Valdez v. Commissioner of Social Security

• Court: District Court, N.D. New York
• Decided: February 20, 2024
• Docket: 8:22-cv-00901
• Status: Unknown

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ TYLER V., Plaintiff, v. 8:22-CV-0901 (ML) COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: TYLER V. Pro se Plaintiff 2091 Plumbrook Road Norfolk, New York 13667

SOCIAL SECURITY ADMINISTRATION KRISTINA COHN, ESQ. Counsel for the Defendant Office of the General Counsel 6401 Security Boulevard Baltimore, Maryland 21235

MIROSLAV LOVRIC, United States Magistrate Judge ORDER Currently pending before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), is a motion for judgment on the pleadings.1 Oral argument was heard in

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. § 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. Defendant, the only moving party, argues that the ALJ's sequential analysis and her ultimate determination that Plaintiff was not disabled were supported connection with that motion on February 13, 2024, during a telephone conference conducted on the record. At the close of argument, I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner’s determination was supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) Defendant’s motion for judgment on the pleadings (Dkt. No. 22) is GRANTED. 2) The Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED. 3) Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. 4) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiffs Complaint in its entirety and closing this case.

Dated: February 20, 2024 Binghamton, New York Miroslav Lovric U.S. Magistrate Judge by substantial evidence. Plaintiff was represented by counsel during the administrative hearing and appeal process, but commenced this proceeding via pro se. Plaintiff has filed various correspondence and a copy of the Administrative Transcript with the Court, but has not filed a formal brief or other arguments responsive to Defendant's motion, despite being given an opportunity to do so. In the Northern District of New York, General Order No. 18 notifies parties of the consequences of failing to file a brief in connection with a Social Security action and, "A party's brief may be its only opportunity to set forth arguments that entitle the party to a judgment in its favor. The failure to file a brief by either party may result in the consideration of the record without the benefit of the party's arguments." A copy of General Order No. 18 was provided to Plaintiff on August 30, 2022, see Docket No. 4.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x TYLER V., Plaintiff, -v- 8:22-CV-901 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x SOCIAL SECURITY DECISION TRANSCRIPT BEFORE THE HONORABLE MIROSLAV LOVRIC February 13, 2024 15 Henry Street, Binghamton, New York For the Plaintiff: BY: TYLER V., PRO SE For the Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, Maryland 21235 BY: KRISTINA D. COHN, ESQ.

Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all parties present by telephone. 2 Time noted: 1:08 p.m.) 3 THE COURT: All right. Well, the Court's going to 4 begin its decision analysis as follows: First, I want to 5 reiterate that the Court has reviewed all of the briefs filed in 6 this case. The Court has also reviewed the administrative

7 record that has been filed in this matter, as well. The Court 8 has taken into account the arguments and comments made today by 9 both sides. 10 So as I indicated earlier, the Court is going to 11 render on the record here its analysis, reasoning, and decision, 12 and then I will have that transcribed and made available to both 13 sides in the written order that I file on the docket. 14 So the Court begins its analysis as follows: 15 Plaintiff has commenced this proceeding pursuant to Title 42, 16 U.S. Code 405(g) to challenge the adverse determination by the 17 Commissioner of Social Security finding that he was not disabled 18 at the relevant times and therefore ineligible for the benefits 19 that he sought. 20 By way of background, the Court sets forth the 21 following: Plaintiff was born in 1997. He is currently

22 approximately 26 years of age. He was approximately 24 years 23 old on the date of his application for benefits. 24 Plaintiff stands approximately 6'0" in height and 25 weighs approximately 220 pounds. 1 Plaintiff attended regular education classes in high 2 school, and subsequently obtained his GED. Plaintiff has a 3 limited employment history that includes short-term positions, 4 cooking in restaurants and kitchens. Plaintiff testified that 5 he was terminated from his most recent position, as a cook at a 6 country club kitchen, partly due to his inability to meet the

7 job's lifting requirements. 8 Procedurally, in this case, the Court sets forth the 9 following: Plaintiff applied for Title XVI benefits on 10 July 22nd of 2021, alleging an onset date of June 20th of 2021. 11 In his application for benefits, plaintiff claimed 12 disability based on mental health impairments, including 13 posttraumatic stress disorder, also referred to as PTSD, and 14 schizoaffective disorder. During the administrative process, 15 plaintiff also reported chronic left shoulder pain resulting 16 from a 2018 injury. 17 Administrative Law Judge Gretchen Greisler conducted 18 a hearing on May 12, 2022, to address Plaintiff's application 19 for benefits. 20 ALJ Greisler issued an unfavorable decision on 21 May 25th of 2022. That decision became the final determination

22 of the agency on August 17, 2022, when the Appeals Council 23 denied Plaintiff's request for review. 24 This action was commenced on August 30th of 2022 and 25 it is timely. 1 In her May 25th of 2022 decision, ALJ Greisler 2 applied the familiar sequential test for determining disability. 3 At step one, the ALJ concluded that plaintiff had not 4 engaged in substantial gainful activity from his application 5 date of July 22nd of 2021. 6 At step two, ALJ Greisler concluded that plaintiff

7 had the following severe impairments: First, schizoaffective 8 disorder; second, adjustment disorder; third, ADHD; fourth, 9 substance use disorder; and fifth, complex regional pain 10 syndrome of the left upper extremity. 11 At step three, ALJ Greisler concluded that plaintiff 12 did not have an impairment or combination of impairments that 13 met or medically equaled the severity of one of the listed 14 impairments in 20 C.F.R. Section 416.920(c). In making this 15 determination, the ALJ considered the following listings: 16 Listing at 1.18, dealing with Abnormality of Major Joint; 17 Listing 12.02, dealing with Neurocognitive Disorders; and 18 Listing 12.04, which deals with Depressive, Bipolar, and Related 19 Disorders. 20 Next, the ALJ determined that Plaintiff has the 21 residual functional capacity, also referred to as RFC, to

