed impairments located in 20 C.F.R. Part 404,
Subpart P, Appendix. 1 (“the Listings”). (T. 31.) The ALJ specifically considered Listing
§§ 1.02, 1.04, 3.10, 14.09, 1.00, 3.00,14.00 and 12.04. (T. 31-32.) Fourth, the ALJ
found Plaintiff had the residual functional capacity (“RFC”) to do “light work1” with
additional mental limitations. (Id.) Specifically, Plaintiff could “use the right hand
frequently to handle, finger, feel, push or pull without greater limitations; can
occasionally lift overhead with the right arm; should avoid lifting above chest height with
the left arm; can bilaterally and frequently use foot controls; has no postural limitations;

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Light work involves lifting no more than 20 pounds at a time with frequent lifting or carrying of
objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it
requires a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling
of arm or leg controls. To be considered capable of performing a full or wide range of light work, you must have the
ability to do substantially all of these activities. If someone can do light work, we determine that he or she can also do
sedentary work, unless there are additional limiting factors such as loss of fine dexterity or inability to sit for long
periods of time. 20 C.F.R. §§ 404.1567(b) and 416.967(b).

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can occasionally work at unprotected heights in the vicinity of a moving mechanical
parts; can occasionally operate a motor vehicle; can occasionally work in humidity and
wetness, dust and other pulmonary irritants, temperature extremes, and vibrations; is
limited to simple tasks; can perform tasks involving only occasional judgment required
on the job; can occasionally interact with public, co-workers and supervisors; and can
sustain sufficient attention and concentration to maintain a regular sustained
performance of rote tasks.” (T. 34.) Fifth, the ALJ determined that although Plaintiff
could not perform his past relevant work, there were jobs that exist in significant
numbers in the national economy Plaintiff could perform. (T. 46-49.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Plaintiff makes five separate arguments in support of his motion for judgment on
the pleadings. First, Plaintiff argues the ALJ failed to determine Plaintiff’s condition met
or equaled Listing § 12.04. (Dkt. No. 10 at 5-12 [Pl.’s Mem. of Law].) Second, Plaintiff
argues the ALJ failed to determine Plaintiff’s RFC was less than sedentary. (Id. at 1217.) Third, Plaintiff argues the ALJ failed to give controlling weight to Plaintiff’s treating
providers and Rita Clark, M.D. (Id. at 17-18.) Fourth, and lastly, Plaintiff argues the ALJ
improperly admitted, and failed to properly evaluate, testimony of the vocational expert
(“VE”). (Id. at 18-22.)
B.

Defendant’s Arguments

In response, Defendant makes essentially four arguments. First, Defendant
argues the ALJ correctly found Plaintiff did not meet Listing § 12.04. (Dkt. No. 12 at 614 [Def.’s Mem. of Law].) Second, Defendant argues the ALJ properly evaluated the

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evidence. (Id. at 14-19.) Third, Defendant argues the ALJ properly evaluated Plaintiff’s
impairments throughout the sequential process. (Id. at 19-20.) Fourth, and lastly,
Defendant argues the Commissioner’s burden was met at step five. (Id. at 20-24.)
III.

RELEVANT LEGAL STANDARD
A.

Standard of Review

A court reviewing a denial of disability benefits may not determine de novo
whether an individual is disabled. See 42 U.S.C. §§ 405(g) and 1383(c)(3); Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence. See Johnson v. Bowen,
817 F.2d 983, 986 (2d Cir. 1987) (“Where there is a reasonable basis for doubt whether
the ALJ applied correct legal principles, application of the substantial evidence standard
to uphold a finding of no disability creates an unacceptable risk that a claimant will be
deprived of the right to have her disability determination made according to the correct
legal principles.”); Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano,
615 F.2d 23, 27 (2d Cir. 1979).
“Substantial evidence” is evidence that amounts to “more than a mere scintilla,”
and has been defined as “such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct.
1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational
interpretation, the Commissioner’s conclusion must be upheld. See Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

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“To determine on appeal whether the ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining evidence from both
sides, because an analysis of the substantiality of the evidence must also include that
which detracts from its weight.” Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
If supported by substantial evidence, the Commissioner’s finding must be
sustained “even where substantial evidence may support the plaintiff’s position and
despite that the court’s independent analysis of the evidence may differ from the
[Commissioner’s].” Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In
other words, this Court must afford the Commissioner’s determination considerable
deference, and may not substitute “its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review.”
Valente v. Sec’y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
B.

