Abbas v. Commissioner of Social Security

Filing 19

DECISION AND ORDER denying Plaintiff's # 15 Motion for judgment on the pleadings; granting # 17 Defendant's motion for judgment on the pleadings. Defendant's decision denying disability benefits is AFFIRMED, and Plaintiff's complaint is dismissed. Signed by Judge Glenn T. Suddaby on 7/6/15. (lmw)(Copy served upon pro se plaintiff via regular mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
SAAD ABBAS,
Plaintiff,
v.

6:14-CV-0959
(GTS)

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

OF COUNSEL:

SAAD ABBAS
Plaintiff, Pro Se
1450 Kemble Street, Apt. A
Utica, NY 13501
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

ANDREA L. LECHLEITNER, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Saad Abbas
(“Plaintiff”) against the Acting Commissioner of Social Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties’ cross-motions
for judgment on the pleadings. (Dkt. Nos. 15, 17.) 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 July 26, 1963. He completed a high school education in Iraq as
well as two years of trade school for air conditioning. Plaintiff received training in the English
language from the fifth grade through high school, and learned the air conditioning trade in
English. However, at this time, Plaintiff understands only a little bit of English and gets
assistance from his four children when necessary. Plaintiff’s employment history consists of
work as a soldier in the Iraqi military and work as a piano player. Generally, Plaintiff’s alleged
disability consists of neck problems, knee problems, numbness in his left arm, allergies, anemia
and vision problems. Plaintiff’s alleged disability onset date is January 1, 2002.
B.

Procedural History

On March 15, 2012, Plaintiff applied for Supplemental Security Income benefits.
Plaintiff’s application was initially denied, after which he timely requested a hearing before an
Administrative Law Judge (“the ALJ”). On July 23, 2013, Plaintiff appeared before the ALJ,
Robert Gale, but the hearing was postponed so that Plaintiff, who was appearing pro se, could
obtain counsel. Plaintiff again appeared pro se before the ALJ on September 17, 2013, at which
time a hearing was held. (Tr. 396-410.) On October 16, 2013, the ALJ issued a written decision
finding Plaintiff not disabled under the Social Security Act. (Tr. 27-38.) On May 5, 2014, the
Appeals Council granted Plaintiff’s request for review and notified Plaintiff of its proposal to
issue an unfavorable decision finding that Plaintiff was not disabled during the relevant period
because Plaintiff was able to perform his past relevant work as he actually performed it. (Tr. 914.) Plaintiff did not submit additional comments or new evidence within the allotted time. On
July 9, 2014, the Appeals Council issued its unfavorable decision, rendering it the final decision
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of the Commissioner. (Id.) Thereafter, Plaintiff, again appearing pro se, timely sought judicial
review in this Court.
C.

The ALJ’s Decision

Generally, in his decision, the ALJ made the following six findings of fact and
conclusions of law. (Tr. 32-37.) First, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since his application date. (Tr. 32.) Second, the ALJ found that
Plaintiff’s degenerative disc disease of the cervical and lumbar spine with sciatica is a severe
impairment but that Plaintiff’s multifactorial anemia, abdominal pain diagnosed as celiac
adenopathy, knee pain, carpal tunnel syndrome and headaches are not severe. (Tr. 33.) Third,
the ALJ found that Plaintiff’s impairments do not meet or medically equal one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (Id.) In so doing, the ALJ
considered Listing 1.04. (Id.) Fourth, the ALJ found that Plaintiff has the residual functional
capacity (“RFC”) to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand
and/or walk four hours total in an eight-hour workday, and sit four hours total in an eight-hour
workday, consistent with a full range of light work as defined in 20 C.F.R. § 416.967(b).1 (Tr.
34-36.) Fifth, the ALJ found that Plaintiff has no past relevant work. (Tr. 37.) Sixth, and

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According to the regulations,
[l]ight 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.

20 C.F.R. §§ 404.1567(b) and 416.967(b).
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finally, the ALJ determined that there are jobs that exist in significant numbers in the national
economy that Plaintiff can perform. (Id.)
D.

