Johnson v. Astrue
Filing
9
-CLERK TO FOLLOW UP- DECISION AND ORDER granting 6 Motion for Judgment on the Pleadings; denying 7 Motion for Judgment on the Pleadings; and dismissing the complaint. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 3/19/13. (JMC)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
MARK JOHNSON,
Plaintiff,
DECISION and ORDER
No. 6:12-CV-6059(MAT)
-vsMICHAEL J. ASTRUE, Commissioner of
Social Security,
Defendant.
I.
Introduction
Represented by counsel, plaintiff Mark Johnson (“Johnson” or
“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
his application for Supplemental Security Income (“SSI”) benefits.
The Court has jurisdiction over this matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c). Presently before the Court are the parties’
competing motions for judgment on the pleadings pursuant to Fed. R.
Civ. P. 12(c). For the reasons that follow, Defendant’s motion is
granted, and the Commissioner’s decision is affirmed.
II.
Background
A.
Facts
The basis for Johnson’s disability is a closed cervical spine
fracture he sustained while in a car accident on February 17, 2008.
(T.10).1 The Court adopts and incorporates by reference herein the
summary of the medical evidence set forth in Johnson’s Brief
(Dkt #7-1 at pp. 3-10) under the heading “Statement of Facts” and
the summary set forth in the Commissioner’s Brief (Dkt #6-1 at pp.
2-10) under the heading “The Administrative Record”.
Johnson was forty-two years-old when he filed for SSI in 2008.
He had completed tenth grade but did not have a General Equivalency
Diploma. He testified that he had worked in construction from the
time he was seventeen years-old until the date of his car accident
on February 17, 2008. (T.21-22). According to Johnson, he broke his
neck in two places, and had “basically . . . been decapitated,”
with only his skin holding his head on to his neck and spine.
(T.22). Johnson refused a “halo” to immobilize his head and neck
because he did not want screws in his head. (T.22).
Johnson testified that since the accident, he has had pain
starting on the back of his neck, which requires him to stand up
and walk around. However, he can only walk around briefly because
his back will start hurting, requiring him to sit down. (T.26).
Bending over and looking all the way upwards causes pain. (T.27).
Walking, sitting for too long, and standing for too long make the
pain worse. (T.28). Johnson stated that the pain makes it difficult
1
Numbers in parentheses preceded by “T.” refer to pages from
the administrative record, submitted as a separately bound exhibit
in this proceeding.
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to concentrate and to sleep. (T.28-29). He could get comfortable if
he sits in a reclining position with his feet elevated. (T.29).
Johnson testified that he was depressed because he used to be
strong and could work as a roofer to earn money. (T.30). He
testifies that he spends his days helping to take care of his three
small children (he lives with his sister), reading, watching TV,
going to the park, and occasionally attending church. (T.30-31).
Johnson is able to bathe and dress himself. (T.32-33). He goes
shopping but has difficulty carrying anything that weighs more than
10 pounds.
B.
Procedural History
On March 17, 2008, Plaintiff filed an application for SSI,
alleging disability since February 17, 2008, due to back and head
injuries, back pain, numbness in his legs, and impaired mobility,
all stemming from a motor vehicle accident on the onset date. The
claim was denied, and he then filed a request for an administrative
hearing. On April 12, 2010, Plaintiff appeared with his attorney
and testified at a hearing, with Administrative Law Judge Cameron
Elliott (“the ALJ”) presiding via videoconference. (T.17-37). On
May
4,
2010,
the
ALJ
issued
an
unfavorable
decision,
which
Plaintiff’s attorney appealed to the Appeals Counsel. (T.95-98). On
December 16, 2011, the Appeals Council denied Plaintiff’s request
for review, making the ALJ’s decision the final decision of the
Commissioner. (T.1-4). This timely action followed.
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III. Legal Principles
A.
Standard of Review
The Commissioner’s decision that a claimant is not disabled
must be affirmed if it is supported by substantial evidence, and if
the ALJ applied the correct legal standards. 42 U.S.C. § 405(g);
see also, e.g., Machadio v. Apfel, 276 F.3d 103, 108 (2d Cir.
