Cerio v. Colvin

Filing 15

MEMORANDUM-DECISION and ORDER. ORDERED that the Commissioner's decision denying Supplemental Security Income is AFFIRMED. Signed by U.S. Magistrate Judge Daniel J. Stewart on 10/26/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
JORDAN C. CERIO,
Plaintiff,
-v-

Civ. No. 5:14-CV-875
(DJS)1

CAROLYN W. COLVIN, Acting Comm’r of
Soc. Security,
Defendant.

APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
Attorney for Plaintiff
300 S. State Street
5th Floor, Suite 520
Syracuse, New York 13202

HOWARD D. OLINSKY, ESQ.

SOCIAL SECURITY ADMINISTRATION
Attorney for Defendant
Office of Regional General Counsel
Region II
26 Federal Plaza – Room 3904
New York, New York 10278

KRISTINA COHN, ESQ.

DANIEL J. STEWART
United States Magistrate Judge

1

On November 7, 2014, with the consent of the parties, the Honorable Gary L. Sharpe, thenChief United States District Judge, referred the matter to this Court to exercise full jurisdiction pursuant
to 28 U.S.C. § 636(c) and Federal Rule of Civil Procedure 73. See Dkt. No. 9.

MEMORANDUM-DECISION and ORDER
Plaintiff Jordan Cerio brings this action pursuant to 42 U.S.C. § 405(g) of the
Social Security Act, claiming that the Commissioner of Social Security improperly
denied his application for Supplemental Security Income (“SSI”). For the reasons that
follow, this Court upholds the Commissioner’s decision denying Social Security
benefits.
I. BACKGROUND
A. Facts
Jordan Cerio was born on November 16, 1987, and was twenty-five years old at
the time of the alleged onset disability date of January 24, 2012. Dkt. No. 8, Admin.
Transcript [hereinafter “Tr.”], at pp. 26-27. According to his mother, Plaintiff was
adopted at twelve months of age and because of complications at birth, including
hypoxia and the need for resuscitation and intubation, she was advised that her son
would likely become learning disabled. Tr. at p. 307. Plaintiff attended school, but as
a result of his learning disabilities, he was required to receive resource services and was
enrolled in special education classes. Tr. at pp. 48, 291-97 & 307.
In 2004, Plaintiff was administered the Wechsler Intelligence Scale for Children
(WISC–IV) as part of his Independent Education Program (“IEP”). Tr. at pp. 287-89.
His IQ (71); verbal comprehension (79); and perceptual reasoning (75) were all
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classified as borderline. Tr. at p. 288. His working memory was seen as deficient and
his processing speed was low average. Id. His scaled score for short-term auditory
memory was 2 out of 10. Id.
Plaintiff was seen in 2004 by Patricia Sly, the school psychologist, who opined
that the then sixteen-year-old was functioning with a borderline range of intellectual
ability and was learning disabled. Tr. at pp. 286 & 289. His strengths included longterm auditory memory, possession of a fund of general knowledge, and attention to
visual details. Tr. at p. 286. His cognitive defects at that time included a lack of
practical judgment and common sense reasoning; visual motor coordination; and shortterm auditory memory and immediate vision recall, all of which resulted in his
expressive language skills being significantly delayed. Id. With regard to reading
comprehension, he was occasionally able to decode enough words to decipher, using
context clues, the meaning of the sample passage, but he was unable to draw conclusions
or make inferences as required. Id.
Plaintiff was provided the assistance he needed to successfully complete school
and graduate with an IEP degree. Tr. at pp.48 & 290-97. That assistance included
having parts of his exams to read to him. Tr. at pp. 48 & 73. With that aid, he passed,

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and in some cases did well in, English, Social Studies, and Mathematics. Tr. at p. 290.2
Upon graduation from high school, Plaintiff was admitted to Northwestern University
in Ohio. However, he withdrew after approximately one week when he concluded that
he was not going to be provided with the level of assistance that would allow him to
pass. Tr. at p. 49. There also may have been some component of homesickness involved
in the decision to withdraw. Id.
Upon his return from college, Mr. Cerio resided with his parents. Tr. at pp. 52 &
246. Plaintiff’s work history is admittedly sporadic, and his most sustained work was
at Vanguard, where he was employed detailing cars. Tr. at pp. 50-51. He was let go
after six months as his employer determined that Cerio was not working fast enough.
Id. He attempted to obtain other work by filling out and submitting over one hundred
applications, but received only one interview and was not called back. Tr. at p. 67.
On the other hand, the evidence before the Administrative Law Judge (“ALJ”)
established that Plaintiff remained active and engaged. He cared for his toddler-aged
nieces; mowed the lawn and shoveled snow; socialized with friends; used Facebook;
texted; played role playing computer games; built model cars; did car repairs, such as
oil changes and a brake job; engaged in activities of daily living, including cooking his

