Brandon Scott W. v. Berryhill

298 F. Supp. 3d 577
CourtDistrict Court, W.D. New York
DecidedApril 9, 2018
Docket16–CV–6657L
StatusPublished
Cited by3 cases

This text of 298 F. Supp. 3d 577 (Brandon Scott W. v. Berryhill) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brandon Scott W. v. Berryhill, 298 F. Supp. 3d 577 (W.D.N.Y. 2018).

Opinion

DAVID G. LARIMER, United States District Judge

Plaintiff appeals from a denial of disability benefits by the Commissioner of Social Security ("the Commissioner"). The action is one brought pursuant to 42 U.S.C. § 405(g) to review the Commissioner's final determination.

On December 28, 2012, plaintiff, then 36 years old, filed an application for supplemental security income, alleging an inability to work since September 1, 2008. (Dkt. # 5 at 18).1 His application was initially denied. Plaintiff requested a hearing, which was held October 30, 2014 before Administrative Law Judge ("ALJ") Michael W. Devlin. The ALJ issued an unfavorable decision on February 27, 2015, concluding that plaintiff was not disabled under the Social Security Act. That decision became the final decision of the Commissioner when the Appeals Council denied review on August 1, 2016 (Dkt. # 5 at 1-3). Plaintiff now appeals.

The plaintiff has moved, and the Commissioner has cross moved, for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). For the reasons set forth below, the Commissioner's cross motion (Dkt. # 14) is granted, plaintiff's motion (Dkt. # 9) is denied, and the complaint is dismissed.

DISCUSSION

An ALJ proceeds though a well-established five-step evaluation in determining whether a claimant is disabled within the meaning of the Social Security Act, familiarity with which is presumed. See Bowen v. City of New York , 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986). The Commissioner's decision that plaintiff is not disabled must be affirmed if it is supported by substantial evidence, and if the ALJ has applied the correct legal standards. See 42 U.S.C. § 405(g) ; Machadio v. Apfel , 276 F.3d 103, 108 (2d Cir. 2002).

Here, the ALJ determined that plaintiff suffers from the following impairments: degenerative changes in the lumbar spine, recurrent dislocation of the right shoulder, dysthymic disorder (chronic depression), anxiety disorder, antisocial personality disorder, and pedophilia. Upon review of the evidence of record, the ALJ found that the plaintiff has the RFC to perform sedentary work, except that he is limited to only occasionally lifting or carrying 10 pounds with his non-dominant left arm, but can *579frequently lift or carry less than 10 pounds with his non-dominant left arm. Plaintiff can never lift, carry, push, pull, handle, or reach in any direction, with his dominant right arm. He can occasionally finger with his right hand. He can stand and/or walk for at least two hours, and sit for about six hours, in an eight-hour workday. Plaintiff can frequently climb ramps and/or stairs, balance, stoop, kneel, crouch, and crawl. He can never climb ladders, ropes or scaffolds. He can understand, remember and carry out only simple instructions and tasks, can have no more than occasional contact with the general public, and is limited to a low stress environment (i.e., no supervisory duties, no independent decision-making required, no strict production quotas, and minimal changes in work routine and processes). He can maintain concentration and focus for up to two hours at a time. (Dkt. # 5 at 22-23).

When presented with this RFC, vocational expert Peter A. Manzi testified that plaintiff could perform the position of surveillance system monitor. (Dkt. # 5 at 29).

A. The ALJ's RFC Determination

Initially, plaintiff contends that the ALJ erred because he gave "significant" weight to the opinions of plaintiff's treating physician, Dr. David Blasczak, and State agency psychologist Dr. T. Harding, but failed to incorporate their opinions into plaintiff's RFC. Specifically, plaintiff claims that the RFC determined by the ALJ failed to fully account for Dr. Blasczak's finding that plaintiff is "very limited" in his ability to perform work at a consistent pace (Dkt. # 5 at 445-46), and Dr. Harding's opinion that plaintiff would be "moderately" limited in the ability to complete a normal workday and/or perform at a consistent pace without interruptions caused by psychological symptoms. (Dkt. # 5 at 90).

I find that the RFC determined by the ALJ, which notes that plaintiff can maintain concentration and focus for "up to two hours at a time," is limited to simple instructions and tasks, must remain in a low stress environment, and cannot be required to perform work with production quotas, sufficiently accounts for the credible limitations in pace-keeping that are described in the opinions of Dr. Blasczak and Dr. Harding. To the extent that Dr. Harding's opinion might also be interpreted to suggest moderate difficulties in concentration,2 district courts in this circuit have held that an RFC which includes the ability to concentrate for up to two hours at a time, with or without the additional limitations to simple tasks and a low-stress, non-production pace environment that the ALJ included here, is sufficient to permit a claimant with "moderate" limitations in attention and concentration to work. See DeRosia v. Colvin, 2017 U.S. Dist. LEXIS 149272 at *67 (W.D.N.Y. 2017); Mitchell v. Colvin , 2017 U.S. Dist. LEXIS 117998 at *52 (W.D.N.Y. 2017); Miller v. Colvin , 2015 U.S. Dist. LEXIS 39274 at *40 (W.D.N.Y. 2015); Buscemi v. Colvin , 2014 U.S. Dist. LEXIS 134827 at *37-*38 (W.D.N.Y. 2014).

The RFC determined by the ALJ, who concluded that the plaintiff's physical limitations were primarily limited to his right arm, and that his psychological limitations *580"are no greater than moderate," (Dkt. # 5 at 27),3 is also consistent with plaintiff's longitudinal medical history and the medical opinions of record.

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Bluebook (online)
298 F. Supp. 3d 577, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brandon-scott-w-v-berryhill-nywd-2018.