D'Angelo v. Colvin
ORDER denying 9 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/17/17. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
DECISION AND ORDER
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social Security,
Sebastian D’Angelo (“Plaintiff”), represented by counsel,
brings this action pursuant to Title II of the Social Security Act
Commissioner of Social Security (“the Commissioner”) denying his
application for Disability Insurance Benefits (“DIB”). This Court
has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g),
application for DIB, alleging disability beginning January 1, 2013.
The application was initially denied on October 17, 2013. Plaintiff
timely filed a written request for a hearing on October 28, 2013,
which was held on June 23, 2015, by administrative law judge John
P. Costello (“the ALJ”). Plaintiff appeared with his attorney and
testified, as did Carol G. McManus, an impartial vocational expert
(“the VE”). (T.31-69).1 The ALJ issued an unfavorable decision on
(T.17-26). Plaintiff’s request for review by the Appeals Council
was denied on August 24, 2016, making the ALJ’s decision the final
decision of the Commissioner.
Presently before the Court are the parties’ motions for
judgment on the pleadings pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure. The Court adopts and incorporates by
reference herein the undisputed and comprehensive factual summaries
contained in the parties’ briefs. The Court will discuss the record
evidence further below, as necessary to the resolution of the
For the reasons discussed below, the Commissioner’s decision
III. The ALJ’s Decision
At step one of the sequential evaluation, the ALJ found that
Plaintiff met the insured status requirements of the Act through
September 30, 2016, and had not engaged in substantial gainful
activity (“SGA”) since January 1, 2013, the alleged onset date
At the hearing, Plaintiff testified that since the AOD,
he has been working part-time as a driver’s education instructor;
Citations to “T.” in parentheses refer to pages from the transcript of the
certified administrative record.
however, the ALJ found, the earnings from that job do not reach the
level of SGA within the meaning of the Act.
following “severe” impairments: sensorineural hearing loss and
tinnitus. The ALJ found that Plaintiff’s diabetes mellitus and
benign essential hypertension were not “severe” as they are both
anxiety is not “severe” based on Plaintiff’s testimony that his
anxiety symptoms are controlled with medications that he takes on
psychotherapy or any other treatment modality for this impairment.
In addition, while Plaintiff reported depressive symptoms during
anxiety-related symptomatology. Applying the special technique, the
ALJ assessed Plaintiff as having no limitations in any of the
relevant functional areas (activities of daily living; social
maintaining concentration, persistence or pace).
Furthermore, Plaintiff has not had any episodes of decompensation.
At step three, the ALJ determined that Plaintiff does not have
an impairment or combination of impairments that meets or medically
equals the severity of one of the listed impairments in 20 C.F.R.
Part 404, Subpart P, Appendix 1 (20 C.F.R. §§ 404.1520(d), 404.1525
capacity (“RFC”) as follows: He can perform a full range of work at
all exertional levels but cannot climb ladders or scaffolds or work
at unprotected heights, and he is limited to working in no more
than a moderate noise level environment.
At step four, the ALJ found that Plaintiff, who was 62 yearsold as of the onset date, is capable of performing past relevant
work as an elementary school teacher (Dictionary of Occupational
(“SVP”) 7, light exertional level) because this work does not
require the performance of any work-related activities precluded by
his RFC, and does not require him to work in an environment with a
greater than moderate noise-level.
The ALJ proceeded to make
an alternative step five finding that there are other jobs existing
in the national economy that Plaintiff is also able to perform.
Plaintiff’s age (closely approaching retirement age), education (at
least a high school education), work experience, and RFC, Plaintiff
can perform the requirements of representative occupations such as
level), of which there are 929,540 jobs in the national economy;
and hospital food service worker (DOT #319.677-014, SVP 2, medium
exertional level), of which there are 250,840 jobs in the national
economy. The ALJ determined that a finding of “not disabled” was
therefore appropriate under the framework of Section 204.00 in the
Scope of Review
When considering a claimant’s challenge to the decision of the
Commissioner denying benefits under the Act, the district court is
limited to determining whether the Commissioner’s findings were
Commissioner employed the proper legal standards. Green-Younger v.
Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court
must accept the Commissioner’s findings of fact, provided that such
findings are supported by “substantial evidence” in the record.
See 42 U.S.C. § 405(g) (the Commissioner’s findings “as to any
fact, if supported by substantial evidence, shall be conclusive”).
The reviewing court nevertheless must scrutinize the whole record
and examine evidence that supports or detracts from both sides.
Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation
omitted). “The deferential standard of review for substantial
evidence does not apply to the Commissioner’s conclusions of law.”
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley
v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).
RFC Unsupported by Substantial Evidence
Plaintiff argues that the RFC is unsupported by substantial
nonexertional limitations into the RFC assessment.
evidence’ is ‘more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept as adequate to support
a conclusion.’” Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir.