The Appeals Council’s Decision

In its decision, the Appeals Council adopted the ALJ’s statement of the law, facts and
relevant issues. (Tr. 11.) Next, the Appeals Council generally accepted the ALJ’s RFC but
modified it to reflect that Plaintiff is able to sit for up to approximately six hours in an eight-hour
workday. (Id. ) In addition, the Appeals Council did not accept the ALJ’s finding that Plaintiff
has no past relevant work. (Tr. 11-12.) Rather, the Appeals Council found that Plaintiff has past
relevant work as a keyboard player. (Id.) Finally, the Appeals Council concluded that, based on
Plaintiff’s ability to perform a wide range of light work, he is capable of performing his past
relevant work as a keyboard player, and thus, is not disabled. (Tr. 12.)
II.

THE PARTIES’ BRIEFINGS ON PLAINTIFF’S MOTION
A.

Plaintiff’s Arguments

Construing Plaintiff’s motion papers with the utmost of liberality,2 the Court interprets
Plaintiff’s brief to state the following two arguments. First, Plaintiff argues that his impairments
limit him to “a [fifteen] minute stand” and prevent him from lifting more than ten pounds or

2

When, as here, a party seeks judgment against a pro se litigant, a court must
afford the pro se litigant special solicitude. See Triestman v. Fed. Bureau of Prisons, 470 F.3d
471, 477 (2d Cir. 2006). As the Second Circuit has stated, “[t]here are many cases in which we
have said that a pro se litigant is entitled to special solicitude, that a pro se litigant’s submissions
must be construed liberally, and that such submissions must be read to raise the strongest
arguments that they suggest.” Id. (citations omitted). At the same time, courts should not “read
into pro se submissions [arguments] that are not consistent with the pro se litigant’s allegations
or arguments that the submissions themselves do not suggest.” Id. (citations omitted). Finally,
pro se status “does not exempt a party from compliance with relevant rules of procedural and
substantive law.” Id. (citations omitted).
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walking for more than ten to fifteen minutes. (Dkt. No. 15 [Pl.’s Br.].) Second, Plaintiff argues
that his treating physicians have all opined that he has neck pain. (Id.) Accordingly, Plaintiff
requests that the Commissioner be required to reevaluate his decision that Plaintiff is not
disabled. (Id.)
B.

Defendant’s Arguments

In response, Defendant makes two arguments. First, Defendant argues that the
Commissioner reasonably concluded that Plaintiff can do a range of light work. (Dkt. No. 17 at
5-14 [Def.’s Mem. of Law].) Second, Defendant argues that the Commissioner reasonably found
that Plaintiff is capable of performing his past relevant work. (Id. at 14-15.)
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), 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
be reversed only if the correct legal standards were not applied, or if the determination 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
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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).
“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). “[I]n a case in which
the claimant is handicapped by lack of counsel, ill health, and inability to speak English well, the
courts have a duty to make a ‘searching investigation’ of the record.” Gold v. Sec’y of Health,
Educ. & Welfare, 463 F.2d 38, 43 (2d Cir. 1972).
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. 20 C.F.R. §§ 404.1520, 416.920.
The Supreme Court has recognized the validity of this sequential evaluation process. See Bowen
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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 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 Commissioner Erred in Determining Plaintiff’s RFC

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17 at 5-13 [Def.’s Mem. of
Law].) To those reasons, the Court would add only the following analysis.
RFC is defined as
what an 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, 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.