22 perform less than the full range of light work. With regard to 23 physical limitations, the ALJ found Plaintiff can only lift and 24 carry up to 15 pounds; can frequently reach with the dominant 25 left upper extremity, but cannot reach overhead with the 1 dominant left upper extremity; cannot crawl; cannot climb, 2 cannot -- excuse me, let me begin that again -- cannot crawl; 3 cannot climb ladders, ropes, or scaffolds; and cannot work at 4 unprotected heights. With regard to the mental health 5 limitations, the ALJ found that Plaintiff can perform simple 6 tasks at a consistent goal-oriented pace; can engage in

7 occasional interaction with supervisors, coworkers, and the 8 public; can make simple decisions; and can tolerate occasional 9 minor changes in the workplace. 10 At step four, the ALJ relied on the vocational 11 expert, also referred as the VE, testimony to determine that 12 Plaintiff was unable to perform any past relevant work. 13 Again, relying on the vocational expert testimony, 14 the ALJ found that, considering Plaintiff's age, education, work 15 experience, and RFC, that there are jobs that exist in 16 significant numbers in the national economy that he can perform. 17 More specifically, the vocational expert testified that 18 Plaintiff can perform the requirements of representative 19 unskilled light work occupations, such as parking lot or garage 20 cashier, gate attendant, and information clerk. 21 Accordingly, the ALJ found that Plaintiff was not

22 disabled from his application date through the date of his 23 May 25, 2022, decision. 24 I'll now turn to Defendant's arguments and 25 Plaintiff -- Plaintiff's pro sé status. 1 Defendant, the only moving party, argues that the 2 ALJ's sequential analysis and her ultimate determination that 3 Plaintiff was not disabled were supported by substantial 4 evidence. 5 Plaintiff was represented by counsel during the 6 administrative hearing and appeal process, but commenced this

7 proceeding via pro sé. Plaintiff has filed various 8 correspondence and a copy of the Administrative Transcript with 9 the Court, but has not filed a formal brief or other arguments 10 responsive to Defendant's motion, despite being given an 11 opportunity to do so. 12 It is well settled that a Plaintiff bears the burden 13 of establishing disability. In the Northern District of New 14 York, General Order No. 18 notifies parties of the consequences 15 of failing to file a brief in connection with a Social Security 16 action and, "A party's brief may be its only opportunity to set 17 forth arguments that entitle the party to a judgment in its 18 favor. The failure to file a brief by either party may result 19 in the consideration of the record without the benefit of the 20 party's arguments." A copy of General Order No. 18 was provided 21 to Plaintiff on August 30, 2022, see Docket No. 4.

22 "In a case such as this, where Plaintiff is 23 proceeding pro sé, General Order No. 18's promise of a 24 consideration of the merits complies with the special solicitude 25 that the Second Circuit mandates for pro sé litigants." See 1 case of Hubbard v. Commissioner of Social Security. That's 2 found at 6:14-CV-1401. That is a Glenn T. Suddaby case found at 3 2016 WL 551783 at page 4, Northern District of New York, 4 January 14, 2016. As such, even when a Plaintiff declines to 5 file a brief, a Court may, "examine the record to determine 6 whether the ALJ applied the correct legal standard and reached a

7 decision based on substantial evidence." See the case that I 8 just cited, Hubbard v. Commissioner. And in that case, the 9 Hubbard case, cites a case of Gregorka v. Commissioner of Social 10 Security. That's found at 6:13-CV-1408. That's also a Judge 11 Glenn T. Suddaby case. That's found at 2015 WL 3915959 at page 12 4, and that's a Northern District of New York, June 25, 2015, 13 case. Therefore, in deference to Plaintiff's pro sé status, 14 this Court will review each step of the ALJ's sequential 15 evaluation to determine whether it was supported by substantial 16 evidence. 17 That being said, this Court's functional role in this 18 case is limited and extremely deferential. I must determine 19 whether correct legal principles were applied and whether the 20 determination is supported by substantial evidence, which is 21 defined as such relevant evidence as a reasonable mind would

22 find sufficient to support a conclusion. As the Second Circuit 23 noted in Brault v. Social Security Administration Commissioner, 24 that's at 683 F.3d 443, a 2012 case, and, therein, the Second 25 Circuit stated that this standard is demanding, more so than the 1 clearly erroneous standard. The Court noted in Brault that once 2 there's a finding of fact, that fact can be rejected only if a 3 reasonable factfinder would have to conclude otherwise. 4 The Court's going to begin its analysis as follows. 5 With the step two analysis of the ALJ, I'll note the following: 6 In considering Plaintiff's claims for benefits, the ALJ found

7 schizoaffective disorder, adjustment disorder, ADHD, substance 8 abuse disorder, and complex regional pain syndrome of the left 9 upper extremity were severe impairments because they imposed 10 more than a minimal harmful effect on Plaintiff's ability to do 11 basic work activities. The ALJ explained that this 12 determination was based on medical and psychiatric diagnoses in 13 the available treatment record, as well as Plaintiff's 14 description of his symptoms, including physical pain. 15 This Court finds that the ALJ's analysis at step two 16 provides sufficient explanation indicating that she adequately 17 considered the evidence related to Plaintiff's alleged 18 impairments. Therefore, the ALJ had substantial evidence to 19 support her conclusions at step two. 20 In the alternative, the Court finds that any error by 21 the ALJ in step two, such as failing to identify a severe

