Atiyeh v. Colvin
MEMORANDUM DECISION AND ORDER: that the Commissioner's decision is Affirmed, and plaintiff's complaint is Dismissed and that judgment be entered for the defendant. Signed by US Magistrate Judge Andrew T. Baxter on 1/6/2017. (hmr)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
COMMISSIONER OF SOCIAL SECURITY,
HOWARD D. OLINSKY, ESQ., for Plaintiff
SIXTINA FERNANDEZ, Special Asst. U.S. Attorney for Defendant
ANDREW T. BAXTER, U.S. Magistrate Judge
MEMORANDUM DECISION and ORDER
This matter was referred to me, for all proceedings and entry of a final judgment,
pursuant to the Social Security Pilot Program, N.D.N.Y. General Order No. 18, in
accordance with the provisions of 28 U.S.C. § 636(c), Fed. R. Civ. P. 73, N.D.N.Y.
Local Rule 73.1 and the consent of the parties. (Dkt. Nos. 4, 6).
Plaintiff protectively filed applications for child’s insurance benefits and
Supplemental Social Security Income (“SSI”) benefits on November 13, 2013, alleging
disability beginning June 11, 2009. (Administrative Transcript (“T”) at 13, 206-22).
The applications were denied initially on January 7, 2014. (T. 67-86). Administrative
Law Judge (“ALJ”) Elizabeth W. Koennecke held a hearing on June 29, 2015, at which
plaintiff testified. (T. 28-42). The ALJ held a supplemental hearing on October 28,
2015, at which Vocational Expert (“VE”) Robert Baker testified. (T. 43-51). On
November 19, 2015, the ALJ found plaintiff was not disabled. (T. 10-27). The ALJ’s
decision became the Commissioner’s final decision when the Appeals Council denied
plaintiff’s request for review on March 18, 2016. (T. 1-4).
GENERALLY APPLICABLE LAW
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI
disability benefits must establish that he is “unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or which has lasted or can be expected to last for a
continuous period of not less than twelve months . . . .” 42 U.S.C. § 1382c(a)(3)(A). In
addition, the plaintiff’s
physical or mental impairment or impairments [must be] of such severity
that he is not only unable to do his previous work but cannot, considering
his age, education, and work experience, engage in any other kind of
substantial gainful work which exists in the national economy, regardless
of whether such work exists in the immediate area in which he lives, or
whether a specific job vacancy exists for him, or whether he would be
hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections
404.1520 and 416.920, to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment 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 . . . . Assuming the
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 can perform.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see 20 C.F.R. §§ 404.1520,
416.920. The plaintiff has the burden of establishing disability at the first four steps.
However, if the plaintiff establishes that her impairment prevents her from performing
her past work, the burden then shifts to the Commissioner to prove the final step. Id.
Scope of Review
In reviewing a final decision of the Commissioner, a court must determine
whether the correct legal standards were applied and whether substantial evidence
supported the decision. Selian v. Astrue, 708 F.3d at 417; Brault v. Soc. Sec. Admin,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012); 42 U.S.C. § 405(g)). Substantial evidence
is “such relevant evidence as a reasonable mind might accept as adequate to support a
conclusion.” Talavera v. Astrue, 697 F3d 145, 151 (2d Cir. 2012). It must be “more
than a scintilla” of evidence scattered throughout the administrative record. Id.
However, this standard is a very deferential standard of review “ – even more so than
the ‘clearly erroneous standard.’” Brault, 683 F.3d at 448.
“To determine on appeal whether an ALJ’s findings are supported by substantial
evidence, a reviewing court considers the whole record, examining the evidence from
both sides, because an analysis of the substantiality of the evidence must also include
that which detracts from its weight.” Williams on behalf of Williams v. Bowen, 859
F.2d 255, 258 (2d Cir. 1988). However, a reviewing court may not substitute its
interpretation of the administrative record for that of the Commissioner, if the record
contains substantial support for the ALJ’s decision. Id. See also Rutherford v.
Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
An ALJ is not required to explicitly analyze every piece of conflicting evidence
in the record. See, e.g., Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983); Miles
v. Harris, 645 F.2d 122, 124 (2d Cir. 1981) (we are unwilling to require an ALJ
explicitly to reconcile every conflicting shred of medical testimony). However, the ALJ
cannot “‘pick and choose’ evidence in the record that supports his conclusions.” Cruz
v. Barnhart, 343 F. Supp. 2d 218, 224 (S.D.N.Y. 2004); Fuller v. Astrue, No.