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Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.1999) (quoting SSR 96-8p, 1996 WL 374184, at *2).
“In assessing a claimant’s RFC, the ALJ must consider all of the relevant medical and other
evidence in the case record to assess the claimant’s ability to meet the physical, mental, sensory
and other requirements of work.” Domm v. Colvin, 12-CV-6640, 2013 WL 4647643, at *8
(W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. § 404.1545[a][3]-[4]). The ALJ must consider all
of the relevant evidence, including medical opinions and facts, physical and mental abilities,
non-severe impairments, and the plaintiff’s subjective evidence of symptoms. See 20 C.F.R. §
404.1545(b)-(e). The ALJ must consider RFC assessments made by acceptable medical sources
and may consider opinions from other non-medical sources to show how a claimant’s
impairments may affect his ability to work. See 20 C.F.R. § 404.1513(c)(d). Finally, an ALJ’s
RFC determination “must be set forth with sufficient specificity to enable [the Court] to decide
whether the determination is supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d
582, 587 (2d Cir.1984).
Here, the ALJ and Appeals Council properly considered all of the record evidence when
making the RFC determination. With respect to the objective medical evidence, both the ALJ
and Appeals Council acknowledged that Plaintiff had cervical disc herniations and lumbar disc
space narrowing. (Tr. 12, 36, 152, 154.) Moreover, the ALJ noted that Plaintiff complained of
pain during physical examinations and claimed that “the only relief he gets from pain is from
lying down, massage, and heat.” (Tr. 36.) However, the ALJ also noted that Plaintiff walked
with a normal gait, was not in apparent distress, and was independent in his activities of daily
living. (Tr. 36, 227, 243.)
Regarding the opinion evidence, the ALJ considered the report of Dr. Ivan Antonevich,
which was accorded the greatest evidentiary weight. (Tr. 36.) Dr. Antonevich is Plaintiff’s pain
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management specialist and has treated Plaintiff for a continuous period. (Id.) Dr. Antonevich
opined that Plaintiff could lift up to 20 pounds occasionally and 10 pounds continuously,
indicating that Plaintiff is capable of performing the lifting requirements of light work. (Tr. 36,
220.) Furthermore, Dr. Antonevich opined that Plaintiff could sit for up to four hours in an
eight-hour workday as well as stand and walk for up to two hours. (Tr. 221.) While the ALJ
incorporated Dr. Antonevich’s opinion that Plaintiff can sit for up to four hours in his RFC, the
Appeals Council found it to be less persuasive, revising the RFC to reflect that Plaintiff can sit
for up to six hours in an eight-hour workday. (Tr. 12.) The Court of Appeals for the Second
Circuit has held that, “[w]hile the opinions of a treating physician deserve special respect, . . .
they need not be given controlling weight where they are contradicted by other substantial
evidence in the record . . . .Genuine conflicts in the medical evidence are for the Commissioner
to resolve.” Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002).
Here, the Appeals Council revised the RFC based upon the report of consultative
examiner, Dr. Pamela Tabb, M.D., who indicated that Plaintiff had no restrictions for physical
activity. (Tr. 12, 33, 151-52.) The Appeals Council further noted that, while Plaintiff had
cervical disc herniations, as indicated by an MRI, the MRI also revealed “normal limits and
alignment with no fractures and normal signal of the cervical cord.” (Tr. 12.) The Appeals
Council also considered a nerve conduction study that was completed during a consultation
examination. (Id.) This examination determined that, while Plaintiff’s upper extremities showed
right carpal tunnel syndrome, it is “asymptomatic at this point” and the Plaintiff’s “left hand
numbness did not warrant any further treatment for carpal tunnel syndrome.” (Id.) Similarly, as
noted by the ALJ, Dr. Tabb found Plaintiff’s sensation was unimpaired and had full grip strength
during her examination. (Tr. 33, 152.) Plaintiff also testified that he can zip zippers, button
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buttons, and use a pen to write on paper. (Tr. 408.) Although the Appeals Council
acknowledged that Plaintiff has impairments which may cause pain, the Council concluded that
these impairments were accommodated in the ALJ’s RFC. (Tr. 12.) Accordingly, this Court
finds that there is substantial evidence to support the determination that Plaintiff can sit for up to
six hours and stand and/or walk for up to four hours in an eight-hour workday.
Finally, in evaluating Plaintiff’s RFC, the ALJ also considered Plaintiff’s subjective
complaints of pain. (Tr. 33-36.) These complaints included, among other things, neck pain,
back pain, pain in both knees, and needing to lie down “all the time” because of pain. (Tr. 33-35,
150-51, 243, 404-05.) Plaintiff also claims he can sit for only 15 minutes and is limited to
walking and standing for up to 10 minutes. (Tr. 35.) After considering the evidence, the ALJ
made the following conclusion:
The undersigned finds that although he has medically determinable
severe impairments, these impairments do not cause the degree of
limitations alleged by the claimant. When evaluated, the
claimant’s subjective complaints are found to be somewhat
exaggerated and to be inconsistent with the other evidence,
including the clinical and objective findings of record and would