22 impairment, would be harmless because she found other 23 impairments severe, continued the sequential evaluation, and 24 provided adequate explanation in her decision showing she 25 properly considered the evidence related to Plaintiff's -- 1 Plaintiff's various impairments. Therefore, the ALJ's step two 2 determination does not present any grounds for remand. 3 Next, I'm going to address the step three analysis 4 performed by the ALJ. 5 To meet a listing, Plaintiff must show that his 6 medically determinable impairment satisfied all the specified

7 criteria in a listing. Here, the ALJ considered the available 8 treatment record, as well as Plaintiff's testimony, to conclude 9 that Plaintiff did not have an impairment or combination of 10 impairments that meets or medically equals the severity of any 11 listed impairments. With regard to medical impairments, the ALJ 12 properly considered what are known as the, "paragraph B," and, 13 "paragraph C," criteria and found no more than moderate 14 limitations across each of the respective functional areas. 15 The ALJ's thorough analysis at step three indicates 16 sufficient consideration of Plaintiff's impairments in relation 17 to the listings, and her findings are supported by substantial 18 evidence. Therefore, the ALJ's step three determination does 19 not present any grounds for remand. 20 I'm next turning to the RFC analysis as conducted by 21 the ALJ.

22 RFC is defined as what an individual can still do 23 despite his or her limitations. In other words, RFC is the 24 individual's maximum remaining ability to do sustained work -- 25 excuse me, to do sustained work activities in an ordinary work 1 setting on a regular and continuing basis. 2 Here, Plaintiff's only documented physical impairment 3 was left shoulder pain. In considering the resulting 4 limitations, the ALJ relied upon November and December 2021 5 physical therapy notes showing Plaintiff had normal range of 6 motion in his left shoulder, and a, "four out of five," muscle

7 strength with normal movement in the left arm. The ALJ also 8 considered Plaintiff's testimony that he continued to experience 9 shoulder pain and had been unable to meet the 25-pound lifting 10 requirements at his former job. 11 There was no medical opinion in the record addressing 12 Plaintiff's physical impairments. An ALJ may make a common 13 sense judgment about a claimant's physical RFC if the medical 14 evidence reveals minor physical impairments or minimal 15 treatment. Here, the ALJ limited Plaintiff to light work that 16 required lifting or carrying no more than 15 pounds, along with 17 certain reaching and postural limitations based upon the 18 documented conservative treatment approach, while giving the 19 Plaintiff the, "benefit of the doubt," regarding his testimony 20 about his lifting restrictions and continued shoulder pain. 21 The ALJ considered three mental health opinions as

22 part her RFC evaluation. Two non-examining state agency 23 consultants, that being Dr. Hoffman and Dr. Sherer, separately 24 reviewed Plaintiff's available psychiatric records and concluded 25 that he had no severe mental health impairments. The ALJ 1 properly considered the supportability and consistency of these 2 opinions and found them unpersuasive in light of Plaintiff's 3 mental health treatment history that includes psychiatric 4 medication and outpatient therapy, as well as Plaintiff's own 5 description of his mental health symptoms. 6 The other mental health opinion in the record came

7 from treating psychiatrist Dr. Joshua Frank, who had seen 8 Plaintiff every one to two months since September of 2020. Dr. 9 Frank authored a very restrictive opinion dated August 1, 2022, 10 indicating that Plaintiff had, "no useful ability to function," 11 in almost every area listed on his evaluation form. This 12 included an inability to remember work-like procedures, maintain 13 attention and concentration, or work in coordination with or in 14 proximity to others. 15 The ALJ appropriately evaluated the supportability 16 and consistency of Dr. Frank's opinion and found it 17 unpersuasive. The opinion itself does not provide significant 18 narrative or reference relative treatment notes. The ALJ found 19 that wholly inconsistent with Plaintiff's mental health history, 20 including Dr. Frank's own treatment notes, that documented 21 consistent improvement in his psychiatric symptoms after

22 Plaintiff began medication and therapy. The ALJ cited multiple 23 treatment notes describing a stable mood, logical thought 24 processes, and an absence of delusions. Although Plaintiff 25 testified that he experienced, "hallucinations," lasting up to 1 half an hour, the ALJ noted that Plaintiff used the term, 2 "hallucinations," with his therapist to describe, "a 3 hyperfixation on events that he thinks should happen a certain 4 way or within a certain time and then becoming agitated when 5 they do not work out as planned." See transcript at page -- 6 pages 16 and page 365. The ALJ also noted that none of his

7 treatment providers noted any actual delusions or 8 hallucinations, and Plaintiff denied seeing or hearing things 9 that were not there. See transcript at pages 16, 254, 318, 349, 10 365, 391, 407, 423, 445, 463, 472, and 488. The ALJ also noted 11 that Plaintiff had discontinued therapy in February 2022 with 12 his counselor's approval. 13 There's no requirement that the ALJ's RFC 14 determination mirror a particular medical opinion. Rather, it 15 is the ALJ's responsibility to choose between properly submitted 16 medical opinions and other competent evidence to piece together 17 an overall RFC assessment. Here, the ALJ relied upon multiple 18 consistent mental health evaluations, along with Plaintiff's own 19 assessment of his mental health, while rejecting medical 20 opinions that lacked support in the broader record. 21 In this case, Plaintiff testified that he felt