2

It is important to note, however, that the grades reflected in his transcript were within the
confines of the special education classes, and were scored within that curriculum. Tr. at p. 71.
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own meals and doing chores; and obtained his driver’s license and drove his parents to
various locations. Tr. at pp. 54-55, 58, 247-51, 332, & 365.
B. Mental Health
Plaintiff’s background and the school assessment by Psychologist Patricia Sly are
discussed above. On February 23, 2012 a psychiatric consultive examination was
performed by Dr. Jeanne Shapiro; Plaintiff was twenty-four years-old at that time.

Tr.

at pp. 330-33. It was noted that while Plaintiff had learning problems, he did not report
any significant depression, manic symptoms, nor anxiety related symptoms.

Tr. at p.

331. At the exam, his manner of relating, social skills, speech, and presentation were
adequate, his thought processes were coherent, and his attention and concentration were
intact. Tr. at pp. 331-32. However, his intellectual functioning was “estimated to be
deficient.” Tr. at p. 332. The conclusions reached by Dr. Shapiro were summarized as
follows:
Vocationally, the claimant appears to be capable of understanding and
following simple instructions and directions if no reading is required to do
so. He appears to be capable of performing simple tasks with supervision
and perhaps some independently. He appears to be capable of maintaining
attention and concentration for tasks. He can regularly attend to a routine
maintain a schedule. He appears to be capable of learning some rote tasks.
He appears to be capable of making appropriate decisions. He appears to
be able to relate to and interact moderately well with others. He appears to
be capable of dealing with stress. Results of the examination suggest no
significant psychiatric problems.
Id.
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It was recommended that Mr. Cerio consider vocational training and job coaching, but
no evidence was presented that he ever did so. Tr. at pp. 47 & 333.
The state psychiatrist, Dr. R. Altmansberger, performed a psychiatric review on
March 8, 2012. Tr. at pp. 339-55. He concluded that Plaintiff had a medically
determinable impairment that did not precisely satisfy the listed criteria for Listing §
12.02. Tr. at p. 340. Specifically, Dr. Altmansberger concluded that Plaintiff had mild
restrictions of activities of daily living and difficulties maintaining social functioning,
moderate difficulties in maintaining concentration, persistence, and pace, and no
episodes of deterioration of extended duration. Tr. at p. 349. There was no evidence of
any “C” criteria. Tr. at p. 350. As part of his review, Dr. Altmansberger assessed
Plaintiff’s mental residual functional capacity. Tr. at pp. 353-55. In the category of
Understanding and Memory, Dr. Altmansberger found that Plaintiff was “not
significantly limited” in his abilities to remember locations and work-like procedures nor
in his ability to understand and remember very short and simple instructions. Tr. at p.
353. However, he found Plaintiff was moderately limited in his ability to understand and
remember detailed instructions. Id. In the category of Sustained Concentration and
Persistence, Dr. Altmansberger determined that Plaintiff was not significantly limited in
his ability to carry out very short and simple instructions, maintain attention and
concentration for extended periods, perform activities within a schedule, maintain regular
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attendance, be punctual within customary tolerances, and to work in coordination with
or proximity to others without being distracted by them. Id. Plaintiff was assessed to
be moderately limited in his ability to carry out detailed instructions, sustain an ordinary
routine without special supervision, complete a normal workday and workweek without
interruptions from psychologically based symptoms, and perform at a consistent pace
without an unreasonable number and length of rest periods. Tr. at pp. 353-54. Dr.
Altmansberger determined that Plaintiff had no significant limitations in the categories
listed under Social Interaction. Tr. at p. 354. And, in the category of Adaptation, Dr.
Altmansberger determined that Plaintiff had no significant limitations in his abilities to
be aware of normal hazards and take appropriate precautions and to travel in unfamiliar
places or use public transportation; Plaintiff was deemed to be moderately limited in his
abilities to respond appropriately to changes in the work setting and to set realistic goals
or make plans independently of others. Id. Dr. Altmansberger concluded that Plaintiff
“appears capable of performing simple tasks, maintaining [attention, concentration,] and
a schedule, can learn new tasks, can make decisions, relate with others and deal with
stress. Claimant is capable of working at a simple job. Tr. at p. 355.
Shortly after the October 4, 2012 Hearing with the ALJ, Plaintiff was seen by
psychologist Dr. Stephen Coleman at the request of his counsel for the preparation of an
