Laubacker v. Colvin

Filing 16

DECISION AND ORDER denying 10 Plaintiff's Motion for Judgment on the Pleadings; granting 12 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 4/12/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

ROBERT E. LAUBACKER,
Plaintiff,
-vs-

No. 1:15-CV-01055 (MAT)
DECISION AND ORDER

CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Defendant.

I.

Introduction
Represented by counsel, Robert E. Laubacker (“plaintiff”)

brings this action pursuant to Title II of the Social Security Act
(“the

Act”),

seeking

review

of

the

final

decision

of

the

Commissioner of Social Security (“the Commissioner”) denying his
application for disability insurance benfits (“DIB”). The Court has
jurisdiction over this matter pursuant to 42 U.S.C. § 405(g).
Presently before the Court are the parties’ cross-motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. For the reasons discussed below, the
Commissioner’s motion is granted.
II.

Procedural History
The record reveals that in November 2014, plaintiff (d/o/b

January 6, 1981) applied for DIB, alleging disability as of October
13, 2013. After his application was denied, plaintiff requested a
hearing, which was held before administrative law judge William
Weir (“the ALJ”) on August 14, 2015. The ALJ issued an unfavorable
decision on October 6, 2015. The Appeals Council denied review of
the ALJ’s decision and this timely action followed.

III. The ALJ’s Decision
Initially, the ALJ found that plaintiff met the insured status
requirements of the Act through December 31, 2018. At step one of
the five-step sequential evaluation process, see 20 C.F.R. §§
404.1520, the ALJ determined that plaintiff had not engaged in
substantial gainful activity since October 13, 2013, the alleged
onset date. At step two, the ALJ found that plaintiff suffered from
the

following

severe

impairments:

degenerative

disc

disease,

obesity, and post-traumatic stress disorder (“PTSD”). At step
three, the ALJ found that plaintiff did not have an impairment or
combination of impairments that met or medically equaled a listed
impairment.
Before proceeding to step four, the ALJ determined that,
considering all of plaintiff’s impairments, plaintiff retained the
residual functional capacity (“RFC”) to perform sedentary work as
defined in 20 C.F.R. § 404.1567(b) except that he could not perform
work

above

specific

vocational

preparation

(“SVP”)

level

2

(unskilled). At step four, the ALJ found that plaintiff was unable
to perform any past relevant work. At step five, the ALJ determined
that considering plaintiff’s age, education, work experience, and
RFC, jobs existed in significant numbers in the national economy
which plaintiff could perform. Accordingly, the ALJ found that
plaintiff was not disabled.

2

IV.

Discussion
A

district

court

may

set

aside

the

Commissioner’s

determination that a claimant is not disabled only if the factual
findings are not supported by “substantial evidence” or if the
decision is based on legal error. 42 U.S.C. § 405(g); see also
Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003).
“Substantial evidence means ‘such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Shaw v.
Chater, 221 F.3d 126, 131 (2d Cir. 2000).
Plaintiff contends that the ALJ’s decision is unsupported by
substantial evidence. Specifically, plaintiff argues that the ALJ
failed to properly weigh the opinion of his treating social worker,
Lauren

Conley.

Ms.

Conley

completed

a

psychiatric

disorder

assessment on March 6, 2015, at which point she had been treating
plaintiff for approximately one year. Ms. Conley opined that
plaintiff had moderate restrictions in activities of daily living
(“ADLs”) and in concentration, persistence, or pace; and marked
difficulties in maintaining social functioning. Ms. Conley also
opined

that

plaintiff

“continually”

experienced

episodes

of

deterioration or decompensation which caused him to withdraw from
social situations or exacerbated his psychological symptoms. Ms.
Conley further opined that plaintiff had various marked limitations
social functioning, including communicating clearly and effectively
and getting along with others.

