Gulic v. Colvin

Filing 26

DECISION AND ORDER denying 19 Plaintiff's Motion for Judgment on the Pleadings; granting 22 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 1/30/17. (JMC)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK

SUZANA GULIC,
Plaintiff,
-vs-

No. 1:16-CV-00156 (MAT)
DECISION AND ORDER

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

I.

Introduction
Represented by counsel, Suzana Gulic (“plaintiff”) brings this

action pursuant to Title XVI of the Social Security Act (“the
Act”), seeking review of the final decision of the Commissioner of
Social Security (“the Commissioner”) denying her application for
supplemental security income (“SSI”). 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 February 2012, plaintiff (d/o/b

January 2, 1987) applied for SSI, alleging disability as of June 1,
2009. After her application was denied, plaintiff requested a
hearing, which was held before administrative law judge William
Weir (“the ALJ”) on August 2, 2013. The ALJ issued an unfavorable
decision on October 30, 2014. The Appeals Council denied review of
the ALJ’s decision and this timely action followed.

III. The ALJ’s Decision
At step one of the five-step sequential evaluation process,
see 20 C.F.R. § 416.920, the ALJ determined that plaintiff had not
engaged in substantial gainful activity since February 2, 2012, the
application

date.

At

step

two,

the

ALJ

found

that

plaintiff

suffered from the severe impairments of anxiety disorder and
depressive disorder. 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
RFC to perform a full range of work at all exertional levels but
with

the

following

nonexertional

limitations:

she

could

continuously understand and remember simple instructions, carry out
simple instructions, and make judgments on simple work-related
decisions; she could occasionally understand and remember complex
instructions, carry out complex instructions, and make judgments on
complex work-related decisions; and she should have no contact with
the public, but could have up to occasional contact with coworkers
and supervisors.
At step four, the ALJ found that plaintiff was capable of
performing

past

relevant

work

as

a

cleaner-housekeeper.

Accordingly, the ALJ found that plaintiff was not disabled and did
not proceed to step five.

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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’s sole contention is that the ALJ erred in failing
to allow plaintiff’s counsel to submit an alternate hypothetical to
the vocational expert (“VE”), who testified not in person but via
written interrogatories posed by the ALJ. After the VE answered the
ALJ’s interrogatories, which included a hypothetical based on the
RFC found by the ALJ, the ALJ wrote plaintiff’s counsel and
informed him that he would grant a request to question the VE “if
[the ALJ] determine[d] that questioning the [VE was] needed to
inquire

fully

into

the

issues.”

T.

221.

Plaintiff’s

counsel

responded that he “wish[ed] [the VE] to be asked to expand the
hypothetical . . . [to include limitations opined by plaintiff’s
treating physician that plaintiff was] very limited in her ability
to work at a consistent pace and [had] moderate limitations in
maintaining attention and concentration.” T. 224. The ALJ refused
to allow this further questioning of the VE. Notably, plaintiff

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does not contend that the ALJ’s RFC determination was unsupported
by substantial evidence.
After

a

careful

review

of

the

ALJ’s

decision

and

the

administrative transcript, the Court concludes that the ALJ’s RFC
assessment

was

supported

by

substantial

evidence,

and

that

therefore, his refusal to allow further questioning of the VE did
not constitute reversible error. See Priel v. Astrue, 453 F. App’x
84, 87–88 (2d Cir. 2011) (“[T]he ALJ properly declined to

include

in his hypothetical question symptoms and limitations that he had
reasonably rejected.”) (citing Dumas v. Schweiker, 712 F.2d 1545,
1554 (2d Cir. 1983)); Mancuso v. Astrue, 361 F. App’x 176, 179
(2d

Cir.

2010)

(rejecting

plaintiff’s

argument

that

the

hypothetical posed to the VE failed to accurately reflect her
impairments,

holding

that

“[t]he

Commissioner

may

rely

on

a

vocational expert’s testimony concerning the availability of jobs
suited to a hypothetical person’s capabilities so long as the
hypothetical is based on substantial evidence”).
Although plaintiff argues that her further hypothetical should
have been posed “[a]s there was substantial evidence to support
[it],” the question is not whether substantial evidence supports
plaintiff’s position, but whether it supported the ALJ’s decision.
See

Bonet ex rel. T.B. v. Colvin, 523 F. App’x 58, 59 (2d Cir.

2013) (citing Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)).
Here, the hypothetical posed to the VE accurately reflected the RFC
in the ALJ’s decision. That RFC was supported by substantial

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evidence including the consulting examiner’s opinion, the reviewing
state agency psychologist opinion, and portions of the opinions of
plaintiff’s own treating psychiatrist. See T. 20-28. Additionally,
the RFC was supported by the treatment notes contained throughout
the record, which indicated relatively unremarkable mental status
examinations as performed by multiple medical sources, including
plaintiff’s treating psychiatrist. Accordingly, the ALJ was not
required to submit to the VE a further hypothetical including the
limitations

provided

by

plaintiff’s

counsel.

See

Gucinski

v.

Colvin, 2014 WL 4659298, *10 (W.D.N.Y. Sept. 17, 2014) (“Contrary
to Plaintiff’s assertion, ‘[t]he ALJ is not required to submit to
the vocational expert every limitation alleged by the claimant, but
must

only

convey

all

of

a

claimant’s

credibly

established

limitations.’”) (quoting Collins v. Comm’r, 2014 WL 4167012,*14
(N.D.N.Y. Aug.20, 2014)).
V.

Conclusion
For the foregoing reasons, plaintiff’s motion for judgment on

the pleadings (Doc. 10) is denied and the Commissioner’s motion
(Doc. 14) is 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:

January 30, 2017
Rochester, New York
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