evaluation report. Tr. at pp. 45 & 363-71. As part of the evaluation report, Dr. Coleman
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noted “[a] rather striking aspect of Mr. Cerio’s presentation is his rather hesitant, almost
stammering approach to expressive language, and at times he appears to be struggling
quite significantly in order to adequately project his thoughts internally.” Tr. at p. 365.
Dr. Coleman noted that Plaintiff’s IQ is borderline, his verbal comprehension is average,
and his visual perception is slightly below average. Tr. at p. 366. His working memory
index, however, was only in the 1st percentile, 63, and his processing speed index was
65. Id. In his summary and recommendations, Dr. Coleman states as follows:
Mr. Cerio . . . attained an overall borderline general intelligence range of
functioning, with a quite unusual pattern of strengths and disabilities/
“peaks and valleys” in this test protocol, ranging from solidly average
attainments and vital verbal skills, but also Mr. Cerio is markedly
challenged by other vital skills assessed. For example, short-term memory
and psychomotor speed are the probable reasons for his lack of success in
his other jobs, and these to deficits are clearly seen in the type of cognitive
assessment performed currently. Given Mr. Cerio’s major challenges in
this area, as well as in some visual perceptual areas of functioning, and
being extremely limited by numerical, money management, and language
arts skills deficiencies, Mr. Cerio is clearly challenged in obtaining
meaningful and gainful employment on a full-time basis. . . . Specifically,
relating to work expectations, Mr. Cerio would be very challenged to
maintain a consistent pace in terms of productivity, and to sustain an
ordinary routine without special supervision, given his various disabilities
described, and indeed would have difficulties in remembering and probably
carrying out even very short and simple instructions relating to routine and
sedentary tasks.
Tr. at p. 367 (emphasis in original).
Dr. Coleman further opined that it was
very understandable that a previous psychologist evaluating Mr. Cerio
would point to vocational training and job coaching as specific supports for
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Mr. Cerio . . . and it is very likely within the long-term future. . . . He is
indeed seen as disabled and was apparently eligible for such a program in
the past, and there is no current compelling reason why he would not be
continued to be considered as a candidate for this type of supportive
employment.
Id.
C. Physical Health
Plaintiff has had some history of right knee pain, obesity, and hypertension.
Tr. at p. 324. On January 12, 2011, Mr. Cerio saw Dr. Vigliotti at Onieda Health Care
complaining of knee pain. Id. At that time his weight was 268 pounds, down ten pounds
from the last visit. Id. He had physical therapy on the knee in 2010 and was
complaining of a recent reoccurrence of right knee pain, but his examination was
essentially normal. Id. Plaintiff saw Dr. Vigliotti again in September 2011, as a followup and in connection with his disability application. The doctor noted specifically that
Plaintiff had no physical limitations. Tr. at p. 325 (“I think he is going to have a tough
time getting full disability especially without any physical limitations.”).
Plaintiff also saw Dr. Vigliotti on August 13, 2012, with regard to his history of
high blood pressure and obesity. Tr. at p. 362. His blood pressure at the beginning of
the exam was 130/80, but it was retested and came back as normal. Id. He was referred
for blood work and diabetic testing, and his HbA1c was 5.4%, which was less than the
7% the ADA recommends for treatment. Tr. at p. 360. At the August 2012 exam, he
was six-feet tall and weighed 274 pounds. Weight loss was encouraged. Id.
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D. Procedural History
Plaintiff initially applied for child insurance benefits and SSI in June of 2007. Tr.
at p. 81. At that time, the alleged onset disability date was November 16, 1987. Id. The
claim was denied in September 2007. Id. A hearing was held, and ALJ Edward Pitts
concluded that Plaintiff was not disabled pursuant to sections 223(d) and 1614(a)(3)(A)
of the Social Security Act. Tr. at pp. 81-89. That decision was never appealed and
therefore became final. Tr. at pp. 26-27.
Thereafter, the present applications for child disability and SSI benefits were filed
on January 24, 2012. Tr. at p. 235. The applications included an onset disability date
of January 31, 2009, Tr. at p. 235, but that was orally amended at the hearing to conform
to the date of the application – January 24, 2012, Tr. at p. 43. Plaintiff’s applications
were denied initially on March 9, 2012. Tr. at p. 100. A hearing was thereafter held, and
subsequently ALJ Robert Gonzalez found that Plaintiff was not disabled.3 Tr at pp. 2635. That ruling was then reviewed by the Appeals Council, which adopted the ALJ’s
findings, with some modification, on June 24, 2014. Tr. at pp. 1-8. Exhausting all of his
options for review through the Social Security Administration tribunals, Plaintiff now
brings this timely appeal.