2002). “Substantial evidence” has been defined as “‘more than a
mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.’” Richardson
v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison
Co. v. N.L.R.B., 305 U.S. 197, 229 (1938)).
“[I]t is not the function of a reviewing court to decide
de novo whether a claimant was disabled.” Melville v. Apfel, 198
F.3d 45, 52 (2d Cir. 1999). “Where the Commissioner’s decision
rests on adequate findings supported by evidence having rational
probative force, [the district court] will not substitute [its]
judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d
578, 586 (2d Cir. 2002).
This deferential standard is not applied to the Commissioner’s
conclusions of law, however. Townley v. Heckler, 748 F.2d 109, 112
(2d Cir. 1984); see also, e.g., Tejada, 167 F.3d at 773. This Court
must independently determine whether the Commissioner’s decision
applied
the
correct
legal
standards
in
determining
that
the
claimant was not disabled. “Failure to apply the correct legal
standards is grounds for reversal.” Townley, 748 F.2d at 112.
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Therefore, this Court firsts reviews whether the applicable legal
standards were correctly applied, and, if so, then considers the
substantiality of the evidence. Johnson v. Bowen, 817 F.2d 983, 985
(2d Cir. 1987); see also Schaal v. Apfel, 134 F.3d 496, 504
(2d Cir. 1998) (“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.”) (quoting Johnson, 817
F.2d at 986).
B.
Five-Step Sequential Evaluation
To be considered disabled within the meaning of the Act, a
claimant 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 plaintiff’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.,
§ 423(d)(2)(A).
In
determining
whether
a
claimant
is
disabled,
the
Commissioner follows a five-step analysis set forth in the Social
Security Administration Regulations. 20 C.F.R. § 404.1520; see
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also, e.g., Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
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, 675 F.2d at 467. If the claimant
meets that burden, the Commissioner bears the burden at Step Five
of establishing, with specific reference to the medical evidence,
that the claimant’s impairment or combination of impairments is not
of such severity as to prevent him from performing work that is
available in the national economy. Id.; 42 U.S.C. § 423(d)(2)(A);
see also, e.g., White v. Sec’y of Health and Human Servs., 910 F.2d
64, 65 (2d Cir. 1990). In making the required showing at Step Five,
the
ALJ
must
consider
the
claimant’s
RFC
along
with
other
vocational factors such as age, education, past work experience,
and transferability of skills. 20 C.F.R. § 404.1520(f); see also,
e.g., State of N.Y. v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).
IV.
The ALJ’s Decision
The ALJ determined that Johnson has the following “severe”
impairment: “status post cervical spine fracture.” (T.10). Although
Johnson has hypertension, there was no evidence that it affects him
more than minimally, and therefore it is not severe. (T.10).
Johnson has been diagnosed with asthma, but he did not mention it
at the hearing, he takes no medication for it, and he continues to
smoke a pack per day of cigarettes. (T.10).
While Johnson alleged a mental impairment in his application,
and testified that he suffers from depression, the ALJ found that
-6-
“his
only
depressive
symptom
is
sleep
disturbance,
which
is
explained by his pain[.]” (T.10). Even though the ALJ determined
Johnson’s depression was not a medically determinable impairment,
he went on to consider its effects on the four broad areas of
functioning and found that it did not cause more than “mild”
limitation in any functional area. (T.10-11).
In determining whether Johnson’s impairment met or equaled the
criteria of a listed impairment, the ALJ specifically considered
Listing 1.02 (disorders of the spine). (T.11). However, because
Johnson was able to ambulate effectively, he could not meet this
listing.
(T.11).
The
ALJ
extensively
considered
Johnson’s
subjective complaints, but found them not entirely credible based
upon the record as a whole. (T.14-15). The ALJ went on to assess
Johnson’s residual functional capacity (“RFC”) and found that he
had the ability to perform sedentary work, with the additional
limitations of only occasionally having to stoop, crouch, and
reach. (T.12-15). The ALJ found that these limitations had “little
or no effect” on the occupational base of unskilled sedentary work.
(T.16) (citations omitted).