Standard to Determine Disability

The Commissioner has established a five-step evaluation process to determine
whether an individual is disabled as defined by the Social Security Act. See 20 C.F.R. §
404.1520. The Supreme Court has recognized the validity of this sequential evaluation
process. See Bowen v. Yuckert, 482 U.S. 137, 140-42, 107 S. Ct. 2287 (1987). The
five-step process is as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in
substantial gainful activity. If he is not, the [Commissioner] next considers
whether the claimant has a “severe impairment” which significantly limits his
physical or mental ability to do basic work activities. If the claimant suffers such
an impairment, the third inquiry is whether, based solely on medical evidence,
the claimant has an impairment which is listed in Appendix 1 of the regulations.
If the claimant has such an impairment, the [Commissioner] will consider him
disabled without considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. Assuming the
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claimant does not have a listed impairment, the fourth inquiry is whether, despite
the claimant’s severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform his past work,
the [Commissioner] then determines whether there is other work which the
claimant could perform. Under the cases previously discussed, the claimant
bears the burden of the proof as to the first four steps, while the [Commissioner]
must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
IV.

ANALYSIS
A.

Whether the ALJ Properly Determined Plaintiff Did Not Meet or Equal
the Requirements of Listing § 12.04.

After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12 at
6-14 [Def.’s Mem. of Law].) The Court adds the following analysis.
Plaintiff argues he meets or equals Listing § 12.04 based on the medical opinions
of Rita Clark, M.D., Nafisah Clay, M.S., N.C.C., Jeanne Shapiro, Ph.D., and Stephanie
Nelson, LCSW. (Dkt. No. 10 at 6-12 [Pl.’s Mem. of Law].)
The ALJ determined at step two Plaintiff suffered from the severe impairment of
depression. (T. 28.) The ALJ then used the “special technique” as laid out in 20 C.F.R.
416.920a(d) to determine whether the impairment meets or equals a listed mental
disorder by rating the paragraph B criteria of the Listing of Impairments. See Kohler v.
Asture, 546 F.3d 260, 265-66 (2d Cir. 2008). To satisfy the “B” criteria, Plaintiff must
have two of the following: 1. Marked restriction of activities of daily living; or 2. Marked
difficulties in maintaining social functioning; or 3. Marked difficulties in maintaining
concentration, persistence, or pace; or 4. Repeated episodes of decompensation, each
of extended duration. 20 C.F.R. Part 404, Subpart. P, Appx 1, § 12.04B.

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Plaintiff also argues the ALJ failed to find his impairments met or equaled the
criteria of Listing § 12.04C. To meet the “C” requirements, Plaintiff must have a:

[m]edically documented history of a chronic affective disorder of at least 2
years' duration that has caused more than a minimal limitation of ability to
do basic work activities, with symptoms or signs currently attenuated by
medication or psychosocial support, and one of the following:1. Repeated
episodes of decompensation, each of extended duration; or 2. A residual
disease process that has resulted in such marginal adjustment that even a
minimal increase in mental demands or change in the environment would
be predicted to cause the individual to decompensate; or 3. Current
history of 1 or more years' inability to function outside a highly supportive
living arrangement, with an indication of continued need for such an
arrangement.
20 C.F.R. § Pt. 404, Subpt. P, App. 1.
The ALJ concluded Plaintiff had mild restrictions in activities of daily living;
moderate difficulties in maintaining social functions; moderate difficulties in maintaining
concentration, persistence or pace; and no episodes of decompensation. (T. 33.)
Dr. Graff opined Plaintiff did not have an impairment that met or equaled on of
the listed impairments. (T. 664-677.) Dr. Graff opined Plaintiff had “mild” limitations in
activities of daily living and maintaining social functioning. (T. 674.) Regarding Plaintiff’s
activities of daily living, the ALJ also noted Plaintiff lived on his own and was able to do
his own meal preparation, housework, shopping, daily living, sweeping, laundry and
driving. (T. 39.) Dr. Graff concluded Plaintiff had “moderate” limitations in maintaining
concentration, persistence or pace. (Id.) He opined Plaintiff never had episodes of
deterioration. (Id.) The ALJ afforded Dr. Graff’s opinion “great weight.” (T. 34.) The ALJ
reasoned Dr. Graff’s opinion was entitled to more weight than the more restrictive
opinions of Dr. Clark and Ms. Nelson because his was more consistent with the record
and the opinions of other treating sources. (Id.)
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Dr. Clark completed a set of interrogatories on behalf of the Administration as an
independent medical expert. (T. 937-944.) Therein she opined Plaintiff had “marked”
difficulties in maintaining social functioning and “marked” difficulties in maintaining
concentration, persistence or pace. (T. 938.)2 Dr. Clark stated that in coming to her
conclusion that she relied on the medical opinions of the consultative examiner Dr.
Shapiro and the opinion of Stephanie Nelson, LSCW. (Id.) Dr. Clark opined Plaintiff had
a “marked” limitation on his ability to interact appropriately with supervisor(s) and coworks, and a “marked” limitation on his ability to respond appropriately to usual work
situations and to changes in a routine work setting. (T. 939.) Dr. Clark again indicated
that she relied on the opinions of Dr. Shapiro in reaching this conclusion. (Id.)
Dr. Clark completed a medical source statement in which she opined Plaintiff had
a “marked” limitation on his ability to understand and remember complex instructions;
carry out complex instructions; and make judgments on complex work-related decisions.
(T. 941.) She concluded Plaintiff’s impairment met Listing § 12.04. (T. 942.) Specifically,
Dr. Clark stated Plaintiff met Listing § 12.04 under the criteria of A(1)(b,c,d,e,g), B(2) &
(3), and met the criteria of 12.04C(2). (Id.) Again, Dr. Clark stated she relied on Dr.
Shapiro’s reports and Ms. Nelson’s reports. (Id.)
Although Dr. Clark stated she relied on the evaluations of Dr. Shapiro, a reading
of Dr. Shapiro’s exam and medical source statement indicates Plaintiff suffered a lesser
degree of limitation.
Dr. Shapiro performed a consultative psychiatric evaluation of Plaintiff in 2007
and 2011. In 2007 she opined Plaintiff was capable of understanding and following

2

The term marked was defined in Dr. Clark’s interrogatories to mirror the definition under 20 C.F.R.
§§ 404.1520a and 416.920a. Marked is defined as more than moderate but less than extreme.

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simple instructions and directions. (T. 649.) Plaintiff was capable of performing simple
and some complex tasks with supervision and independently; he was capable of
maintaining attention and concentration; he was able to relate to and interact
appropriately with others; and, he was capable of dealing with stress. (Id.) In 2011 she
opined Plaintiff “may have difficulty adequately understanding and following instructions
and directions as well as completing some tasks due to memory and concentration
deficits.” (T. 906.) She observed he “may have difficulty” interacting appropriately with
others due to social discomfort and withdrawal; attending work or maintaining a
schedule “may be difficult” for Plaintiff; and he did not appropriately deal with stress.
(Id.)
Dr. Shapiro completed a medical source statement on December 3, 2011. (T.
908-910.) Although she opined she could not comment on Plaintiff’s cognitive
functioning due to lack of IQ testing and it was “difficult to get a sense” of his cognitive
functioning; she did opine Plaintiff had “moderate” limitations in his ability to interact
appropriately with the public; interact appropriately with co-workers; and interact
appropriately with supervisor(s). (T. 908-909.) She opined he would have “mild”
limitations in responding appropriately to usual work situations and to changes in a
routine work setting. (Id.) The ALJ afforded Dr. Shapiro’s opinion’s “great weight.” (T.
42.)
Ms. Clay also provided a medical source statement. (T. 1571-1574.) Therein she
opined Plaintiff was “seriously limited” in many area of mental abilities to perform
unskilled work. (T. 1572.) She opined he had “no useful ability” in the area of
“maintaining a regular attendance and be punctual within customary usually strict