3

With regard to the application for child benefits, the ALJ noted that the previous determination
on Plaintiff’s 2007 application had res judicata effect, thus precluding review of the 2012 application.
Tr. at pp. 26-27.
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II. DISCUSSION
A. Standard of Review
Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to
employ a de novo review, but rather to discern whether substantial evidence supports the
Commissioner’s findings and that the correct legal standards have been applied. See
Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F. Supp. 324,
325-26 (N.D.N.Y. 1997) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d
Cir. 1987). Succinctly defined, substantial evidence is “more than a mere scintilla,” it
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938).
The ALJ must set forth the crucial factors supporting the decision with sufficient
specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ’s
findings are supported by substantial evidence, the court may not interject its
interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988); 42 U.S.C. § 405(g). Where the weight of the evidence,
however, does not meet the requirement for substantial evidence, or where a reasonable
basis for doubt exists as to whether the correct legal principles were applied, the ALJ’s
decision may not be affirmed. Johnson v. Bowen, 817 F.2d at 986.

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B. Determination of Disability
The SSI program, 42 U.S.C. § 1381, et seq., is a federal program providing
benefits to needy aged, blind, or disabled individuals who meet the statutory income and
resource limitations. 20 C.F.R. § 416.110. The SSI program was designed to replace the
former federally assisted state welfare programs for the aged, blind, or disabled. Id.
While the SSI program has special eligibility requirements that relate to establishing
need,4 the requirements for establishing disability, found at 42 U.S.C. § 1382c, are
identical to the requirements under Title II of the Social Security Act for entitlement to
disability insurance benefits. See 42 U.S.C. § 423(d). Therefore, the vast case law
interpreting the disability provisions under Title II may be relied upon in this case. See
Donato v. Sec’y of Health and Human Servs., 721 F.2d 414, 418 n.3 (2d Cir. 1983)
(noting that decisions under Titles II and XVI are cited interchangeably).
To be considered disabled within the meaning of the Social Security Act, a
plaintiff must establish an “inability 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). Furthermore, the

4

SSI benefits may not be paid unless the claimant meets the income and resource requirements
of 42 U.S.C. §§ 1382a, 1382b, and 1382c(a)(3)(A).
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claimant’s physical or mental impairments must be of such severity as to prevent
engagement in any kind of substantial gainful work which exists in the national
economy. Id. at § 423(d)(2)(A).
In determining whether a claimant is disabled, the Commissioner follows a fivestep analysis set forth in the Social Security Administration Regulations. 20 C.F.R. §
416.920. At Step One, the Commissioner “considers whether the claimant is currently
engaged in substantial gainful activity.” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
1982). If the claimant is engaged in substantial gainful activity, he or she is not disabled
and the inquiry ends. 20 C.F.R. § 416.920(b). If the claimant is not engaged in
substantial gainful activity, the Commissioner proceeds to Step Two and assesses
whether the claimant suffers from a severe impairment that significantly limits his or her
physical or mental ability to do basic work activities. Id. at § 416.920(c). If the claimant
suffers from a severe impairment, the Commissioner considers at Step Three whether
such impairment(s) meets or equals an impairment listed in Appendix 1, in Part 404,
Subpart P of the Regulations. Id. at § 416.920(d). The Commissioner makes this
assessment without considering vocational factors such as age, education, and work
experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant has such an
impairment the inquiry ceases as he or she is presumed to be disabled and unable to
perform substantial gainful activity. Id. If the claimant’s impairment(s) does not meet
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or equal the listed impairments, the Commissioner proceeds to Step Four and considers
whether the claimant has the residual functional capacity (RFC)5 to perform his or her
past relevant work despite the existence of severe impairments. 20 C.F.R. § 416.920(e).
If the claimant cannot perform his or her past work, then at Step Five, the Commissioner
considers whether the claimant can perform any other work available in the national
economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. § 416.920(g)(i).
Initially, the burden of proof lies with the claimant to show that his or her
impairment(s) prevents a return to previous employment (Steps One through Four).
Berry v. Schweiker, 675 F.2d at 467 (citing Jock v. Harris, 651 F.2d 133, 135 (2d Cir.
1981)). If the claimant meets that burden, the burden then shifts to the Commissioner
at Step Five to establish, with specific reference to medical evidence, that the claimant’s
physical and/or mental impairment(s) are not of such severity as to prevent him or her
from performing work that is available within the national economy. Id.; 42 U.S.C. §
423(d)(2)(A); see also White v. Sec’y of Health and Human Servs., 910 F.2d 64, 65 (2d
Cir. 1990). In making this showing at Step Five, the claimant’s RFC must be considered
along with other vocational factors such as age, education, past work experience, and
transferability of skills. 20 C.F.R. § 416.920(g); see Draegert v. Barnhart, 311 F.3d 468
5