The
ALJ
determined
that
as
of
the
date
of
Johnson’s
application, he could not return to his past relevant work. (T.1215). As a younger individual with a limited education, Johnson had
the RFC to perform jobs that existed in significant numbers in the
national economy, i.e., surveillance system monitor (Dictionary of
Occupation Titles (“DOT”) 379.367-010); call-out operator (DOT
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237.367-014);
Accordingly,
and
the
election
ALJ
clerk
found,
a
(DOT
finding
205.367-030).
of
“not
(T.16).
disabled” was
appropriate. (T.16).
V.
Plaintiff’s Contentions
Plaintiff makes the following contentions in his brief in
support of his motion for judgment on the pleadings: (1) the ALJ
failed to
apply
the
treating
physician
rule and
other
legal
standards in evaluating Plaintiff’s residual functional capacity
(“RFC”);
(2)
the
ALJ
did
not
properly
evaluate
Plaintiff’s
subjective statements regarding his symptoms and impairments; and
(3) the ALJ erroneously failed to consult a vocational expert
(“VE”) at Step Five. Plaintiff’s Memorandum of Law (“Pl’s Mem.”) at
1 (Dkt #7-1).
A.
Errors in the ALJ’s RFC Assessment
1.
The Treating Physician’s Medical Source Opinion
Dr. Luke Smart saw Johnson for back pain and completed a
Medical Source Opinion (“MSO”) after seeing Johnson for two visits.
According to Dr. Smart, Johnson does not need a cane; is probably
capable of low stress work; can walk one block at a time; can sit
for 15 minutes and stand for 10 minutes at a time, and can do both
for less than two hours out of a work day; must be allowed to
alternate between sitting and standing; must be allowed to take
unscheduled breaks about every hour; and will be absent, due to his
impairments, more than four days per month; and has other postural,
manipulative, and exertional limitations. (T.383-87).
-8-
2.
Dr.
The Consultative Examiner’s Opinion
Harbinder
Toor
conducted
a
consultative
physical
examination of Johnson and opined that he had “moderate to severe”
limitations in twisting, bending, and extending the neck and spine;
“moderate to severe” limitations in pushing, pulling, lifting, and
reaching because of pain in his neck and shoulders; and “moderate”
limitations in “walking a long time.” (T.202-03).
3.
The ALJ’s RFC Assessment
The ALJ stated that “[g]iving the claimant the benefit of the
doubt, the opinion of the consultative examiner[] that the claimant
has
moderate
to
severe
exertional,
postural
and
manipulative
limitations . . . is fully credited and construed as a limitation
to
sedentary
work
reaching.” (T.14).
with
occasional
stooping,
crouching
and
For purposes of the Act, work is considered
“sedentary” if it
involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket
files, ledgers, and small tools. Although a sedentary job
is defined as one which involves sitting, a certain
amount of walking and standing is often necessary in
carrying out job duties. Jobs are sedentary if walking
and standing are required occasionally and other
sedentary criteria are met.
20 C.F.R. § 404.1567(a). The Social Security Administration has
clarified that
“[o]ccasionally” means occurring from very little up to
one-third of the time, and would generally total no more
than about 2 hours of an 8–hour workday. Sitting would
generally total about 6 hours of an 8–hour workday.
Unskilled sedentary work also involves other activities,
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classified as “nonexertional,” such as capacities for
seeing, manipulation, and understanding, remembering, and
carrying out simple instructions.
Social Security Ruling 96–9p; see also Perez v. Chater, 77 F.3d 41,
46 (2d Cir. 1996) (citing Social Security Ruling 83–10).
4.
Plaintiff
Analysis
argues that
the
ALJ’s
RFC
finding
“is
not
in
compliance with the applicable legal standards” because the ALJ, as
a
lay
person,
improperly
“extrapolate[d]
functional
limitations . . . by ‘construing’ moderate to severe [sic] into
sedentary
reconcile
work;
particularly
treating
source
without
Dr.
offering
Smart’s
a
rationale
specific
to
functional
limitations with the vague (but severe) limitations provided by
Dr. Toor.” Pl’s Mem. at 13.