2012) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
Because Plaintiff’s argument focuses solely on the substantiality
of the evidence supporting the RFC, it is subject to a “very
deferential standard of review.” Brault v. Social Sec. Admin.,
Comm’r, 683 F.3d 443, 448 (2d Cir. 2012). Notably, “once an ALJ
finds facts, [the reviewing court] can reject those facts only if
a reasonable factfinder would have to conclude otherwise.” Id.
(emphasis in original; internal quotation marks omitted).
Plaintiff contends that the ALJ failed to incorporate his
“recurring inability to hear or receive communication” or his “need
tinnitus.” (Pl’s Mem. at 16).
To support these limitations,
Plaintiff relies on his own testimony that his hearing loss “flares
up” from time to time and the notation by treating source Paul O.
Dutcher, M.D. that Plaintiff’s hearing loss, which is caused by an
fluctuations in his ability to hear. Dr. Dutcher opined that due to
Plaintiff’s hearing loss, he would be “off task” more than 30% of
Dr. Dutcher’s notation, in July of 2013, that Plaintiff’s hearing
fluctuated despite hearing aid use, but he did afford only “some
weight” to Dr. Dutcher’s RFC assessment issued on May 22, 2015,
opining that Plaintiff would be “off task” more than 30% of an 8hour
clinical evidence of record, and in particular, [Dr. Dutcher]’s own
audiological and physical examination findings or the conservative
treatment history.” As the ALJ noted, Dr. Dutcher reported that
Plaintiff’s “hearing was stable with treatment and use of hearing
aids[,]” and “as [Plaintiff]’s hearing had improved, the doctor
suggested that [Plaintiff] [be] re-evaluated every 12 months.”
Specifically, in June of 2014, Dr. Dutcher observed that Plaintiff
Plaintiff’s tympanic membranes were clear, intact, and mobile; the
right membrane had healed completely, and there were no noted
Dr. Dutcher suggested that Plaintiff return in a year for a followup. On May 22, 2015, Dr. Dutcher issued his highly restrictive RFC
assessment; however, there are no contemporaneous clinical notes
indicating a worsening in Plaintiff’s condition from June of 2014.
Dr. Dutcher’s RFC assessment also was inconsistent with the benign
Plaintiff “hears well and has no difficulty communicating with the
hearing aids in place . . . during the examination.” The ALJ
remarked that, according to Dr. Toor, “except for the hearing loss
when not using a hearing aid, bilaterally, [Plaintiff] has no other
activities do not support a greater restriction due to fluctuations
in hearing-ability; as the ALJ noted, Plaintiff works part-time as
a driver’s education instructor and acknowledged that he had
improvement of hearing with the use of amplifiers. Plaintiff
testified that loud noises, not one-on-one conversations, caused
created hearing difficulties for him. The ALJ incorporated a
substantial evidence as discussed above.
Plaintiff also asserts that the ALJ failed to include his
“need to handle moments of dizziness with associated vomiting, or
his need to handle concentration problems related to hearing loss
or tinnitus.” (Pl’s Mem. at 16). However, on the RFC questionnaire,
when asked about whether Plaintiff experienced limitations due to
(T.531). In other words, Dr. Dutcher apparently did not consider
Moreover, Plaintiff has not contested the ALJ’s step two finding,
which did not analyze dizziness or vertigo attacks as potentially
“severe” impairments. Thus, there is a lack of substantial evidence
in the record to a restriction based on alleged vertigo attacks and
RFC Fails to Align with a Medical Expert Opinion
Plaintiff contends that no particular medical expert opinion
supports the ALJ’s RFC assessment. (See Pl’s Mem. at 18-19).
However, as noted above, consultative physician Dr. Toor opined
Dr. Dutcher’s restrictive assessment, it is inaccurate to say that
assessment. Courts have consistently ruled that “the opinion of a
substantial evidence.” Gonzalez v. Chater, No. 93 Civ. 7200, 1996
WL 442798, at *5 (S.D.N.Y. Aug. 6, 1996) (citing Mongeur v.
Heckler, 722 F.2d 1033, 1039 (2d Cir. 1983)), aff’d, 152 F.3d 918
(2d Cir. 1998). “In this regard, the report of a consultative
(citing Mongeur, 722 F.2d at 1039 (citing Parker v. Harris, 626
F.2d 225 (2d Cir. 1980))). Dr. Toor’s consultative report here
provides “substantial contrary evidence” to treating physician
Dr. Dutcher’s restrictive opinion.
Commissioner’s determination was not the product of legal error and
is supported by substantial evidence. Therefore, the Commissioner’s
decision to deny Plaintiff benefits is affirmed. Accordingly, it is
ORDERED that Defendant’s Motion for Judgment on the Pleadings
is granted, and it is further
ORDERED that Plaintiff’s Motion for Judgment on the Pleadings
The Clerk of Court is directed to close this case.
S/Michael A. Telesca
HONORABLE MICHAEL A. TELESCA
United States District Judge
August 17, 2017
Rochester, New York
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