“Residual functional capacity” is defined by the Regulations as follows: “Your impairment(s),
and any related symptoms, such as pain, may cause physical and mental limitations that affect what you
can do in a work setting. Your residual functional capacity is the most you can still do despite your
limitations.” 20 C.F.R. § 416.945(a)(1).
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(2d Cir. 2002); see also State of N. Y. v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
C. ALJ Gonzalez’s Findings
Using the five-step disability evaluation, the ALJ found that: 1) Jordan Cerio had
not engaged in any substantial gainful activity since January 24, 2012, the alleged onset
date; 2) he had severe medically determinable impairments, namely, learning disabilities,
borderline intellectual functioning, high blood pressure, and obesity; 3) his severe
impairments do not meet nor medically equal any impairment listed in Appendix 1,
Subpart P of Social Security Regulation Part 404; 4) he retained the RFC to perform a
full range of work at all exertional levels, but with the following non-exertional
limitations: “he would be restricted to understanding, remembering, and carrying out no
more than unskilled work which would include following simple routine tasks, and being
able to read short 3 to 4 word instructions; and responding appropriately to supervision,
coworkers, and usual work situations plus dealing with changes in routine work setting”;
and accordingly could not perform any past relevant work; but 5) considering the
claimant’s age, education, work experience, and RFC, there are jobs that exist in
significant numbers in the national economy that the claimant can perform. Tr. at pp. 2635. Therefore, ALJ Gonzalez determined that Plaintiff had not been under a disability,
as defined in the Social Security Act, from January 24, 2012 through the date of the
decision. Tr. at p. 35.
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The matter was then reviewed by the Appeals Council, which agreed that Mr.
Cerio had not engaged in substantial gainful activity since January 24, 2012; that he has
severe impairments, which do not meet nor equal in severity any impairment in the
Listing of Impairments; he is not capable of performing past relevant work; and a finding
of “not disabled” is appropriate under the framework of section 204.00 in the MedicalVocational Guidelines (the “Grids”). Tr. at pp. 4-5. With regard to Plaintiff’s
impairments, however, the Appeals Council concluded that the ALJ was incorrect when
he concluded that the Plaintiff’s high blood pressure and obesity constituted severe
impairments. Tr. at p. 5. In light of the testimony in the record that the claimant’s
activities were not in any way limited by his weight or high blood pressure, the Appeals
Council concluded that these conditions do not have more than a minimal impact on
Cerio’s ability to perform basic work activities and are, therefore, non-severe
impairments. Id.
D. Plaintiff’s Contentions
In a comprehensive Brief, Plaintiff contends that the Commissioner’s decision
should be reversed because: 1) the ALJ erred in evaluating the opinions from the
consultive examiners, and therefore his RFC determination is not supported by
substantial evidence; 2) the ALJ’s credibility determination was not supported by
substantial evidence; and 3) the ALJ’s Step Five determination was not supported by
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medical evidence and the ALJ should have consulted with a vocational expert (“VE”).
Dkt. No. 12, Pl.’s Br., at pp. 10-22. The Court will consider each of these contentions
separately.
E. Evaluation of Medical Opinions and the RFC Finding
The ALJ is required to assess a claimant’s RFC and determine at Step Four
whether such RFC precludes the performance of his or her past relevant work. 20 C.F.R.
§ 416.920(e). If it is determined that it does, then as a final matter, the agency must
examine whether the claimant can do any other work. Id. Essentially, the RFC is an
assessment of “what an individual can still do despite his or her limitations.” Melville
v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting Social Security Ruling 96-8p, 1996 WL
374184, at *2, Policy Interpretation Ruling Titles II and XVI: Assessing Residual
Functional Capacity in Initial Claims (S.S.A. 1996)).