3

The ALJ gave little weight to Ms. Conley’s opinion, finding
that plaintiff’s record of school accommodations was inconsistent
with global marked dysfunction; plaintiff’s ADLs, which included
ballroom dancing classes, having coffee with a neighbor, and a
significant

course

inconsistent

with

load
marked

at

a

local

difficulty

community
in

college,

social

were

functioning;

plaintiff’s presentations at office visits were “not perfect” but
were inconsistent with marked limitations; Ms. Conley was not an
acceptable medical source under the regulations, but the ALJ
considered her opinion as evidence of severity and effect on
function in accordance with SSR 06-3p; plaintiff drew unemployment
benefits for a time, which the ALJ did not consider dispositive but
as evidence that plaintiff was ready and able to work .
The ALJ also gave great weight to the consulting psychiatric
examination of Dr. Gregory Fabiano, who opined that plaintiff could
follow and understand simple instructions, perform simple tasks
independently, maintain attention and concentration, maintain a
regular

schedule,

learn

new

tasks,

perform

complex

tasks

independently, and make appropriate decisions. Dr. Fabiano opined
that plaintiff had only mild limitations in his ability to relate
adequately with others and appropriately deal with stress, and
stated that plaintiff’s psychiatric problems alone did not appear
significant enough to interfere with plaintiff’s daily functioning.
The
opinion.

ALJ

gave

proper

reasons

for

rejecting

Ms.

Conley’s

Ms. Conley’s summary notes of mental status examinations

4

(“MSEs”) were largely unremarkable, although she did in earlier
notes record that plaintiff presented with tangential thought
processes, labile mood, and rapid and pressured speech. Overall,
however, and as plaintiff’s treatment proceeded, plaintiff appeared
oriented to person, place, and time; his moods were stable; speech
was of normal rate and volume; thought processes were logical and
goal-directed; and his insight and judgment continued to develop.
Plaintiff’s

psychological

symptoms

never

led

to

inpatient

treatment; in April 2014 plaintiff was seen at the VAMC emergency
department with complaints of psychological symptoms including
stress and insomnia, but over the course of his interview he became
less anxious, thought processes were goal-directed, no perceptual
disturbances were reported or observed, insight and judgment was
fair,

and

plaintiff

was

eventually

assessed

as

having

no

psychiatric issue warranting admission. Thus, the ALJ’s conclusion
that plaintiff’s “presentation at office visits” failed to indicate
the restrictive limitations found by Ms. Conley is consistent with
the record.
Additionally, the ALJ properly found that Ms. Conley’s opinion
did not come from a medical source, but still considered her
opinion as to evidence of severity and effect on function. See 20
C.F.R. § 404.1513. The ALJ also properly considered evidence of
plaintiff’s ADLs and his conclusion that they were inconsistent
with marked limitations is supported by the record. Finally, the
ALJ was within his discretion to consider plaintiff’s collection of

5

unemployment benefits and the ALJ was not obligated to accept the
VA’s assessment of plaintiff’s level of disability. See, e.g.,
Riley-Tull v. Colvin, 2014 WL 2117480, *7 (W.D.N.Y. May 21, 2014)
(“[A]n

ALJ

may

consider

evidence

that

a

claimant

received

unemployment benefits and/or certified that he or she was ready,
willing, and able to work during the time period for which he
claims disability benefits as one factor relevant to assessing
credibility.”); Claymore v. Astrue, 519 F. App’x 36, 38 (2d Cir.
2013)

(“A

claimant’s

determination
disability

is

made
not

by

another

binding

on

agency
the

regarding

Social

a

Security

Administration, 20 C.F.R. § 404.1504, however, ‘it is entitled to
some weight and should be considered.’”).
V.

Conclusion
For

the

foregoing

reasons,

the

Court

finds

that

the

Commissioner’s determination that plaintiff was not disabled under
the SSA was supported by substantial evidence in the record.
Plaintiff’s motion for judgment on the pleadings (Doc. 10) is
therefore

denied

and

the

Commissioner’s

motion

(Doc.

12)

granted. The Clerk of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.

S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
Dated:

April 12, 2017
Rochester, New York

6

is