Game v. Colvin

Filing 11

DECISION AND ORDER. The Commissioner's Motion for Judgment on the Pleadings 10 is GRANTED and Plaintiff's Motion for Judgment on the Pleadings 8 is DENIED. Plaintiff's Complaint 1 is DISMISSED WITH PREJUDICE. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 4/17/2017. (AFM)-CLERK TO FOLLOW UP-

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
ELI RICHARD GAME,
Plaintiff,
Case # 16-CV-6234-FPG
v.
DECISION AND ORDER
NANCY A. BERRYHILL,1 ACTING COMMISSIONER
OF SOCIAL SECURITY,
Defendant.

Eli Richard Game (“Game” or “Plaintiff”) brings this action pursuant to the Social
Security Act (“the Act”) seeking review of the final decision of the Acting Commissioner of
Social Security (“the Commissioner”) that denied his application for Supplemental Security
Income (“SSI”) under Title XVI of the Act. ECF No. 1. The Court has jurisdiction over this
action under 42 U.S.C. §§ 405(g), 1383(c)(3).
Both parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil
Procedure 12(c). ECF Nos. 8, 10. For the reasons that follow, the Commissioner’s motion is
GRANTED and Plaintiff’s motion is DENIED.
BACKGROUND
On March 23, 2013 Game protectively applied for SSI with the Social Security
Administration (“the SSA”). Tr.2 156-16. He alleged that he had been disabled since June 1,
2010 due to mild cerebral palsy, Tetralogy of Fallot, Asperger’s Syndrome, and epilepsy. Tr.
174. On March 31, 2015, a hearing was held before Administrative Law Judge Elizabeth W.
Koennecke (“the ALJ”) at which Game and a vocational expert (“VE”) appeared and testified.

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Nancy A. Berryhill is now the Acting Commissioner of Social Security and is therefore substituted for
Carolyn W. Colvin as the defendant in this suit pursuant to Federal Rule of Civil Procedure 25(d).
2
References to “Tr.” are to the administrative record in this matter.

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Tr. 39-48. On April 16, 2015, the ALJ issued a decision finding that Game was not disabled
within the meaning of the Act. Tr. 19-33. On February 9, 2016, the Appeals Council denied
Game’s request for review. Tr. 1-7. Thereafter, Game commenced this action seeking review of
the Commissioner’s final decision. ECF No. 1.
LEGAL STANDARD
I.

District Court Review
“In reviewing a final decision of the SSA, this Court is limited to determining whether

the SSA’s conclusions were supported by substantial evidence in the record and were based on a
correct legal standard.” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (internal quotation
marks omitted); see also 42 U.S.C. § 405(g). The Act holds that a decision by the Commissioner
is “conclusive” if it is supported by substantial evidence. 42 U.S.C. § 405(g). “Substantial
evidence means more than a mere scintilla. It means such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Moran v. Astrue, 569 F.3d 108, 112 (2d
Cir. 2009) (internal quotation marks omitted). It is not this Court’s function to “determine de
novo whether [the claimant] is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)
(internal quotation marks omitted); see also Wagner v. Sec’y of Health & Human Servs., 906
F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary’s decision is not de novo and
that the Secretary’s findings are conclusive if supported by substantial evidence).
II.

Disability Determination
An ALJ must follow a five-step sequential evaluation to determine whether a claimant is

disabled within the meaning of the Act. See Game v. City of New York, 476 U.S. 467, 470-71
(1986). At step one, the ALJ must determine whether the claimant is engaged in substantial
gainful work activity. See 20 C.F.R. § 404.1520(b). If so, the claimant is not disabled. If not,