“Ordinarily, RFC is the

individual’s maximum remaining ability to do sustained work activities in an ordinary
work setting on a regular and continuing basis, and the RFC assessment must include a
discussion of the individual’s abilities on that basis. A ‘regular and continuing basis’
means 8 hours a day, for 5 days a week, or an equivalent work schedule.” Id. When
making the RFC determination, the ALJ considers a claimant’s physical abilities, mental
abilities, and other limitations that could interfere with performing work activities on a
regular and continuing basis. 20 C.F.R. § 416.945(a)-(c). An RFC finding will be
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upheld where there is substantial evidence in the record to support each requirement
listed in the Regulations. See LaPorta v. Bowen, 737 F. Supp. 180, 181. (N.D.N.Y
1990).
Here, the ALJ reviewed the medical evidence in determining Cerio’s RFC, and
assessed different weights to each doctor’s opinion. Tr. at pp. 33-34. In particular, ALJ
Gonzales gave great weight to the opinion of Dr. Altmansberger; gave some weight to
the opinion of Dr. Shapiro; and gave little weight to the opinion of Dr. Coleman. Id. The
ALJ afforded significance to the fact that Dr. Altmansberger is an agency doctor with
expertise in mental health. Tr. at p. 33. Conversely, the ALJ discounted the significance
of Dr. Coleman’s opinion because he valuated Mr. Cerio only for the purpose of
preparing a report and because his opinions conflicted with substantial evidence in the
record. Id. While Plaintiff objects to this assignment of significance, as correctly noted
by Defendant, conflicts in the medical evidence are for the Commissioner to resolve.
Dkt. No. 13, Def.’s Br., at pp. 12-18. Veino v. Barnhart, 312 F. 3d 578, 588 (2d Cir.
2002) (citing Richardson v. Perales, 402 U.S. 389, 399 (1971)). Notably, the treating
physician rule does not apply in this case as the Plaintiff had no treating physician other
than Dr. Vigliotti, who only addressed Plaintiff’s physical ailments and concluded he had
no physical limitations. Tr. at pp. 320-25. Therefore the issue for the Court is not
whether it would assign the same significance to the medical opinions, but rather whether
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the conclusion of the ALJ was supported by substantial evidence, considering the length
of the treatment relationship; the nature and extent of treatment; the degree to which the
physician’s opinion is supported by relevant evidence; and other factors. 20 C.F.R.
416.927(c)(2)-(6).
Plaintiff argues that the ALJ should have accepted Dr. Coleman’s opinion that
Plaintiff was seriously limited with respect to the mental abilities needed to do unskilled
work, and in particular in the following categories: remembering work-like procedures;
understanding and remembering very short and simple instructions; maintaining attention
for a two-hour segment; maintaining regular attendance and being punctual within
customary, usually strict tolerances; sustaining an ordinary routine without special
supervision; and performing at a consistent pace without an unreasonable number and
length of rest periods. Dkt No. 12, Pl.’s Br., at pp. 12-18. The Commissioner disputes
that the record in the case, and in particular the prior activities of Plaintiff, support Dr.
Coleman’s opinions, and asserts that the record is consistent with the findings of Dr.
Altmansberger. Dtk. No. 13, Def.’s Br., at pp. 5-9. In particular, the Defendant notes
and the record reflects that despite the severe limitations indicated by Dr. Coleman, Mr.
Cerio was able to graduate from high school and be accepted at college; to participate
in community plays in which he had speaking/singing roles; was able to obtain his
driver’s license and drive himself and his parents as well as utilize the GPS system on
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his phone; could take care of his toddler-aged nieces; provide for his dog; shovel snow,
garden, and mow the lawn; could engage in automotive repair; was able to utilize a
computer or similar device to play computer games and to text and use Facebook to
communicate with his friends; could build model cars; make meals and perform chores;
and could assist his father in doing simple accounting tasks, such as filling out his
father’s client’s W-2 forms. Id.; Tr. at pp. 48-76, 237, 239, 247, & 298. Defendant also
correctly notes Dr. Coleman’s opinion regarding Plaintiff’s inability to do unskilled work
was contradicted by the reports of Drs. Altmansberger and and Shapiro. Tr. at pp. 6-7.
Dr. Shapiro assessed that Plaintiff could follow simple directions; perform simple tasks
with supervision and perhaps some independently; maintain attention and concentration
for task; make appropriate decisions; and relate and interact moderately well with others
and was capable of dealing with stress. Tr. at p. 332. “The basic mental demands of
competitive, remunerative, unskilled work include the ability (on a sustained basis) to
understand, carry out and remember simple instructions; respond appropriately to
supervision, co-workers and usual work situations; and to deal with changes in a routine
work setting.” Social Security Ruling 85-15, 1985 WL 56857, Program Policy
Statement Titles II and XVI: Capability to do Other Work – The Medical-Vocational
Rules as a Framework for Evaluating Solely Non-Exertional Impairments (S.S.A. 1985).