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tolerances.” (T. 1572.) She opined he would be unable to deal with the stress of
semiskilled and skilled work, and unable to interact with the general public. (T. 1573.)
However, she did opine that he was cooperative, very polite, and friendly with
appropriate behavior. (T. 1576.) She observed he had “marked” difficulties in
maintaining social functioning. (T. 1579.)
Plaintiff’s treating physician, Dr. Carmen Frederico opined Plaintiff was
“moderately” limited in his ability to interact appropriately with others; maintaining
socially appropriate behavior and working at a consistent pace. (T. 1146.) The ALJ
afforded his opinion “some weight.” (T. 44.)
The ALJ based his step three determination on the opinions of Plaintiff’s treating
physician, Dr. Frederico; consultative examiner, Dr. Shapiro; and the State agency
medical consultant, Dr. Graff. The ALJ’s evaluation of the opinions of Dr. Clark and Ms.
Clay were appropriate. The ALJ determined Dr. Clark’s opinion was not supported by
the medical evidence, namely Dr. Shapiro’s reports and other objective medical
evidence in the record. The ALJ reviewed and discussed the evidence provided by Ms.
Clay and provided her opinion “little weight,” as it was also not supported by the medical
evidence in the record. The ALJ performed a detailed and thorough step three
discussion. His evaluation of the medical evidence was complete and proper. Therefore,
the ALJ’s step three determination was supported by substantial evidence and remand
is not necessary.

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B.

Whether the ALJ Properly Evaluated Medical Evidence in
Formulating His RFC Analysis

After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12 at
14-19 [Def.’s Mem. of Law].) The Court adds the following analysis.
Plaintiff argues the ALJ’s RFC analysis failed to take into full consideration
Plaintiff’s exertional and non-exertional limitations; specifically, Plaintiff’s need for a
sit/stand option, Plaintiff’s “ineffective” ambulation, Plaintiff’s inability to lift/push/pull, and
Plaintiff’s non-exertional mental impairments. In essence, Plaintiff argues the ALJ failed
to provide proper weight to the opinions of Ammar Alkassm, M.D. and Dr. Clark. (Dkt.
No. 10 12-18 [Pl.’s Memo. of Law].) However, a reading of the record shows, the ALJ’s
RFC determination is supported by substantial evidence and not, as the Plaintiff
alleged, a “manipulation of the available medical evidence to justify the strained
conclusions he sought to achieve.” (Id. at 18.)
In making his RFC determination the ALJ provided a comprehensive and detailed
examination of the medical and non-medical evidence in the record. For the reasons
outlined in Part IV.A., the ALJ properly afforded “little weight” to the medical opinion of
Dr. Clark; therefore, the ALJ did not err in failing to provide more weight to Dr. Clark’s
functional limitations in his RFC analysis. In assessing the medical evidence, the ALJ
provided “greatest weight” to the opinion of the impartial medical consultant, M. Falkove,
M.D. (T. 38.)
In terms of exertional limitations, Dr. Falkove opined Plaintiff could frequently lift
and carry up to ten pounds and could occasionally lift up to twenty pounds. (T. 1057.)
He opined Plaintiff could sit six hours, stand four hours and walk two hours at one time.
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(T. 1058.) In an eight hour work day, Dr. Falkove opined Plaintiff could sit six hours and
walk for two hours. (Id.) Dr. Falkove noted Plaintiff could frequently reach (overhead and
all other), handle, finger, feel and push/pull with his right hand. (T. 1059.) He noted
Plaintiff could occasionally reach (overhead and all other) with his left hand. (Id.) Dr.
Falkove stated he could not answer how often Plaintiff could perform postural activities
(climb, balance, stoop, kneel, crouch, crawl). (T. 1060.) Finally, Dr. Falkove opined
Plaintiff had no environmental limitations. (T. 1061.)
The ALJ also relied on the opinions of Plaintiff’s treating chiropractor, Dr.
Petronsio; Plaintiff’s orthopedic surgeon, Dr. Carr; and the opinion of consultative
examiners Samuel Balderman, M.D. and Kalyani Ganesh, all of whom he afforded
“some weight.” (T. 39, 40.) In July of 2008 Dr. Petrosino opined Plaintiff had no
limitations sitting, standing, or walking. (T. 719.) Dr. Petrosino opined Plaintiff could
frequently lift ten pounds and could occasionally lift twenty-five pounds. (Id.) Dr.
Balderman opined Plaintiff could perform all postural activities and, like Dr. Petrosino,
opined he could stand, sit and walk for four hours each in an eight hour workday. (T.
918.) Dr. Ganesh opined Plaintiff had no limitations to sitting, standing or walking. (T.
654.) He opined Plaintiff had mild to moderate limitations for lifting, carrying, pushing
and pulling. (Id.)
Regarding Plaintiff’s mental non-exertional mental limitations, the ALJ afforded
“great weight” to the opinion of consultative examiner Dr. Shapiro. (T. 42.) The medical
opinion of Dr. Shapiro was also discussed in greater detail in Part IV.A. Therefore, the
ALJ’s RFC analysis is supported by substantial evidence, namely the medical opinions