As an initial matter, Plaintiff has glossed over the fact that
the ALJ did accept certain of Dr. Toor’s “moderate to severe”
limitations, even though such concededly “vague” limitations have
been found by reviewing courts to be substantial evidence for
rejecting a consultative examiner’s opinion. See Pellam v. Astrue,
No. 12-1412, 2013 WL 309998, at *2 (2d Cir. Jan. 28, 2013)
(unpublished opn.) (citing Curry v. Apfel, 209 F.3d 117, 123 (2d
Cir. 2000), superceded by regulation on other grounds by 20 C.F.R.
§ 404.1560(c)(2)).
Plaintiff
argues
that
the
ALJ
improperly
“extrapolated”
functional limitations out of “‘bare medical findings[.]’” Pl’s
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Mem. at 13 (quoting Collins v. Astrue, 10-CV-00718(A)(M), 2012 WL
2573264, at * (W.D.N.Y. May 11, 2012), report and recommendation
adopted, 10-CV-00718(A), 2012 WL 2573261 (W.D.N.Y. June 29, 2012)
(citing Deskin v. Commissioner of Soc. Sec., 605 F. Supp.2d 908,
912 (N.D. Ohio 2008); Isaacs v. Astrue, No. 1:08-CV-00828, 2009 WL
3672060, at *11 (S.D. Ohio Nov. 4, 2009)). The cases cited by
Plaintiff are inapposite. In Collins, in contrast to Johnson’s
case, there was no medical source statement from the plaintiff’s
treating source addressing his physical capabilities, and therefore
the consultative examiner’s assessment was critical to the ALJ’s
RFC assessment. 2012 WL 2573264, at *10-11. In Isaacs, the ALJ’s
finding that the plaintiff had the RFC for medium work was “based
solely upon the ALJ’s own lay medical opinion.” Isaacs, 2009 WL
3672060, at*10. In Deskin, as in Isaacs, the ALJ made an RFC
determination without a medical advisor’s assessment. Deskin, 605
F. Supp.2d at 912 (citation omitted). In Collins, Deskin and
Isaacs, medical source opinions from the plaintiffs’ treating
physicians were lacking. Thus, they are factually distinguishable
from Johnson’s case.
Plaintiff also argues that the ALJ failed to properly apply
the treating physician’s rule by declining to give Dr. Smart’s
Medical
Source
significant
Opinion
weight.”
(“MSO”)
(T.14).
The
“controlling
ALJ
assumed
weight
that
or
even
Plaintiff
“exaggerated his symptoms when giving his history to Dr. Smart, as
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he did at the hearing,”2 thereby “cast[ing] into doubt” Dr. Smart’s
“whole opinion.” (T.14).
Under the “treating physician’s rule,” the ALJ must give
controlling weight to the treating physician’s opinion when the
opinion is “well-supported by medically acceptable clinical and
laboratory diagnostic techniques and is not inconsistent with the
other
substantial
evidence
in
[the]
record.”
20
C.F.R.
§ 404.1527(d)(2); see also, e.g., Halloran v. Barnhart, 362 F.3d
28, 31–32 (2d Cir. 2004); Shaw v. Chater, 221 F.3d 126, 134
(2d Cir. 2000).3
The ALJ had sufficient reason to discount Dr. Smart’s opinion.
First, as the ALJ noted, Dr. Smart had only seen Plaintiff on two
occasions, and thus they did not have a long-standing treating
relationship. Second, Dr. Smart’s opinion that could sit and
stand/walk for less than two hours in an eight-hour workday is not
supported by other evidence in the record, including Plaintiff’s
2
The ALJ’s assessment of Plaintiff’s credibility is discussed
further below in the following section.
3
Even if a treating physician’s opinion is deemed not to be
deserving of controlling weight, the ALJ still may give it “extra
weight” after considering the following factors: (1) length of the
treatment relationship and the frequency of examination, (2) nature
and extent of the treatment relationship, (3) the extent to which
the opinion is supported by other record evidence, (4) consistency,
(5) specialization of the treating physician, and (6) other factors
that are brought to the attention of the adjudicator. C.F.R. §
404.1527(d)(1)-(6); see also, e.g., Clark v. Commissioner of Soc.
Sec., 143 F.3d 115, 118 (2d Cir. 1998); Schaal v. Apfel, 134 F.3d
496, 503 (2d Cir. 1998).