09-CV-6279, 2010 WL 5072112, at *6 (W.D.N.Y. Dec. 6, 2010).
As of the date of the administrative hearing on March 6, 2014, plaintiff was 23
years old. (T. 32). He resided with his father, who took care of all of the cooking,
grocery shopping, and other household responsibilities. (Id.). Plaintiff had attended
school up to the tenth grade in regular education classes, but had dropped out after
being held back due to poor grades. (T. 301, 314, 334). He had enrolled in a general
equivalency diploma (“GED”) program, but did not complete it. (T. 327). Plaintiff had
never held full-time employment. He had worked part-time as a receptionist as part of a
training program while being treated at Hutchings Psychiatric Center in 2013, and in a
temporary position at the New York State Fair in 2012. (T. 245, 334).
Plaintiff reported that he was unable to work due to physical and mental
impairments, including right wrist pain, depression, migraines, anxiety, and frequent
panic attacks. (T. 35-40, 244, 313). In October 2014, plaintiff had surgery to address an
unstable distal radio-ulna joint (“DRUJ”) in his right wrist that was believed to have
resulted from a childhood injury. (T. 37, 505). Post-operative treatment notes
documented improvement in the wrist’s range of motion and stability, but that plaintiff
was still lacking in significant supination1, due in part to poor attendance at physical
therapy. (T. 500-502). At his March 2014 hearing, plaintiff was wearing a splint on his
right wrist, and testified that he still had pain and difficulty lifting with his right hand.
The record shows that plaintiff had never been hospitalized for his mental health
impairments, but had received regular psychiatric treatment since July 2011.2 (T. 31333, 341-493). He had seen a variety of mental health professionals, and had been
variously diagnosed with bipolar disorder, a learning disorder, depression, anxiety, and
anger management issues. (T. 316, 332, 354, 590). He frequently argued with his
psychiatrists and counselors over the proper treatment approach, the extent of his
progress, and his refusal to take psychiatric medication. (T. 341, 368, 370, 388, 442,
Supination is the rotation of the forearm and hand so that the palm faces forward or upward
and the radius lies parallel to the ulna. https://www.merriam-webster.com/dictionary/supination
Plaintiff had previously applied for SSI and child’s insurance benefits in January 2010, and
had alleged a learning disability and borderline intellectual functioning. ALJ Thomas Tielen’s May 3,
2011 decision on that application, which was included as part of the record in this case, does not
describe any prior psychiatric treatment. (T. 52-66).
The ALJ’s decision provides a detailed statement of the medical and other
evidence of record. (T. 16-20). Rather than reciting this evidence at the outset, the
court will discuss the relevant details below, as necessary to address the issues raised by
THE ALJ’S DECISION
The ALJ determined that plaintiff had not engaged in substantial gainful activity
since May 4, 2011, the day after the denial of a prior application for benefits. (T. 15).
The ALJ found that plaintiff had the following severe impairments at step two of the
sequential evaluation: residuals of a right wrist repair and a mental impairment
(variously characterized). (T. 16). The ALJ noted that the mental health professionals
had offered a variety of diagnoses, including bipolar disorder, a learning disorder,
depression, an unspecified intellectual disability, and anxiety. (Id.). At the third step,
the ALJ determined that plaintiff’s impairments did not meet or medically equal the
criteria of any listed impairments in Appendix 1 to 20 C.F.R. Part 404, Subpart P. (T.
The ALJ found at step four of the analysis that plaintiff had the RFC to perform
less than the full range of light work. (T. 18-20). Taking plaintiff’s wrist injury into
account, the ALJ found that plaintiff could lift and carry up to twenty pounds
occasionally and up to ten pounds frequently, with no other exertional limitations. (T.
18-19). In light of plaintiff’s mental limitations, the ALJ found that plaintiff could
understand and follow simple instructions and directions; could perform simple tasks
independently, could maintain attention and concentration for simple tasks; could
regularly attend to a routine and maintain a schedule; and could handle simple,
repetitive work-related stress, defined as making occasional decisions directly related to
the performance of simple tasks in a position with consistent job duties that did not
require plaintiff to supervise or manage the work of others. (Id.). The ALJ also found
that plaintiff should avoid work requiring more complex interaction or joint effort to
achieve work goals, and should have no contact with the public. (Id.).