not be a sound basis for a finding of disability.
(Tr. 35.) The ALJ further stated that, having considered “the extent of his overall daily
activities, and the essentially positive effects of medication considering the waxing and waning
of his symptoms, it is not credible that his symptoms were of such intensity, frequency or
duration as to preclude all work activity.” (Id.)
It is well established that “‘[i]t is the function of the [Commissioner], not [the Court], to
resolve evidentiary conflicts and to appraise the credibility of the witnesses, including the
claimant.’” Aponte v. Sec’y, Dep’t Health & Human Servs., 728 F.2d 588, 591 (2d Cir.1984)
(quoting Carroll v. Sec’y of Health & Human Servs., 705 F.2d 638, 642 [2d Cir.1983]). “The
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ALJ ‘has discretion to evaluate the credibility of a claimant and to arrive at an independent
judgment . . . [which he must do] in light of medical findings and other evidence regarding the
true extent of the pain alleged by the claimant.’” King v. Astrue, 12-CV-6186T, 2013 WL
3154129, at *8 (W.D.N.Y. June 21, 2013) (quoting Mimms v. Heckler, 750 F.2d 180, 186 [2d
Cir.1984]). “If ‘after weighing the objective medical evidence in the record, the claimant's
demeanor, and other indicia of credibility, the ALJ decides to discredit plaintiff’s claim of severe
and disabling pain, that decision is supported by substantial evidence.’” Drennen v. Astrue, 10CV-6007MAT, 2012 WL 42496, at *6 (W.D.N.Y. Jan. 9, 2012) (quoting Pascariello v. Heckler,
621 F. Supp. 1032, 1036 [S.D.N.Y.1985]); see also Mimms, 750 F.2d at 186 (holding that,
“while an ALJ ‘has the discretion to evaluate the credibility of a claimant and to arrive at an
independent judgment [regarding that pain, he must do so] in light of medical findings and other
evidence, regarding the true extent of the pain alleged by the claimant’”) (quoting McLaughlin v.
Sec’y of Health, Educ. & Welfare, 612 F.2d 701, 705 [2d Cir. 1980]).
Here, in addition to the medical and opinion evidence discussed above, the ALJ
considered additional record evidence that contradicted some of Plaintiff’s claims. (Tr. 33-36.)
For example, the ALJ noted that, while Plaintiff claims he has to lie down “all the time” because
of pain, cannot sit for more than 15 minutes or stand and/or walk for more than 10 minutes,
Plaintiff was still able to bathe, watch television, play music, take care of family finances, and go
shopping with his son. (Tr. 35.) The finding that Plaintiff’s pain is not as severe as he alleges is
also supported by medical evidence. As discussed above, Dr. Tabb noted that, during her
examination, Plaintiff did not have any limitations in performing physical activity and Plaintiff
did not mention he had any problems with sitting. (Tr. 35-36, 150.) Dr. Antonevich noted that
Plaintiff does not have difficulty taking care of himself, is able to pick up objects from the floor
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comfortably, and reported being independent with activities of daily living. (Tr. 243.) Similarly,
Dr. Leroy Cooley, M.D., examined Plaintiff’s knees, which did not “reveal any definite
abnormalities . . . [Plaintiff] has a full range of motion and there is no ligamentous instability
bilaterally.” (Tr. 227.) Granted, Dr. Cooley did note that Plaintiff “has pain in his back with
motion of his hips, but no hip pain.” (Id.) However, the ALJ made the following observation
during the hearing:
The claimant displayed no evidence of pain or discomfort while
testifying at the hearing. While the hearing was short-lived and
cannot be considered a conclusive indicator of the claimant’s
overall level of pain on a day-to-day basis, the apparent lack of
discomfort during the hearing is given some slight weight in
reaching the conclusion regarding the credibility of the claimant’s
allegations and the claimant’s residual functional capacity.
(Tr. 35.) An ALJ is permitted to consider physical demeanor during an administrative
proceeding as one of several factors in evaluating credibility. Schaal v. Apfel, 134 F.3d 496, 502
(2d Cir. 1998); see also 20 C.F.R. § 416.929(c)(3); SSR 96-7p. Based upon the foregoing, there
is substantial evidence in the record to support the ALJ’s findings regarding Plaintiff’s alleged
pain.
It bears noting that, while the ALJ did give some weight to Plaintiff’s subjective
complaints, he concluded that Plaintiff’s symptoms were not as intense as alleged. (Tr. 34-35.)
As Defendant correctly notes, it is not necessarily inconsistent to find that a claimant experiences
pain yet is not so impaired as to meet the test for disability imposed by the Social Security Act.
(Dkt. No. 17 at 13 [Def.’s Mem. of Law].); Hames v. Heckler, 707 F.2d 162, 166 (5th Cir. 1983)
(stating that “[i]t is important to note that the test for disability under the Social Security Act is
not satisfied merely because Plaintiff cannot work without some pain or discomfort.”); TorresRosas v. Bowen, 678 F. Supp. 420, 424 (S.D.N.Y. 1987). Finally, although the opinion of nurse
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practitioner, Deanna Brady, MSFNP-C, was submitted and substantially supports Plaintiff’s
claims, the Court does not find error in the ALJ’s decision to accord Ms. Brady’s opinion less
weight on the ground that it was inconsistent with the medical record evidence. (Tr. 36.); see
also (Dkt. No. 17 at 10-12 [Def.’s Mem. of Law].)
Accordingly, the Court finds that the Commissioner’s RFC determination is supported by
substantial evidence.
B.