22 overwhelmed in crowds, had difficulty maintaining concentration, 23 and experienced episodes of depression and anxiety. Although 24 the ALJ found some of this testimony inconsistent with the 25 documented improvement reflected in Plaintiff's treatment notes, 1 her RFC determination limited Plaintiff to unskilled work and 2 incorporated limitations on work pace, social interaction, and 3 workplace changes. "The fact that the ALJ afforded Plaintiff 4 the benefit of the doubt," and included additional functional 5 limitations in the RFC is not grounds for remand. See case 6 Lesanti v. Commissioner of Social Security. That's found at 436

7 F. Supp. 3d 639 at page 649, and that's a Western District of 8 New York 2020 case. 9 Where an ALJ relies on Plaintiff's own testimony 10 about his functional abilities, there is a reduced concern that 11 the ALJ impermissibly, "played doctor," to determine Plaintiff's 12 functional limitations. Because the ALJ's physical and mental 13 RFC determinations are supported by the available record and 14 those portions of Plaintiff's testimony that the ALJ reasonably 15 deemed to be most reliable, this Court finds that it was 16 supported by substantial evidence. Therefore, the ALJ's RFC 17 determination does not present any grounds for remand. 18 I will next discuss the step five process by the ALJ. 19 If the ALJ utilizes a vocational expert at the 20 hearing, the VE is generally questioned using a hypothetical 21 question incorporating Plaintiff's limitations. The ALJ may

22 rely on a vocational expert's testimony regarding the 23 availability of work as long as the hypothetical facts the 24 expert is asked to consider are based on substantial evidence 25 and accurately reflect Plaintiff's limitations. 1 Because this Court has found the ALJ's RFC 2 determination was supported by substantial evidence, it also 3 finds the ALJ's matching hypothetical to the vocational expert 4 was proper. The ALJ also properly questioned the vocational 5 expert regarding the basis for her opinion and sought 6 explanation where her opinion relied on her professional

7 expertise rather than the standard definitions in the Dictionary 8 of Occupational Titles. 9 During her testimony, the vocational expert 10 identified a number of representative light and sedentary 11 occupations that an individual with Plaintiff's RFC could 12 perform. This testimony provided substantial evidence for the 13 ALJ to determine that there were jobs existing in significant 14 numbers in the national economy that Plaintiff could perform. 15 Therefore, the ALJ's step five determination does not present 16 any grounds for remand. 17 Based on the foregoing, the ALJ's decision was based 18 upon correct legal standards, and substantial evidence supports 19 her ultimate determination that Plaintiff was not under a 20 disability through the date of her decision. 21 As a result, Defendant's motion for judgment on the

22 pleadings is granted, Plaintiff's complaint is dismissed, and 23 the Commissioner's decision denying Plaintiff benefits is 24 affirmed. 25 This constitutes the decision analysis of this Court 1 and I will transcribe and then append the transcript to a 2 written order and file that on the docket, which will be 3 provided to both parties. 4 That concludes our hearing for today. I hope 5 everybody has a good rest of the afternoon and court stands 6 adjourned. Thank you, all.

7 (Time noted: 1:33 p.m.) 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22

23 24 25 1 2 3 4 CERTIFICATE OF OFFICIAL REPORTER 5 6

7 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 8 NYRCR, Official U.S. Court Reporter, in and for the United 9 States District Court for the Northern District of New York, DO 10 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 11 States Code, that the foregoing is a true and correct transcript 12 of the stenographically reported proceedings held in the 13 above-entitled matter and that the transcript page format is in 14 conformance with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 15th day of February, 2024. 18 19 s/ Hannah F. Cavanaugh______________________ 20 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 21 Official U.S. Court Reporter 22

23 24 25 (T. 60.) Her date last insured is June 30, 2015. Ud.) She 2016 WL 551783 previously worked as a customer service representative, Only the Westlaw citation is currently available. medical records scanner, processor, waitress, and child care United States District Court, N.D. New York. provider. (T. 109.) Kim HUBBARD, Plaintiff, v. B. Procedural History On February 25, 2012, Plaintiff applied for a period of COMMISSIONER OF SOCIAL SECURITY, Defendant. Disability Insurance Benefits (“SSD”) under Title II of 6:14-CV-1401 (GTS/WBC) the Social Security Act. (T. 60.) Plaintiff's application was | initially denied, after which she timely requested a hearing Signed 01/14/2016 before an Administrative Law Judge (“the ALJ’). On March 11, 2013, Plaintiff appeared, pro se, before the ALJ, David Attorneys and Law Firms J. Begley. (T. 25-59.) The ALJ advised Plaintiff of her right to be counseled by an attorney or representative, but KIM HUBBARD, PRO SE, 270 Day Ave., Rome, NY 13440. _ plaintiff waived that right. (T. 28-29.) On June 5, 2013, ALJ DANIEL R. JANES, ESQ., U.S. SOCIAL SECURITY Begley issued a written decision finding Plaintiff not disabled : > under the Social Security Act. (T. 7-24.) On September 22, ADMIN., OFFICE OF REG'L GEN. COUNSEL — REGION 2014, the Appeals Council (“AC”) denied Plaintiff's request II, Counsel for Defendant, 26 Federal Plaza — Room 3904, . . □ New York. NY 10278. for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff, again appearing pro se, timely sought judicial review in this Court. On November 19, 2014, the Court issued Plaintiff a copy REPORT and RECOMMENDATION of this Court's General Order 18, governing the procedural William B. Mitchell Carter, U.S. Magistrate Judge tules with respect to Social Security appeals. (Dkt. No. 3.) At that time the Court also issued Plaintiff a copy of the Pro Se *] This matter was referred for report and recommendation □ Handbook and Notice. (Dkt. No. 4.) by the Honorable Judge Suddaby, Chief United States District Pa Pursuant to General Order 18, plaintiffs are notified that “the Judge, pursuant to 28 USC. § 636(b) and Local Rule failure to file a brief as required by this order will result in the (Dkt. No. 19.) This case has proceeded in accordance consideration of this appeal without the benefit of plaintiff's with General Order 18. arguments and may result in a decision heavily influenced by the commissioner's version of the facts and subsequent Currently before the Court, m this Social Security action dismissal of your appeal.” N.D.N.Y. General Order 18 at 4. filed by Kim Hubbard (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) □□ aintiff failed to file a brief by the April 27, 2015 deadline pursuant to Pay U.S.C. §§ 405(g) and □□□ 383(0)(3), is and because of her pro se status, the Court granted an Defendant's unopposed motion for judgment on the pleadings. extension to June 1, 2015. (Dkt. No. 14.) Plaintiff failed to file (Dkt. No. 17.) For the reasons set forth below, it is a brief by June 1, 2015 and the Court directed Defendant to recommended that Defendant's motion be granted. file her brief. (Dkt. No. 15.) As of the date of this report and recommendation, Plaintiff has not filed a brief. I, RELEVANT BACKGROUND C. The ALJ's Decision A. Factual Background *2 Generally, in his decision, the ALJ made the following Plaintiff was born on July 20, 1982. (T. 88.) She completed five findings of fact and conclusions of law. (T. 12-24.) four years of college. (T. 109.) Generally, Plaintiff's alleged First, the ALJ found that Plaintiff met the insured status disability consists of diabetes, attention deficit hyperactivity requirements through June 30, 2015 and Plaintiff had not disorder (“ADHD”), back impatrments, and anxiety. (T. 108.) engaged in substantial gainful activity since September 22, Her alleged disability onset date is September 22, 2010. 9910. (T. 12.) Second, the ALJ found that Plaintiff had the