In making the RFC determination, the ALJ stated that she considered all of the
plaintiff’s symptoms, and considered the extent to which those symptoms could
“reasonably be accepted as consistent with the objective medical evidence and other
evidence, based on the requirements of 20 C.F.R. 404.1529 and 416.929” and Social
Security Rulings (“SSRs”) 96-4p and 96-7p. (T. 18). Finally, the ALJ stated that she
considered opinion evidence pursuant to 20 C.F.R. §§ 404.1527 and 416.927 and SSRs
96-2p, 96-5p, 96-6p, and 06-3p. (Id.).
The ALJ also found that plaintiff’s medically determinable impairments could
reasonably be expected to cause his alleged symptoms, but that plaintiff’s statements
regarding the intensity, persistence, and limiting effects of those symptoms were not
entirely credible in light of the record evidence. (T. 19-20). The ALJ next determined
that plaintiff had no past relevant work. (T. 20). Relying on the VE testimony, the ALJ
found that there were jobs that existed in significant numbers in the national economy
that plaintiff could perform. (T. 21-22). Accordingly, the ALJ determined that plaintiff
was not disabled from the onset date through the date of the decision, and denied
plaintiff’s application for child’s insurance benefits3 and SSI. (T. 22).
ISSUES IN CONTENTION
Plaintiff raises the following arguments:
The ALJ’s RFC assessment was not supported by substantial evidence due
to the ALJ’s failure to properly evaluate the medical evidence. (Pl.’s Br. at
12-15) (Dkt. No. 9).
The ALJ failed to fully and fairly develop the record because she did not
order that plaintiff undergo intelligence testing to determine whether
plaintiff had an intellectual disability that affected his ability to perform
substantial gainful activity. (Pl.’s Br. at 15-16).
The ALJ’s Step 5 determination was not supported by substantial
evidence. (Pl.’s Br. at 17).
Defendant argues that the Commissioner’s determination was supported by substantial
evidence and should be affirmed. (Def.’s Br. at 7-12) (Dkt. No. 10). For the following
reasons, this court agrees with defendant and will dismiss the complaint.
RFC is “what [the] individual can still do despite his or her limitations.
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 . . . .” A
“regular and continuing basis” means eight hours a day, for five days a week, or an
Plaintiff would have been entitled to child’s insurance benefits if he were found to have had a
disability that began before he reached the age of 22. 20 C.F.R. § 404.350(5).
equivalent work schedule. Balles v. Astrue, No. 3:11-CV-1386 (MAD), 2013 WL
252970, at *2 (N.D.N.Y. Jan. 23, 2013) (citing Melville v. Apfel, 198 F.3d 45, 52 (2d
Cir. 1999) (quoting SSR 96–8p, 1996 WL 374184, at *2)).
In rendering an RFC determination, the ALJ must consider objective medical
facts, diagnoses and medical opinions based on such facts, as well as a plaintiff’s
subjective symptoms, including pain and descriptions of other limitations. 20 C.F.R
§§ 404.1545, 416.945. See Martone v. Apfel, 70 F. Supp. 2d 145, 150 (N.D.N.Y. 1999)
(citing LaPorta v. Bowen, 737 F. Supp. 180, 183 (N.D.N.Y. 1990)). An ALJ must
specify the functions plaintiff is capable of performing, and may not simply make
conclusory statements regarding a plaintiff’s capacities. Martone v. Apfel, 70 F. Supp.
2d at 150 (citing Ferraris v. Heckler, 728 F.2d 582, 588 (2d Cir. 1984); LaPorta v.
Bowen, 737 F. Supp. at 183; Sullivan v. Secretary of HHS, 666 F. Supp. 456, 460
(W.D.N.Y. 1987)). The RFC assessment must also include a narrative discussion,
describing how the evidence supports the ALJ’s conclusions, citing specific medical
facts, and non-medical evidence. Trail v. Astrue, No. 5:09-CV-1120, 2010 WL
3825629 at *6 (N.D.N.Y. Aug. 17, 2010) (citing Social Security Ruling (“SSR”) 96-8p,
1996 WL 374184, at *7).
Plaintiff does not challenge the ALJ’s assessment of his physical limitations.
However, plaintiff argues that the ALJ did not properly weigh the medical evidence
regarding plaintiff’s mental impairments, particularly the evidence regarding plaintiff’s
social functioning, ability to handle stress, and ability to make appropriate decisions.