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While not specifically addressing the conflicts in the Dr. Shapiro’s and Dr.
Coleman’s opinions, Plaintiff correctly notes that there is a conflict between the RFC and
Dr. Shapiro’s February 2012 report. Dkt. No. 12, Pl.’s Br., at p. 17 n.6. In particular, the
RFC indicates that Plaintiff would be able to follow simple routine tasks and be able to
read short three-to-four word instructions. Tr. at p. 32. Dr. Shapiro noted in her report
that Plaintiff could “[follow] simple instruction and directions if no reading is required
to do so.” Tr. at p. 332 (emphasis added). During that examination, and repeated at the
hearing, Plaintiff relayed that he was unable to be employed because his reading and
writing skills are poor. Tr. at pp. 69 & 330. Plaintiff maintains that this conflict requires
a remand. Dkt. No.12, Pl.’s Br., at pp. 17-18. The Court disagrees.
In his disability application, Plaintiff did not claim that he was illiterate, but did
state that he could only read and write at a first grade level. Tr. at p. 250. Further,
Plaintiff notes that while he can follow spoken instructions, he cannot follow written
ones. Tr. at p. 253. Therefore, due to his poor reading and writing skills, Plaintiff
maintains that he was unable to keep a job. Tr. at p. 330. A reading comprehension test
was performed by the School Psychologist, Patricia Sly, in 2004. Tr. at p. 286. In that
examination she concluded that Cerio could decipher the text, but was unable to draw
conclusions or make inferences as required. Id. At the disability hearing, however, the
following question was asked and answered:
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Q.

A.
Tr. at p. 63.

What about like short instructions, for example if there is a string of
easy words like pick up this book and move it to the other room,
would you be able to read something like that?
I could read it with some difficulty.

Plaintiff further acknowledges that he can read and write, although with some
limitations. Tr. at pp. 52-3, 62-3, 239, & 251. Plaintiff also acknowledges that he texts
and Facebooks with his friends, a process that would involve reading and writing; and
that he filled out W-2 forms and applications, thus providing support for the ALJ’s RFC
determination. Tr. at pp. 52-54 & 247.
The Court concludes that the ALJ was within his discretion to credit the
conclusions of the agency doctor, and to give little weight to Dr. Coleman, whose
opinion that Plaintiff was seriously limited in remembering work-like procedures,
understanding and remembering short and simple instructions, maintaining attention for
a two-hour segment, and in sustaining an ordinary routine without special supervision,
was felt to be contradicted by the proof of activities that Plaintiff had already engaged
in.
F. The ALJ’s Credibility Determination
As part of his decision, ALJ Gonzalez noted that Plaintiff exhibited no debilitating
symptoms at the one-hour hearing and was able to concentrate and stay on point. Tr. at
p.33. A review of the transcript reveals appropriate responses to questions. Tr at p. 40-22-