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the ALJ proceeds to step two and determines whether the claimant has an impairment, or
combination of impairments, that is “severe” within the meaning of the Act, meaning that it
imposes significant restrictions on the claimant’s ability to perform basic work activities. 20
C.F.R. § 404.1520(c). If the claimant does not have a severe impairment or combination of
impairments, the analysis concludes with a finding of “not disabled.” If the claimant does, the
ALJ continues to step three.
At step three, the ALJ examines whether a claimant’s impairment meets or medically
equals the criteria of a listed impairment in Appendix 1 of Subpart P of Regulation No. 4 (the
“Listings”). 20 C.F.R. § 404.1520(d). If the impairment meets or medically equals the criteria
of a Listing and meets the durational requirement (20 C.F.R. § 404.1509), the claimant is
disabled. If not, the ALJ determines the claimant’s residual functional capacity (“RFC”), which
is the ability to perform physical or mental work activities on a sustained basis, notwithstanding
limitations for the collective impairments. See 20 C.F.R. § 404.1520(e)-(f).
The ALJ then proceeds to step four and determines whether the claimant’s RFC permits
him or her to perform the requirements of his or her past relevant work. 20 C.F.R. § 404.1520(f).
If the claimant can perform such requirements, then he or she is not disabled. If he or she
cannot, the analysis proceeds to the fifth and final step, wherein the burden shifts to the
Commissioner to show that the claimant is not disabled. To do so, the Commissioner must
present evidence to demonstrate that the claimant “retains a residual functional capacity to
perform alternative substantial gainful work which exists in the national economy” in light of his
or her age, education, and work experience. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir.
1999) (quotation marks omitted); see also 20 C.F.R. § 404.1560(c).

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DISCUSSION
I.

The ALJ’s Decision
The ALJ’s decision analyzed Game’s claim for benefits under the process described

above. At step one, the ALJ found that Game had not engaged in substantial gainful activity
since the application date. Tr. 21. At step two, the ALJ found that Game has a mental
impairment, which constitutes a severe impairment. Tr. 21-23. At step three, the ALJ found that
this impairment did not meet or medically equal an impairment in the Listings. Tr. 23-24
Next, the ALJ determined that Game retained the RFC to perform light work3 with
additional limitations. Tr. 25-31. Specifically, the ALJ found that Game can push, pull, lift,
and/or carry 30 pounds occasionally and 10 pounds frequently; has an unrestricted ability to sit,
stand, and walk; can occasionally squat, twist, turn, bend, kneel, crawl, reach overhead, finger,
and use his hands for fine manipulation; and must avoid hazards, moving machinery, and
working at heights. Tr. 25. The ALJ also found that Game is limited to simple work with
limited interaction with coworkers and supervisors; can understand and follow simple
instructions and directions, perform simple tasks with supervision and independently, maintain
attention and concentration for simple tasks, regularly attend to a routine and maintain a
schedule, relate to and interact with others to the extent necessary to carry out simple tasks; must
avoid work requiring complex interaction or joint efforts to achieve work goals and interaction
with the public; and can handle simple work-related stress, i.e., he can make simple decisions
related to completing tasks and can work in a stable, unchanging work environment. Id.

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“Light 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, [the claimant] must
have the ability to do substantially all of these activities. If someone can do light work, [the SSA] determine[s] that
he or she can also do sedentary work, unless there are additional limiting factors such as loss of fine dexterity or
inability to sit for long periods of time.” 20 C.F.R. § 416.967(b).

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At step four, the ALJ indicated that Game had no past relevant work. Tr. 31. At step
five, the ALJ relied on the VE’s testimony and found that Game can adjust to other work that
exists in significant numbers in the national economy given his RFC, age, education, and work
experience. Tr. 31-32. Specifically, the VE testified that Game could work as a shipping and
receiving weigher, router, and route aid. Tr. 32. Accordingly, the ALJ concluded that Game was
not “disabled” under the Act. Tr. 32-33.
II.

Analysis
Game argues that remand is required because the ALJ erred when she found that he did

not meet or medically equal Listing 12.10: Autistic Disorder and Other Pervasive Developmental
Disorders. ECF No. 8-2, at 8-10. The Commissioner maintains that the ALJ properly evaluated
Listing 12.10 and that her related finding was supported by substantial evidence. ECF No. 10-1,
at 12-15.
At step three of the disability analysis, the ALJ examines whether a claimant’s
impairment meets or medically equals the criteria of a Listings impairment.

20 C.F.R. §

404.1520(d). If the impairment meets or medically equals the criteria of a Listing and meets the
durational requirement (20 C.F.R. § 404.1509), the claimant is disabled.