(Pl.’s Br. at 12-13). This court disagrees, and concludes that the ALJ’s assessment of
plaintiff’s mental impairments was supported by substantial evidence.
As noted above, the ALJ limited plaintiff to simple, routine, and repetitive tasks.
(T. 18-20). In reaching the mental RFC determination, the ALJ gave “considerable
weight” to the opinion of Dr. S. Shapiro, the state agency psychological consultant,
who concluded that plaintiff could perform simple work so long as it required only
limited contact with the general public.4 (T. 20, 73). The state agency consultant based
his opinion on his review of the available medical records, including Dr. Jeanne
Shapiro’s consultative psychiatric examination report. (T. 69, 73).
Plaintiff contends that the ALJ erred in assigning the state consultant’s opinion
considerable weight, because the opinion came from a non-examining source. (Pl.’s Br.
at 12). However, a non-examining state agency consultant’s opinion may be relied
upon where it is supported by other record evidence. See Frey ex rel. A.O. v. Astrue,
485 F. App’x 484, 487 (2d Cir. 2012) (summary order) (“The report of a State agency
medical consultant constitutes expert opinion evidence which can be given weight if
supported by medical evidence in the record.”); Swan v. Astrue, No. 09-CV-486-S,
2010 WL 3211049, at *5 (W.D.N.Y. August 11, 2010) (“State agency medical
consultants are qualified experts in the evaluation of disability claims and as such, their
opinions may constitute substantial evidence if they are consistent with the record as a
Dr. S. Shapiro’s opinion was less restrictive than the ALJ’s ultimate RFC determination,
which found that plaintiff was limited to work that involved no contact with the public. (T. 18, 46).
Plaintiff also argues that the state consultant’s January 2, 2014 opinion should
have been discounted because it necessarily omits plaintiff’s psychiatric treatment
record between January 2014 and May 2015.5 (Pl.’s Br. at 15). Plaintiff has not
identified any evidence post-dating the state consultant’s review that would contradict
the ALJ’s finding that Dr. S. Shapiro’s opinion was “generally consistent with the
objective evidence of record.” (T. 20). Instead, plaintiff argues that, although some
medical records were provided to the consultant, it is unclear whether the state
consultant was aware of an October 2013 incident, documented in the treatment notes,
in which plaintiff “tried to fight” a treating physician. (T. 481-82). However, even
though the state consultant does not mention this specific incident, Dr. S. Shapiro
referenced plaintiff’s well-documented difficulties in social functioning, and still
opined that plaintiff was capable of performing simple work that required limited
contact with the general public. (T. 73). Likewise, plaintiff has not identified any
subsequent medical evidence that would suggest that Dr. S. Shapiro’s opinion would
have been more restrictive6 if the information had been available. See Camille v.
The ALJ stated that Dr. S. Shapiro’s opinion was “rendered after a thorough review of the
entirety of the evidence by a physician with extensive program and professional expertise.” (T. 20).
Plaintiff argues that this overstates the record evidence available to the state agency consultant, due to
the timing of his review. Given the remainder of the ALJ’s analysis, this court concludes that her
description of scope of the medical evidence available to Dr. S. Shapiro was merely inartful wording.
However, even if the ALJ had erred in describing the scope of the state agency consultant’s review,
such error would be harmless, given the consistency between Dr. S. Shapiro’s opinion and the record
as a whole.
In fact, the ALJ cited subsequent treatment records that reflected "significant improvement" in
plaintiff's ability to handle his anger, despite inconsistent attendance at counseling sessions and
noncompliance with recommended treatment. (T. 19, 331). Plaintiff's counselors also encouraged him
to pursue potential employment opportunities at local grocery stores or to return to a GED program,
Colvin, 104 F. Supp.3d 329, 343-44 (W.D.N.Y. 2015), aff’d, 652 F. App’x 25, 28-29
(2d Cir. 2016) (ALJ did not err in assigning great weight to state consultant’s opinion
where later treatment notes were not materially different from the medical records
reviewed by the consultant). Therefore, this court cannot conclude that the state
consultant’s opinion was rendered “stale” by subsequent medical records, or that the
ALJ erred in assigning that opinion considerable weight. See Liberatore v. Colvin, No.
5:15-CV-1483 (GTS), 2016 WL 7053443, at *7 (N.D.N.Y. Dec. 5, 2016).
The ALJ also gave “some weight” to the December 23, 2013 opinion of Dr.