severe impairments of diabetes mellitus, hyperthyroidism, A court reviewing a denial of disability benefits may degenerative disc disease of the lumbar and cervical spine, not determine de novo whether an individual is disabled. left wrist tendinitis, left wrist carpal tunnel syndrome (status See Pa 42 USC. §§ 405(g), Fa 1393 (c)(3); Pa □□□□□□ post release), right wrist capsulitis, panic: disorder, and Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d ADHD. (id.) Third, the ALJ found that Plaintiff did not have Cir.1990). Rather, the Commissioner's determination will an impairment that meets or medically equals one of the . : only be reversed if the correct legal standards were not listed impairments located in 20 C.F.R. Part 404, Subpart P, . . . . : applied, or it was not supported by substantial evidence. Appendix. 1. (T. 12-13.) Fourth, the ALJ found that Plaintiff had the residual functional capacity (“RFC”) to perform light See Pohnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) work, except Plaintiff: (“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 [could] not climb ladders, ropes, or an unacceptable risk that a claimant will be deprived of the scaffolds: could occasionally climb right to have her disability determination made according to ramps/stairs, balance, stoop, kneel, the correct legal principles.”); Grey v. Heckler, 721 F.2d 41, crouch or crawl; work [was] limited 46 (2d Cir.1983); PE varcus v. Califano, 615 F.2d 23, 27 (2d to simple, routine, and repetitive Cir.1979), tasks, involving only simple, work- related decisions, with few, if *3 “Substantial evidence” is evidence that amounts to any, work-place changes, and only “more than a mere scintilla,’ and has been defined as occasional interaction with coworkers “such relevant evidence as a reasonable mind might accept en withthe several pubic. as adequate to support a conclusion.” □□ Richardson Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must 13-14.) Fifth, the ALJ determined that Plaintiff was be upheld. See PS utherford Schweiker 685 F.2d 60, 62 incapable of performing her past relevant work; however, . . (2d Cir.1982). there were jobs that existed in significant numbers in the national economy Plaintiff could perform. (T. 20-21.) “To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court IL. DEFENDANT'S BRIEFING ON HER MOTION considers the whole record, examining evidence from both FOR JUDGMENT ON THE PLEADINGS sides, because an analysis of the substantiality of the evidence In support of her motion for judgment on the pleadings, | ™ust also include that which detracts from its weight.” Defendant makes four arguments. First, Defendant argues PS yittiams y. Bowen, 859 F.2d 255, 258 (2d Cir. □□□□□□ Plaintiff knowingly and voluntarily waiver her right to representation. (Dkt. No. 17 at 11-12 [Def.'s Mem. of If supported by substantial evidence, the Commissioner's Law].) Second, Defendant argues the ALJ's RFC finding finding must be sustained “even where substantial evidence was supported by substantial evidence. (/d. at 12-14.) Third, may support the plaintiff's position and despite that the court's Defendant argues the ALJ's step five finding was supported independent analysis of the evidence may differ from the by substantial evidence. (/d. at 14.) Fourth, and lastly, — [Commissioner's].” Rosado Sullivan, 805 F.Supp. 147, Defendant argues Plaintiff failed to meet her burden. Ud. at 153 (§.D.N.Y.1992). In other words, this Court must afford 14-15.) the Commissioner's determination considerable deference, and may not substitute “its own judgment for that of the [Commissioner], even if it might justifiably have reached a II. RELEVANT LEGAL STANDARD different result upon a de novo review.” Fa Valente v. Sec'y of A. Standard of Review Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).