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own testimony and his statements to examining physicians. (E.g.,
T.212 (stating to consultative psychiatric examiner that he spends
his days doing light chores, reading, socializing, and watching
television)).
Such
a
limitation
implies
that
Plaintiff
is
essentially confined to bed, but that is not the case.
In
addition,
it
appears
that
a
significant
factor
in
Dr. Smart’s opinion was his diagnosis of Plaintiff’s depressed
mood. (T.383, 384). However, the psychiatric consultative examiner,
Dr. Dennis Noia, noted that Johnson’s mood was “neutral”, his
intellectual functioning appeared to be in the average range, his
insight and judgment were “good”, and he appeared to be “capable of
dealing with stress.” (T.212-13). Accordingly, the examination
“suggest[ed] no significant psychiatric problems[,]” and Dr. Noia
assigned no Axis I diagnosis.
B.
Errors in the ALJ’s Credibility Assessment
The
ALJ
found
that
Plaintiff’s
medically
determinable
impairments could reasonably be expected to cause his alleged
symptoms,
but
that
his
statements
concerning
the
intensity,
persistence, and limiting effects of these symptoms were not
credible to the extent they were inconsistent with the ALJ’s RFC
assessment. (T.13). As Plaintiff points out, there is no support in
the regulations or the caselaw from this Circuit supporting the
propriety of basing a credibility determination solely upon whether
the ALJ deems the claimant’s allegations are congruent with the
ALJ’s
own
RFC
finding.
See,
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e.g.,
Smollins
v.
Astrue,
No. 11–CV–424, 2011 WL 3857123, at *11 (E.D.N.Y. Sept. 1, 2011);
Nelson v.
Astrue,
No.
5:09.CV.00909,
2010
WL
3522304,
at
*6
(N.D.N.Y. Aug. 12, 2010).
However, the ALJ in Johnson’s case went on to discuss his
credibility by comparing aspects of his testimony to the record
evidence.
The
allegations
ALJ
are
noted
not
that
“[i]nasmuch
consistent
with
his
as
the
claimant’s
residual
functional
capacity, it is because the claimant’s allegations, statements, and
testimony are not fully credible.” (T.14). The ALJ then articulated
specific reasons for finding Plaintiff not fully credible. As the
ALJ
noted,
Plaintiff
has
an
“erratic
work
history,
with
no
substantial gainful activity since 2000, well before the alleged
onset date, suggesting a lack of motivation to work.” (T.14). Given
that Johnson was previously denied disability benefits in 2005, the
ALJ found Johnson’s account of his work experience–that he had
worked as a roofer for the past 10 years and garnered sufficient
earnings to support his family–to be “bizarre.” (T.14). Plaintiff
contradicted himself on this point on other occasions, stating on
a 2008 Disability Report that he worked as a roofer from 1998 to
2003, but then informing a consultative examiner in 2008 that he
had last worked as a roofer in 2007, and subsequently testifying
that he had last worked on the date of his accident in February
2008. (T.14) (citations to record omitted).
With regard to his personal information, Johnson stated in his
Disability Report that he had only attended high school through the
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tenth grade, but he told a consultative examiner that he had
finished high school. (T.14). He testified that he lives with his
three young children, but he told a consultative examiner that he
does not perform childcare. (T.14). Johnson testified that he can
only sit for 10 to 13 minutes at a time, but the ALJ observed that
he sat through the administrative hearing, which lasted over
30
minutes.
(T.14).
He
told
a treating
source
that Tramadol
provides adequate pain relief, but he testified that no medication
adequately relieves his pain. (T.14-15).
Moreover, as the ALJ noted, Johnson greatly exaggerated his
injuries, describing them in terms not supported by the record. He
characterized his neck injury during the motor vehicle accident as
“essentially a decapitation, with his head held onto his body just
by his skin, and that his injury was like a lynching.” (T.15). To
the contrary, his injury was a non-displaced fracture of his C2
vertebra and a mildly displaced fracture of his C1 vertebra. (T.15)
(citation omitted). Johnson testified that he exercises to help
ease his pain, but he has refused to go to physical therapy
because, he claims, it hurts too much. He sleeps with a soft neck
brace at night to help make him more comfortable, but, at the time
of his injury, he declined a “halo”-type neck brace recommended by
his doctors saying that he did not want it screwed into his head.