Jeanne Shapiro, who performed plaintiff’s consultative psychiatric examination. (T.
20). Plaintiff argues that Dr. Jeanne Shapiro provided the only psychiatric opinion
from an examining source, and therefore the ALJ should have assigned her report
greater weight. (Pl.’s Br. at 13-14). Dr. Jeanne Shapiro opined that plaintiff appeared to
have mild limitations in understanding and following simple instructions and
directions; mild to moderate limitations performing simple tasks; moderate to marked
limitations performing complex tasks; mild limitations maintaining attention and
concentration; moderate limitations regarding his ability to attend to a routine and
maintain a schedule; and mild to moderate limitations regarding his ability to learn new
tasks. (T. 337). Dr. Jeanne Shapiro further opined that plaintiff had moderate to marked
limitations in his ability to make appropriate decisions and to deal with stress, and had
marked limitations in his ability to relate to and interact well with others. (Id.).
which would suggest fewer limitations with regard to social functioning than found by the state agency
consultant in January 2014. (T. 392, 395, 398, 406, 420, 430, 444).
The ALJ provided several reasons for assigning less weight to the consultative
examiner’s opinion. First, she discounted the consultative examiner’s reliance on
plaintiff’s own description of his symptoms, due to questions about plaintiff’s
credibility. (T. 20). For example, the ALJ noted that plaintiff reported that he had been
depressed most of his life, but had only sought mental health treatment after a prior
application for benefits was denied. (T. 19). In addition, plaintiff had been largely
noncompliant with recommended treatment, and had missed numerous counseling
appointments. (Id.). The ALJ also referenced treatment notes that described plaintiff as
questioning whether he had to stay for the entire session to “get credit” under a state
Jobs Plus program, and requesting that a counselor sign a form that overstated
plaintiff’s attendance at weekly counseling sessions. (T. 19, 443, 452).
In addition, the ALJ found that Dr. Jeanne Shapiro’s findings did not reflect the
improvement in plaintiff’s anger management described in treatment notes, and that her
most restrictive findings were not supported by “consistent” treating source evidence.
(T. 20). The ALJ also described Dr. Jeanne Shapiro’s examination notes, which were
inconsistent with her findings of extreme limitations. (T. 19). For example, plaintiff
was cooperative during the consultative examination, and displayed an adequate
manner of relating, social skills, and overall presentation. (T. 336). His attention and
concentration was intact, and he did not demonstrate any recent or remote memory
deficits. (Id.). Because the ALJ provided record support for her determination, this
court concludes that her decision to assign less weight to Dr. Jeanne Shapiro’s opinion
was supported by substantial evidence.
VII. DEVELOPING THE ADMINISTRATIVE RECORD
It is well-settled that, because a hearing on disability benefits is a nonadversarial
proceeding, the ALJ has an affirmative duty to develop the record, whether or not a
plaintiff is represented. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). Prior to
March of 2012, the regulations provided that when the treating physician’s report
contained “a conflict or ambiguity” that must be resolved, the ALJ was required to
“seek additional evidence or clarification” from that source in order to fill in any clear
gaps before rejecting the doctor’s opinion. Rolon v. Commissioner of Soc. Sec., 994 F.
Supp. 2d 496, 504-505 (S.D.N.Y. 2014) (citing, inter alia, Correale Englehart v.
Astrue, 687 F. Supp. 2d 396, 428 (S.D.N.Y. 2010); 20 C.F.R. §§ 404.1512(e)(1),
416.912(e)(1) (2010)). This duty arose if the physician’s report was “insufficiently
explained, lacking in support, or inconsistent with the physician’s other reports.” Id.
Effective March 26, 2012, the Commissioner amended 20 C.F.R. §§ 404.1512
(e)(1) and 416.912(e)(1) to remove former paragraph (e), together with the duty that it
imposed on the ALJ to re-contact the treating physician under certain circumstances.
Lowry v. Astrue, 474 F. App’x 801, 805 n.2 (2d Cir. 2012) (citing How We Collect and
Consider Evidence of Disability, 77 Fed. Reg. 10,651, 10,656 (Feb. 23, 2012) (codified
at 20 C.F.R. § 416.912) (deleting former paragraph (e) and redesignating former
paragraph (f) as paragraph (e)). The court applies the section in effect when the ALJ
adjudicated plaintiff’s claim. Id. The ALJ’s decision in this case is dated November 24,
2015, thus, the new section applies.