[Commissioner] must prove the final A. Standard to Determine Disability one. The Commissioner has established a five-step evaluation process to determine whether an individual is disabled as defined by the Social Security Act. See Plog CFR. § PE gerry v: Schweiker, 675 F.2d 464, 467 (2d Cir.1982) 404.1520. The Supreme Court has recognized the validity of ° ; this sequential evaluation process. See Palzowen v. Yuckert, 482 U.S. 137, 140-42, 107 S.Ct. 2287 (1987). The five-step _1V. ANALYSIS process is as follows: In acivil case, the Court may dismiss an action where, as here, “the plaintiff fails to prosecute or to comply with [the Federal Rules of Civil Procedure] or a court order....” Fed.R.Civ.P. First, the [Commissioner] considers 41(b); Storey v. O'Brien, No. 10-3303, 2012 WL 1889408, whether the claimant is currently at *1 (2d Cir. May 25, 2012). Further, other districts in the engaged in substantial gainful activity. Second Circuit have dismissed Social Security appeals, sua If he is not, the [Commissioner] sponte, due to a pro se plaintiff's failure to prosecute. See next considers whether the claimant PE Gonzalez v. Commissioner of Social Security, No. 09-CV— has a “severe impairment” which 10179, 2011 WL 2207574, at *2 (S.D.N.Y. June 2, 2011), see significantly limits his physical or also PS vinegard v. Barnhart, No. 02-—CV—6231, 2006 WL mental ability to do basic work 1455479, at *9-10 (WD... Apr. 5, 2006). However, the activities. If the claimant suffers Court declines to do so in this case. such an impairment, the third inquity is whether, based solely on *4 In this District, General Order No. 18 mandates a medical evidence, the claimant has different course in Social Security cases. General Order 18 an impairment which is listed m cautions plaintiffs that “Plaintiff's brief is the only opportunity Appendix | of the regulations. if for Plamtiff to set forth the errors Plaintiff contends were the claimant has such an Impairment, made by the Commissioner of Social Security that entitle the [Commissioner] will consider Plaintiff to relief. The failure to file a brief as required by him disabled without considering this Order will result in the consideration of this appeal vocational factors such as age, without the benefit of Plaintiff's arguments and may result ina education, and work experience, decision heavily influenced by the Commissioner's version of the [Commissioner] Presumes that the facts and subsequent dismissal of your appeal.” N.D.N-Y. a claimant who is afflicted with General Order No. 18 at 4. General Order 18 thus states a “listed” Impairment 3s unable to that the Court will “consider” the case notwithstanding a perform substantial gainful activity. plaintiffs failure to file a brief, albeit in a way that might Assuming the claimant does not have be “heavily influenced by the Commissioner's version of the a listed Impairment, the fourth mquiry facts.” Id. In a case such as this, where Plaintiff is proceeding whether, despite the claimant's pro se, General Order No. 18's promise of a consideration severe impairment, he has the residual of the merits complies with the special solicitude that the functional capacity to perform his Second Circuit mandates for pro se litigants. Accordingly, the past work. Finally, if the claimant Court has, despite Plaintiff's failure to file a brief, examined is unable to perform his past work, the record to determine whether the ALJ applied the correct the [Commissioner] then determines legal standards and reached a decision based on substantial whether there is other work which evidence. See Gregorka v. Comm'r of Soc. Sec., No. 6:13- the claimant could perform. Under CV-1408, 2015 WL 3915959, at *4 (N.D.N.Y. June 25, the cases previously discussed, the 2015). claimant bears the burden of the proof as to the first four steps, while the After a careful review of the administrative record on appeal, the Court recommends the Commissioner's determination be

affirmed, for the reasons stated in Defendant's memorandum average. (/d.) In a medical source statement, Dr. Noia opined of law, that (1) the Plaintiff knowingly and voluntarily — Plaintiff was capable of understanding and following simple waived her right to representation, (2) the ALJ's RFC finding instructions and directions; capable of performing simple was supported by substantial evidence, (3) the ALJ's step and some complex tasks; capable of maintaining attention five finding was supported by substantial evidence, and (4) and concentration; could regularly attend to a routing and Plaintiff failed to meet her burden. (Dkt. No. 17 at 11-15 maintain a schedule; capable of making appropriate decisions; [Def.'s Mem. of Law].) able to relate to and interact moderately well with others; and Plaintiff had some difficulty dealing with stress. (T. 206- A. Plaintiff Knowingly and Voluntarily Waived Her 207.) Right to Representation *5 Dr. Tabb performed a physical consultative exam on Although plaintiffs do not have a constitutional right to aa, . counsel at a Social Security hearings, they do have a statutory April 30, 2012 - At that time she observed Plaintif? appeared and regulatory right to be represented if they chose to obtain in no acute distress, had a normal gait, could walk on heels and toes, needed no help changing for exam or getting on and counsel. Pay U.S.C. § 406; F229 C.ER. § 404.1705. Here, off the exam table, and was able to rise from a chair without the Commissioner sent Plaintiff an acknowledgement letter difficulty. (T. 209.) Dr. Tabb observed Plaintiff's cervical explaining the hearing process and advising her of her right —_ spine and lumbar spine showed full flexion, extension, later to representation, as well as the availability of free legal _ flexion bilaterally and full rotary movement bilaterally. (T. services. (T. 77-78.) At the hearing, the ALJ again reviewed □□ 210.) Dr. Tabb observed Plaintiff had full range of motion in with Plaintiff her right to have representation and Plaintiff her shoulders, elbows, forearms, and wrists bilaterally. □□□□□ knowingly waived that right. (T. 28-30.) Therefore, the Dr. Tabb observed Plaintiff had mild tenderness in the medial Commissioner and ALJ complied with their obligations to aspect of her left wrist. (Id.) In a medical source statement inform Plaintiff of her right to counsel and Plaintiffknowingly — Dr. Tabb opined Plaintiff had mild restrictions for performing and voluntarily waived her right. activities involving repetitive movement of the left wrist. (T. 211.)° B. The ALJ's RFC Determination oo A plaintiffs RFC is the most she can do despite her In making his physical RFC determination, the ALJ also limitations. 20 CER. § 404.1545(a). Here, the ALJ's "lied om objective medical imagining from March of RFC determination was supported by substantial evidence, 2012 which indicated “very minimal” degenerative change specifically, the medical source opinions of consultative and “mild” disc space narrowing in the mid thoracic examiners Dennis Noia, M.D. and Pamela Tabb, M.D. spine. (I. 200.) Medical imaging from March of 2012 indicated degenerative disc disease with “mild” multilevel An ALJ “is entitled to rely upon the opinions of bulging in the lumbar spine. (T. 201.) Medical imaging of both examining and non-examining State agency medical Plaintiff's cervical spine revealed “mild” dise desiccation with consultants,” particularly where the consultant's opinion is “minimal” disc bulging at multiple levels. supported by the weight of the evidence. Garrison vy. Comm'r of Soc. Sec., No. 0&-CV-1005, 2010 WL 2776978 at *4 The ALJ thoroughly discussed all the medical evidence in the June 7, 2010). record and his RFC determination was supported primarily by the consultative examiners, Drs. Noia and Tabb. In addition Dr. Noia performed a psychiatric consultative exam on to Dr. Tabb's opinion, the ALJ's physical RFC determination April 30, 2012. At that time he observed Plaintiff was was supported by Plaintiff's treating physicians who reported cooperative and her manner of relating, social skills, and Plaintiff had normal gait and stance, appeared m no acute overall presentation were adequate. (T. 205.) He further distress, ambulated well, and had negative straight leg raises. observed her speech was normal, her thought process was (I. 182-185, 192-197.) normal, her mood was calm, and her affect was congruent. (T. 206.) Dr. Noia observed Plaintiff's attention and concentration Plaintiff's orthopedic surgeon, Gregory Shankman, M.D., were intact, her recent and remote memory skills were “mildly completed a medical source statement m August of 2007, to moderately” impaired; and her intellectual functioning was which the ALJ discussed m his opmnon but ultimately rejected. Dr. Shankman opined Plaintiff's pain was “too