Whether the Commissioner Erred in Determining that Plaintiff Can Perform
His Past Relevant Work

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendant’s memorandum of law. (Dkt. No. 17 at 14-15 [Def.’s Mem. of
Law].) To those reasons, the Court would add only the following analysis.
“[I]n the fourth stage of the [disability] inquiry, the claimant has the burden to show an
inability to return to her previous specific job and an inability to perform her past relevant work
generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003). In other words, a claimant is
not disabled if he can perform his past relevant work, either as she actually performed it, or as it
is generally performed in the national economy. See SSR 82-61, 1982 WL 31387, at *2 (1982);
Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981). “‘[I]n order to determine at step four whether
a claimant is able to perform her past work, the ALJ must make a specific and substantial inquiry
into the relevant physical and mental demands associated with the claimant’s past work, and
compare these demands to the claimant’s residual capabilities.’” Kochanek v. Astrue, 08-CV310, 2010 WL 1705290, at *11 (N.D.N.Y. Apr. 13, 2010) (quoting Kerulo v. Apfel, 98-CV-7315,
1999 WL 813350, at *8 [S.D.N.Y. Oct. 7, 1999]).

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Here, Plaintiff reported that he worked as a keyboard player in Iraq from the 1980s until
2001. (Tr. 121.) He indicated that this occupation required him to sit but he did not have to
stand or walk. (Tr. 121-122.) Moreover, Plaintiff claimed that this job required frequent lifting
of 10 pounds or less, the heaviest weight being 100 pounds or more, which appears to be
associated with carrying speakers and similar equipment. (Tr. 12, 122.) Although the ALJ found
that Plaintiff did not have any past relevant work, the Appeals Council found that Plaintiff had a
past occupation as a keyboard player, which he could still perform. (Tr. 12.) In so doing, the
Appeals Council acknowledged Plaintiff’s claim that he may have to lift up to 100 pounds. (Tr.
11.) However, relying on the U.S. Department of Labor’s Dictionary of Occupational Titles
(“DOT”), the Appeals Council concluded that lifting and carrying speakers and keyboard
equipment is not an integral part of working as a keyboard player. (Tr. 12); see DOT 152.041010.
In Johnson v. Barnhart, 329 F. Supp. 2d 751 (W.D. Va. 2004), the U.S. District Court for
the Western District of Virginia faced a similar situation. There, the claimant had been
employed as a security guard, claiming that, in addition to his duties monitoring the premises of
a Wal-Mart, he was required to occasionally help customers load heavy items into their vehicles.
Johnson, 329 F. Supp. 2d at 753. Due to a back injury, the claimant argued that he could no
longer perform the lifting required by his past position. Id. Although the ALJ agreed that the
claimant could no longer lift heavy items, the ALJ determined that he could perform the light
level of exertion demanded of security guards generally in the national economy, as classified by
the DOT. Id. The district court agreed, holding that “the past relevant work inquiry includes
how a job is generally performed in the national economy.” Id. Therefore, the court held that
there was substantial evidence that the claimant could perform the duties of a security guard,
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according to the DOT, and was not disabled. Id. at 755; see also Pass v. Chater, 65 F.3d 1200,
1204 n. 3 (4th Cir. 1995) (holding that “a claimant will be found ‘not disabled’ if he is capable of
performing his past relevant work either as he performed it in the past or as it is generally
required to by employers in the national economy”).
Similarly, in the present matter, although Plaintiff was allegedly required to carry heavy
items (such as speakers and keyboard equipment) during his previous employment, these duties
are not found to be an integral part of employment as a keyboard player per the DOT. DOT
152.041-010. Accordingly, because there is substantial evidence supporting the Commissioner’s
determination that Plaintiff can perform light work, there is substantial evidence in the record to
find that Plaintiff can perform the light level of exertion generally required of keyboard players.
ACCORDINGLY, it is
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 15) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: July 6, 2015
Syracuse, New York

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