The new section allows the ALJ to choose the appropriate method for resolving
insufficiencies or inconsistencies, which is designed to afford adjudicators “more
flexibility.” Perrin v. Astrue, No. 11-CV-5110, 2012 WL 4793543, at *3 n.3 (E.D.N.Y.
Oct. 9, 2012) (citing How We Collect and Consider Evidence of Disability, supra).
The ALJ must attempt to resolve the inconsistency or insufficiency by taking one or
more of the following approaches:
(1) recontacting the treating physician or other medical
source, (2) requesting additional existing records, (3) asking
the claimant to undergo a consultative examination, or (4)
asking the claimant or others for further information.
Id. (citing 20 C.F.R. §§ 404.1520b(c)(1)-(4), 416.920b(c)(1)-(4)). Despite the duty to
develop the record, remand is not required where the record contains sufficient
evidence from which the ALJ can assess the plaintiff’s RFC. Covey v. Colvin, No. 13CV-6602, 2015 WL 1541864, at *13 (W.D.N.Y. Apr. 6, 2015) (quoting Tankisi v.
Comm’r of Soc. Sec., 521 F. App’x 29, 33 (2d Cir. 2013)).
After the consultative examination, Dr. Jeanne Shapiro found that plaintiff’s
intellectual functioning was in the deficient range, possibly indicating a mild
intellectual disability. (T.337). Plaintiff argues that the ALJ should have further
developed the administrative record by ordering a consultative examination to assess
plaintiff’s intellectual functioning, and to rule out an intellectual disability. (Pl.’s Br. at
An ALJ is not required to order a consultative examination if the facts do not
warrant or suggest the need for it. Lefever v. Astrue, No. 5:07–CV–622 (NAM/DEP),
2010 WL 3909487, at *7 (N.D.N.Y. Sept. 30, 2010), aff'd 443 F. App’x 608 (2d Cir.
2011); see also Yancey v. Apfel, 145 F.3d 106, 114 (2d Cir.1998). In this case, plaintiff
attended regular education classes throughout school. (T. 334). Although plaintiff had
poor grades and was held back a year, he reported that he had actually quit school due
to being bullied by classmates and mistreated by staff. (T. 301, 327, 348). Plaintiff had
failed to complete a GED course, but attributed this to financial difficulties rather than
intellectual struggles. (T. 327). Plaintiff’s counselors also regularly encouraged him to
consider returning to a GED program, and did not express any concerns about his
intellectual ability to complete the necessary coursework. (T. 430, 444, 446). While
plaintiff testified that he had difficulty with math and English at school, he has not
identified any work-related functional limitations resulting from these academic
difficulties. Therefore, this court cannot conclude that the ALJ was obligated to send
plaintiff for an additional consultative examination, or to take any other measures to
further assess his intellectual functioning. See Gorman v. Colvin, No. 14-CV-103,
2015 WL 1383823, at *4 (N.D.N.Y. Mar. 25, 2015) (“Plaintiff fails to point to evidence
during the relevant period showing that her intellectual capacity precluded her from
engaging in simple, routine, and repetitive unskilled work activities, and therefore the
ALJ had no duty to order a consultive intellectual evaluation.”).
VIII. VOCATIONAL EXPERT
At step five of the disability analysis, the burden shifts to the ALJ to demonstrate
that there is other work in the national economy that plaintiff can perform. Poupore v.
Astrue, 566 F.3d 303, 306 (2d Cir. 2009). “Work which exists in the national
economy” means work existing in significant numbers “either in the region where the
individuals live or in several regions of the country.” McCusker v. Comm’r of Soc. Sec.,
No. 1:13-CV-1074, 2014 WL 6610025, at *3 (N.D.N.Y. Nov. 20, 2014) (quoting SSR
82-53, 1982 WL 3134, at *3 (1982) (internal quotation marks removed). This
definition emphasizes “that . . . a type of job which exists only in very limited
numbers or in relatively few geographic locations may not be said to ‘exist in the
national economy.’” Id. However, what constitutes a “significant” number is “fairly
minimal.” Id. (quoting Fox v. Comm’r of Soc. Sec., No. 6:02-CV-1160, 2009 WL
367628, at *20 (N.D.N.Y. Feb. 13, 2009)).
In the ordinary case, the ALJ carries out this fifth step of the sequential disability
analysis by applying the applicable Medical-Vocational Guidelines (“the Grids”). Id.