severe for her to work” and she was “totally and permanently capacity to work. Because an disabled.” (T. 161.) Dr. Shankman further opined Plaintiff individual's symptoms can sometimes could not walk for more than five minutes without pain, could suggest a greater level of severity not sit for more than five minutes without severe pain, and of impairment than can be shown could not sleep for more than a few hours without pain. by the objective medical evidence He opined Plaintiff could not lift or carry more than alone, an ALJ will consider the ten pounds. (/d.) The ALJ properly assigned Dr. Shankman's following factors in assessing a opinion “limited weight” because there were no records to claimant's credibility: (1) claimant's support his opinion, Plaintiff's own allegations of limitations daily activities; (2) location, duration, were not as restrictive as Dr. Shankman's, and the opinion frequency, and intensity of claimant's predated Plaintiff's alleged onset date by over three years. symptoms; (3) precipitating and Therefore, for the reasons stated herein, and for the reasons aggravating factors; (4) type, dosage, provided in Defendant's brief, the ALJ's RFC determination effectiveness, and side effects of any was supported by substantial evidence. medication taken to relieve symptoms; (5) other treatment received to relieve symptoms; (6) any measures taken C. The ALJ's Credibility Determination by the claimant to relieve symptoms: A plaintiff's allegations of pain and functional limitations are and (7) any other factors concerning “entitled to great weight where ... it is supported by objective claimant's functional limitations and medical evidence.” P@ Rockwood v. Astrue, 614 F.Supp.2d restrictions due to symptoms. 252, 270 (N.D.N.Y.2009) (quoting Simmons vy. U.S. RR. Ret. Bd., 982 F.2d 49, 56 (2d Cir.1992)). However, the ALJ “is not required to accept [a plaintiffs] subjective complaints /d., see 20 C.F.R. § 416.929(c)(3)(i)-(vii). Further, “[i]t is without question; he may exercise discretion in weighing the the role of the Commissioner, not the reviewing court, “to credibility of the [plaintiff's] testimony in light of the other resolve evidentiary conflicts and to appraise the credibility evidence in the record.” PGenier v. Astrue, 606 F3d 46, 0 Witnesses,” including with respect to the severity of a claimant's symptoms.” Cichocki v. Astrue, 534 F. App'x 71, 75 49 (2d Cir.2010) (citing Pa vtarcus v. Califano, 615 F.2d 23, □ Pa , 27 (2d Cir.1979)). “When rejecting subjective complaints, (2d Cir.2013) (citing Carroll v Secy of Health & Human an ALJ must do so explicitly and with sufficient specificity Servs., 705 F.2d 638, 642 (2d Cir. 1983). to enable the Court to decide whether there are legitimate Here, the ALJ properly applied the Regulations in his reasons for the ALJ's disbelief.” Rockwood, 614 F.Supp.2d credibility analysis. The ALJ determined that Plaintiff's at 270. medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, Plaintiff's *6 “The ALJ's credibility assessment must be based on _gtatements concerning the intensity, persistence, and limiting a two step analysis of pertinent evidence in the record. effects of these symptoms were not entirely credible. (T. First, the ALJ must determine whether the claimant has 15.) The ALJ provided an accurate synopsis of Plaintiff's medically determinable impairments, which could reasonably testimony. (T. Id.) The ALJ discussed objective medical be expected to produce the pain or other symptoms alleged.” gyidence and opinion evidence which he found to be Pa at 271. inconsistent with Plaintiff's statements. (T. 15-18.) The ALJ discussed Plaintiff's activities of daily living, treatment she received for her impairments including medication, and Second, if medically determinable aggravating factors. (T. 15.) Therefore, for the reasons stated . . herein, the ALJ properly adhered to the Regulations in impairments are shown, then the : ° ALJ must. evaluate the intensit making his credibility determination and substantial evidence Ys ca: _ persistence, and limiting effects of supports the ALJ's credibility determination. the symptoms to determine the extent to which they limit the claimant's D. The ALJ's Step Five Determination