If not, the ALJ

determines the claimant’s RFC and proceeds to the next steps of the analysis. 20 C.F.R. §
404.1520(e)-(f).
To match an impairment in the Listings, the claimant’s impairment “must meet all of the
specified medical criteria” of a listing. Barber v. Comm’r of Soc. Sec., 6:15-CV-0338
(GTS/WBC), 2016 WL 4411337, at *3 (N.D.N.Y. July 22, 2016) (citing Sullivan v. Zebley, 493
U.S. 521, 530 (1990)). “An impairment that manifests only some of those criteria, no matter
how severely, does not qualify.” Id. An impairment may also be “medically equivalent” to a

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listed impairment if it is “at least equal in severity and duration to the criteria of any listed
impairment.” Id. (citing 20 C.F.R. § 416.926(a)).
Listing 12.10 encompasses autistic disorder and other pervasive developmental disorders.
20 C.F.R. § 404 Subpt. P, App. 1, § 12.10. The Listing is met when the criteria of both
Paragraphs A and B are satisfied. For autistic disorders, the Paragraph A requires all of the
following: qualitative deficits in reciprocal social interaction; qualitative deficits in verbal and
nonverbal communication and in imaginative activity; and markedly restricted repertoire of
activities and interests. Id. at § 12.10A. The Paragraph B criteria must also be met and requires
two of the following: marked restriction of activities of daily living; marked difficulties in
maintaining social functioning; marked difficulties in maintaining concentration, persistence, or
pace; or repeated episodes of decompensation each of extended duration. Id. at § 12.10B.
Here, the ALJ determined at step three that Game did not meet the criteria of Listing
12.10. Tr. 23-24. The ALJ’s determination did not discuss the Paragraph A criteria, however,
the criteria of both Paragraphs A and B must be established to satisfy the Listing. Thus, any
error to specifically address the Paragraph A criteria is harmless if the ALJ properly assessed the
Paragraph B criteria and properly concluded that Game did not meet those criteria. See Barber,
2016 WL 4411337, at *3.
The ALJ considered the Paragraph B criteria by examining each of the categories
outlined above. Tr. 23-24. In activities of daily living, the ALJ found that Game had no
restriction. Tr. 23. The ALJ supported this conclusion by noting that Game attended college,
was planning on earning a degree in early childhood development, and reported at a consultative
exam that he cooked, cleaned, washed dishes, and cared for his personal hygiene. Id. (citing Tr.
399, 615).

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In social functioning, the ALJ found that Game has no more than moderate difficulties.
Tr. 23. The ALJ supported this conclusion by noting that Game was pleasant and cooperative at
an evaluation in June 2012. Id. (citing Tr. 585). The ALJ also pointed out that at a consultative
examination in May 2013, Game was cooperative with good social skills, was neat and well
groomed, maintained appropriate eye contact, and had adequate expressive and receptive
language skills. Id. (citing Tr. 614).
As to concentration, persistence, or pace, the ALJ concluded that Game has only mild
difficulties. Tr. 24. The ALJ supported this conclusion by noting that during a consultative
examination, Game’s attention, concentration, and recent and remote memory skills were intact.
Id. (citing Tr. 614). Game could complete serial threes accurately, recall three of three objects
immediately and after five minutes, and repeat six digits forward and three digits backward. Id.
As to episodes of decompensation, the ALJ concluded that Game had experienced no
such episodes. Tr. 24. The ALJ noted that Game had never been hospitalized for psychiatric
treatment and that his attorney did not assert that Game had any episodes of decompensation. Id.
The ALJ also supported her step three decision by relying on the opinion of a State
Agency psychological consultant. Tr. 24. Upon reviewing the evidence of record, the consultant
concluded that Game’s impairment did not meet or medically equal Listing 12.10 and
specifically noted that the Paragraph B criteria had not been satisfied. Tr. 24 (citing Tr. 52).
After considering the ALJ’s decision and reviewing the record, the Court finds that the
ALJ did not err. Although Game points to minimal evidence indicating that he had poor daily
living and socialization skills, ECF No. 8-2, at 4-5 (citing Tr. 587, 658), the ALJ was entitled to
resolve any conflicts in the record. See Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)
(“Genuine conflicts in the medical evidence are for the Commissioner to resolve.”) (citation

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omitted); Cage v. Comm’r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (when the court
reviews a denial of disability benefits it must “defer to the Commissioner’s resolution of
conflicting evidence”).

The ALJ’s step three decision is well-reasoned and supported by

substantial evidence, and the Commissioner’s decision is therefore affirmed.
CONCLUSION
The Commissioner’s Motion for Judgment on the Pleadings (ECF No. 10) is GRANTED,
and Plaintiff’s Motion for Judgment on the Pleadings (ECF No. 8) is DENIED. Plaintiff’s
Complaint (ECF No. 1) is DISMISSED WITH PREJUDICE. The Clerk of Court is directed to
enter judgment and close this case.

IT IS SO ORDERED.
Dated: April 17, 2017
Rochester, New York
______________________________________
HON. FRANK P. GERACI, JR.
Chief Judge
United States District Court 

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