The Grids divide work into sedentary, light, medium, heavy, and very heavy categories,
based on the extent of a claimant’s ability to sit, stand, walk, lift, carry, push, and pull.
20 C.F.R. Pt. 404, Subpt. P, App. 2; Zorilla v. Chater, 915 F. Supp. 662, 667 n.2
(S.D.N.Y. 1996). See also 20 C.F.R. §§ 404.1567 & 416.967. Each exertional category
of work has its own Grid, which then takes into account the plaintiff’s age, education,
and previous work experience. Id. Based on these factors, the Grids help the ALJ
determine whether plaintiff can engage in any other substantial work that exists in the
national economy. Id.
“Although the grids are ‘generally dispositive, exclusive reliance on [them] is
inappropriate’ when they do not fully account for the claimant’s limitations.” Martin v.
Astrue, 337 F. App’x 87, 90 (2d Cir. 2009) (citation omitted). When significant
nonexertional impairments7 are present or when exertional impairments do not fit
squarely within Grid categories, the testimony of a vocational expert is required to
support a finding of residual functional capacity for substantial gainful activity.
McConnell v. Astrue, 6:03-CV-0521 (TJM), 2008 WL 833968, at *21 (N.D.N.Y. Mar.
27, 2008) (citing, inter alia, Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir. 1986).
If the ALJ utilizes a VE at the hearing, the VE is generally asked a hypothetical
question that incorporates plaintiff’s limitations. See Aubeuf v. Schweiker, 649 F.2d
107, 114 (2d Cir. 1981). Although the ALJ is initially responsible for determining the
claimant’s capabilities based on all the evidence, see Dumas v. Schweiker, 712 F.2d
1545, 1554 n.4 (2d Cir. 1983), a hypothetical question that does not present the full
extent of a claimant’s impairments cannot provide a sound basis for vocational expert
testimony. See De Leon v. Sec’y of Health and Human Servs., 734 F.2d 930, 936 (2d
Cir. 1984); Lugo v. Chater, 932 F. Supp. 497, 503-04 (S.D.N.Y. 1996). Conversely, the
ALJ may rely on a VE’s testimony regarding the availability of work as long as the
hypothetical facts the expert is asked to consider are based on substantial evidence and
accurately reflect the plaintiff’s limitations. Calabrese v. Astrue, 358 F. App’x 274, 276
(2d Cir. 2009). Where the hypothetical is based on an ALJ’s RFC analysis, which is
supported by substantial facts, the hypothetical is proper. Id. at 276-277.
A “nonexertional” limitation is a limitation or restriction imposed by impairments and related
symptoms, such as pain, that affect only the claimant's ability to meet the demands of jobs other than
the strength demands. 20 C.F.R. §§ 404.1569a(c), 416.969a(c).
Because the ALJ found that plaintiff’s nonexertional limitations would narrow
the range of work that plaintiff could perform, the ALJ utilized the services of a VE. (T.
46-50). The ALJ asked the VE to assume an individual of plaintiff’s age, education,
and work experience who: could lift and carry twenty pounds occasionally and ten
pounds frequently; retained the ability to understand and follow simple instructions and
directions and to perform simple tasks independently; could maintain attention and
concentration for simple tasks; could regularly attend to a routine and maintain a
schedule; could maintain attention and concentration for simple tasks; could handle
simple, repetitive, work-related stress and could make occasional decisions directly
related to the performance of simple tasks in a position that did not require supervision
or management of others. (T. 46). The individual should avoid work that required more
complex interaction or joint effort to achieve work goals, and could have no contact
with the public. (Id.). The VE testified that there were several representative
occupations in the national economy that such an individual could perform. (T. 47).
Plaintiff argues that because the ALJ erred with respect to her RFC analysis, the
hypothetical question did not take all of plaintiff’s physical and mental limitations into
account. (Pl.’s Br. at 15). However, because this court has found that the ALJ’s
findings regarding plaintiff’s RFC were supported by substantial evidence, her
hypothetical question that mirrored the RFC and the resulting reliance upon the VE
testimony were similarly supported by substantial evidence.
WHEREFORE, based on the findings above, it is
ORDERED, that the Commissioner’s decision is AFFIRMED, and plaintiff’s
complaint is DISMISSED, and it is
ORDERED, that judgment be entered for the DEFENDANT.
January 6, 2017
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