76. Plaintiff objects to the ALJ’s conclusions in this regard, noting that the ALJ has no
particular expertise in mental capacity issues. Dkt. No. 12, Pl.’s Br., at p. 20. However,
it is not an automatic error for the ALJ to consider his or her observations. In particular,
the Regulations expressly provide that “observations by our employees and other
persons” will be treated as evidence. 20 C.F.R. § 416.929(c)(3). In instances where the
individual attends an administrative proceeding conducted by the adjudicator, the ALJ
may “consider his or her own recorded observations of the individual as part of the
overall valuation of credibility of the individual” claimant. See Shaal v. Apfel, 134 F.3d
496, 502 (2d Cir. 1998) (quoting SSR 96-7p, 61 Fed. Reg. 34483 at 34486, Titles II and
XVI: Evaluation of Symptoms in Disability Claims: Assessing the Credibility of an
Individual’s Statements (SSA 1996)); Carroll v. Sec’y of Health and Human Servs., 705
F.2d 638, 643 (2d Cir. 1983) (citing Freeman v. Schweiker, 681 F.2d 727, 731 (11th Cir.
1982)) (noting that an ALJ’s observations of the claimant sitting at the hearing without
pain, being that of a lay person, is entitled to limited weight). The same rationale should
apply in cases involving mental impairments. In the present case, Dr. Coleman opined
that one of the startling components of Plaintiff’s condition was his inability to express
himself, and that this was a factor in his unemployability. Tr. at pp. 365 & 367. The ALJ
could then consider the fact that Plaintiff expressed himself in a competent fashion at the
hearing in determining credibility issues. Tr. at pp. 48-76. He could also consider the
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field office disability report, which noted “Claimant was nice and cooperative. He
answered all questions well and seemed to be able to recall dates and work history. Did
have a little trouble processing some questions, but only a few.” Tr. at p. 237.
There are, of course, significant limitations to these observations. For example,
Dr. Coleman indicated that Plaintiff would have difficulty concentrating for periods of
over two hours. Tr. at p. 370. The disability hearing lasted approximately one hour. Tr.
at pp. 42 & 77. Therefore Plaintiff’s concentration for that period of time is not
inconsistent with Dr. Coleman’s opinion. In addition, Dr. Coleman noted significant
deficiencies in Plaintiff’s short-term memory and reading ability, none of which were
implicated by the hearing questions and responses. See Tr. at pp. 48-76 & 370.
Thus, if the ALJ were to utilize his observations as the sole basis for contradicting
the opinion of Dr. Coleman, this would certainly have been error and unsupportable.
However, the ALJ properly gave his observations only slight significance and primarily
rested his conclusions upon the contradictory report of the state doctor and the fact that
Plaintiff’s prior activities were not consistent with the limitations expressed by Dr.
Coleman. This conclusion was, in the Court’s opinion, supported by the substantial
evidence.
G. Failure to Utilize a Vocational Expert
Plaintiff argues that the ALJ erred by failing to consult a vocational expert (“VE”)
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and relying instead on the Medical-Vocational Guidelines in 20 C.F.R. Pt. 404, Sub part
P, App 2. Dkt. No. 12, Pl.’s Br., at pp. 21-22. If a claimant has non-exertional
limitations that “significantly limit the range of work permitted by his external
limitations[,]” then the ALJ is required to consult with a VE. Bapp v.Bowen, 802 F.2d
601, 605 (2d Cir. 1986). However, the mere existence of a non-exertional impairment
does not automatically preclude reliance on the Grids. Id. at 603. A non-exertional
impairment significantly limits a claimant’s range of work when it causes an additional
loss of work capacity beyond a negligible one. Id. at 605-06.
The ALJ found that Plaintiff’s mental condition did not limit his ability to perform
unskilled work, including carrying out simple instructions, dealing with work changes
and responding to supervision. Tr. at p. 32. Thus, the non-exertional limits on Plaintiff
did not result in any additional loss of work capacity, and the ALJ’s use of the Grids,
without reference to a VE, was appropriate. Tr. at p. 35; see Zabula v. Asture, 595 F.3d
402, 410-11 (2d Cir. 2010).
It appears that Plaintiff accepts this general framework, but urges that since the
ALJ determined that Plaintiff was severely impaired by obesity, his physical limitation,
combined with the mental limitations, required the use of a VE. Dkt. No. 12, Pl.’s Br.,
at pp. 21-22. The difficulty with this argument is that there is no evidence in the record
of any physical limitation of the Plaintiff, and indeed his treating physician opined that
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he had no such physical limitations. Tr. at pp. 320-29 & 358-62; see Mancuso v. Astrue,
361 Fed. App’x 176, 178 (2d Cir. 2010). The Appeals Council utilized this fact and
modified the ALJ’s decision, omitting obesity and high blood pressure as a severe
impairment. Tr. at p.5. This lack of evidence of external limitations further validates the
non-use of a VE. Accordingly, Plaintiff’s argument in this regard is rejected.
III. CONCLUSION
For the reasons stated herein, it is hereby
ORDERED, that the Commissioner’s decision denying Supplemental Security
Income is AFFIRMED; and it is further
ORDERED, that the Clerk of the Court serve a copy of this MemorandumDecision and Order upon the parties to this action.
Date: October 26, 2015
Albany, New York

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