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of Dr. Falkove, Dr. Shapiro, as well as the opinions of Dr. Petrosino and Plaintiff’s other
providers.
Plaintiff argues the ALJ failed to provide for a sit/stand option in his RFC analysis
in accordance with the medical opinion of Dr. Alkassm (Dkt. No.10 at 14 [Pl.’s Mem. of
Law].) Dr. Alkassm’s medical source statement is dated November 19, 2013, well after
the ALJ’s decision dated February 11, 2013. (T. 16.) As the Defendant correctly points
out, the medical evidence before the ALJ is void of Plaintiff’s need for a sit/stand option
prior to the decision date. (Dkt. No. 12 at 16 [Def.’s Mem. of Law].) And further, as the
Appeal Council noted in their decision, they will consider evidence that is “new and
material” and which relates to the period on or before the date of the ALJ’s hearing
decision. 20 C.F.R. § 404.970(b). The Appeals Council reviewed Dr. Alkassm’s medical
source statement and determined although it was new, it was completed after the ALJ’s
decision, therefore it was not relevant to the time period in question. (T. 2.)
Plaintiff argues Dr. Alkassm’s medical source statement provides greater
exertional limitations; however, as noted, Dr. Alkassm’s statement is not relevant to the
time period in question. Finally, Plaintiff’s argument that he cannot ambulate effectively
is also without support from the medical record. For these reasons, the ALJ did not err
in failing to provide for a sit/stand option, greater exertional limitations and ambulatory
limitations in his RFC analysis.
Therefore, the ALJ’s RFC analysis is supported by substantial evidence. For the
reasons stated above, the ALJ provided proper weight to the medical evidence in the
record in assessing, including Plaintiff’s treating sources and Dr. Clark.

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C.

Whether the ALJ Properly Evaluated Plaintiff’s Impairments

After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12 at
19-20 [Def.’s Mem. of Law].) The Court adds the following analysis.
Plaintiff argues the ALJ failed to give proper consideration to Plaintiff’s severe
and non-severe impairments. (Dkt. No. 10 at 18-20 [Pl.’s Mem. of Law].) As outlined in
Points IV. A. and B., the ALJ’s RFC analysis is supported by substantial evidence and
the ALJ properly evaluated all the medical evidence in the record. Therefore, the ALJ
gave proper consideration to Plaintiff’s impairment in combination at each step of the
sequential process, therefore, remand is not warranted.
D.

Whether the Commissioner Met Her Burden at Step Five

After carefully considering the matter, the Court answers this question in the
affirmative, for the reasons stated in Defendant’s memorandum of law. (Dkt. No. 12 at
20-23 [Def.’s Mem. of Law].) The Court adds the following analysis.
As stated in Points IV.A. and B., the ALJ’s RFC is supported by substantial
evidence. A VE testified that based on a hypothetical presented to her by the ALJ
(which ultimately became his RFC), that there were jobs in the national economy which
Plaintiff could perform. (T. 47.) The ALJ relied on this testimony in making his
determination that Plaintiff was not disabled.
Plaintiff also argues that he was not given advanced notice of the ALJ’s intended
use of a VE. (Dkt. No. 10 at 20 [Pl.’s Mem. of Law].) The Plaintiff’s argument is without
merit.

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Plaintiff had notice that a VE would be present at his hearing. The Appeals
Council Order dated October 5, 2011 remanding the case for further review, specifically
ordered the ALJ to “obtain evidence from a vocational expert.” (T. 296.) This Order was
sent to Plaintiff and his counsel. (T. 293.) Further, the Administration sent Plaintiff and
his counsel a “Notice of Hearing” dated October 1, 2012. (T. 341.) Written in bold print
on the first page is: “A VE will be present at the hearing.” (Id.) Plaintiff’s counsel
responded to the Notice of Hearing in a signed letter dated October 4, 2012. (T. 357.) In
his correspondence Plaintiff’s counsel acknowledged receipt of the letter dated October
1, 2012 and informed the Administration that he would be present at the time and place
shown on the Notice of Hearing. (T. 357.) Therefore, Plaintiff and his counsel had
proper notice that a VE would be present at his hearing.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 10) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 12)
is GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED;
and it is further is
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated:

June 26, 2015
Syracuse, NY

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