(T.15).
In addition, as the ALJ noted, Johnson was “completely noncompliant
with
all
recommended
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treatment”
for
his
cervical
fractures and medical appointments. (T.15) (citations omitted). The
ALJ did not err in taking into account this evidence, as one factor
that may impact the claimant’s credibility is a showing that the
claimant is not following the treatment as prescribed, and no good
reason exists for that failure. See Social Security Ruling 96–7p
(“SSR 96-7p”), 1996 WL 374186, at *2 (S.S.A. July 2, 1996).
“Conclusory
findings
of
a
lack
of
credibility
will
not
suffice; rather, an ALJ’s decision ‘must contain specific reasons
for the finding on credibility, supported by the evidence in the
case record, and must be sufficiently specific to make clear to the
individual
and
to
any
subsequent
reviewers
the
weight
the
adjudicator gave to the individual’s statements and the reasons for
that weight.’” Escalante v. Astrue, No. 11 Civ. 375, 2012 U.S.
Dist. LEXIS 879, at *23, 2012 WL 13936 (S.D.N.Y. Jan. 4, 2012))
(quoting Evaluation of Symptoms in Disability Claims: Assessing the
Credibility of an Individual’s Statements, 61 Fed. Reg. 34,483,
34,484 (July 2, 1996)). Here, the ALJ’s credibility finding was not
conclusory. He discussed in detail specific aspects of Plaintiff’s
testimony concerning his limitations and symptoms, compared them to
the
record
evidence,
and
explained
how
he
arrived
at
his
conclusions.
C.
The ALJ’s Failure to Consult a VE
Plaintiff contends that at Step Five, the ALJ erred in relying
exclusively
on
the
medical-vocational
guidelines
contained
in
20 C.F.R. Part 404, Subpart P, App. 2, commonly referred to as “the
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Grids”, and failing to consult a VE. Plaintiff argues that his pain
was a significant nonexertional impairment that precluded the ALJ
from solely relying on the Grids. See 20 C.F.R. Part 404, Subpart
P, App. 2, §§ 200.00(e)(2), 201.00(h); see also Bapp v. Bowen, 802
F.2d 601, 605 (2d Cir. 1986).
Plaintiff states he “clearly suffers from pain and postural
limitations[,]” and “[t]hese limitations according to Drs. Smart
and
Toor
would
result
in
significant
postural,
mental
(concentration and memory), and manipulative limitations.” Pl’s
Mem. at 18. Plaintiff’s argument is not supported by the record
evidence. Contrary to Plaintiff’s suggestion, the consultative
psychiatric examiner, Dr. Noia, found that Johnson’s attention and
concentration were intact; and he was able to do counting, simple
calculations, and serial 3s. (T.212). Although his recent and
remote memory skills were mildly to moderately impaired, based on
his ability recall objects and restate digits, Dr. Noia found
Johnson’s cognitive functioning to be normal and appropriate.
(T.212). With regard to manipulative limitations, Dr. Smart did not
indicate that Johnson had any limitations in his abilities to use
his hands to grasp, turn, and twist objects; or to use his fingers
to perform fine manipulations. (T.386). Finally, the postural
limitations ascribed to Johnson by Dr. Smart and Dr. Toor were
incorporated by the ALJ into his RFC assessment, as discussed
above. Thus, the errors asserted by Plaintiff do not appear to be
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well-founded, and the Court concludes that the ALJ did not commit
legal error in declining to call a VE.
VI.
Conclusion
After careful review of the entire record, this Court finds
that the Commissioner’s denial of benefits was not erroneous as a
matter of law and was based upon substantial evidence. Accordingly,
the ALJ’s decision is affirmed. Defendant’s motion for judgment on
the pleadings (Dkt #6) is granted, Plaintiff’s motion for judgment
on the pleadings (Dkt #7) is denied, and the complaint (Dkt #1) is
dismissed.
IT IS SO ORDERED.
S/Michael A. Telesca
___________________________________
HONORABLE MICHAEL A. TELESCA
United States District Judge
Dated:
March 19, 2013
Rochester, New York
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