At step five of the sequential process, the ALJ considered *7 RECOMMENDED, that the Commissioner's decision Plaintiff's age, education, and RFC, to determine whether be AFFIRMED, and the Plaintiff's complaint DISMISSED. there were a significant number of jobs in the national economy which Plaintiff could perform. 20 CFR. § Pursuant to Fal59 U.S.C. § 636(b)(1) and Local Rule 404.1569. In making his determination, the ALJ relied on —-72.1(c), the parties have FOURTEEN (14) DAYS within the testimony of a vocational expert (“VE”). (T. 5658.) At — which to file written objections to the foregoing report. the hearing the VE testified that based on a hypothetical = Any objections shall be filed with the Clerk of the Court. individual with Plaintiff's age, education, and RFC, there FAILURE TO OBJECT TO THIS REPORT WITHIN were jobs that existed in significant numbers in the national FOURTEEN DAYS WILL PRECLUDE APPELLATE economy which she could perform. (T. 56-57.) Because we REVIEW. a Roldan v. Racette, 984 F.2d 85, 89 (2d find no error in the ALJ's RFC assessment, we likewise conclude that the ALJ did not err in posing a hypothetical —- Cir.1993) (citing Pl small y. Secretary of Health and Human question to the vocational expert that was based on that Services, 892 F.2d 15 (2d Cir.1989)): US.C. § 636(b) assessment. See Dumas v Schweiker, 712 F.2d 1545, (1); Fed.R.Civ.P. 6(a), 6(e), 72. 1553-54 (2d Cir.1983) (approving a hypothetical question to a vocational expert that was based on substantial evidence in the record). ACCORDINGLY, based on the findings above, All Citations 1s Not Reported in Fed. Supp., 2016 WL 551783

Footnotes

1 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, you must have the ability to do substantially all of these activities. If someone can do light work, we determine 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. § 404.1567(b). 2 Plaintiff did not undergo mental health treatment. In November of 2011, during an evaluation by her orthopedic provider, Plaintiff denied depression and anxiety. (T. 183.) In December of 2011, Plaintiff complained to her primary care provider of “slight depression.” (T. 177.) A prescription history indicated Plaintiff was prescribed Alprazolam for her anxiety by Scott Brehaut, M.D. (T. 167.) 3 In June of 20120, subsequent to Plaintiff's examination by Dr. Tabb, she underwent CTS release surgery. (T. 255.)

End of Document © 2024 Thomson Reuters. No claim to original U.S. Government Works.

2015 WL 3915959 ORDERED that the Commissioner's decision is Only the Westlaw citation is currently available. AFFIRMED with regard to the denial of SSI benefits but United States District Court, RE VERSED with regard to the denial of DIB benefits; and N.D. New York. itis further Leo GREGORKA; and Eve Gregorka, Plaintiffs, ORDERED that this matter is REMANDED to the V. Commissioner for further proceedings pursuant to sentence COMMISSIONER OF SOCIAL SECURITY, Defendant. four of alae U.S.C. § 405(g). No. 6:13-CV—1408 (GTS/TWD). Signed June 25, 2015. REPORT AND RECOMMENDATION Attorneys and Law Firms THERESE WILEY DANCKS, United States Magistrate Judge. Leo Gregorka and Eve Gregorka, Little Falls, NY, pro se. This matter was referred to the undersigned for report and Hon. Richard S. Hartunian, United States Attorney for the recommendation by the Honorable Glenn T. Suddaby, United Northern District of New York, Albany, NY, Office of G I title ° “Ww er any, 7 reco □ ener States District Judge, pursuant to Fa59 U.S.C. § 636(b) Counsel, Social Security Administration, Emily M. Fishman, □ Esq. of Counsel. New York. NY. for Defendant and Northern District of New York Local Rule 72.3. This ° a case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Oral DECISION and ORDER argument was not heard. For the reasons discussed below, GLENN T, SUDDABY, District Judge. it is recommended that the Court affirm the Commissioner S finding that Plaintiffs are not entitled to supplemental security *1 The above matter comes to this Court following income (“SSI”) benefits but remand the disability insurance a Report-Recommendation by United States Magistrate benefits (“DIB”) claim to the Commissioner for further Judge Thérése Wiley Dancks, filed on May 28, 2015, proceedings. recommending that the Commissioner's decision denying benefits be affirmed with regard to Social Security income . oa I. BACKGROUND AND PROCEDURAL HISTORY benefits (“SSI”) but reversed with regard to disability On I 9. 2011. Th Leo G ka (MG ka” insurance benefits (“DIB”). (Dkt. No. 14.) No objections to “ted ° i 7 hee SS. "DB i Ne □□□ ) the Report-Recommendation have been filed and the time in The ications or d ed 3 □□□□ which to do so has expired. After carefully reviewing all of the ho ana nD M Gre fed , or □ □ papers herein, including Magistrate Judge Dancks' thorough ” anuaty 1” regorxa filed’ a request for a . . hearing before an Administrative Law Judge (“ALJ”). Jd. Mr. Report-Recommendation, the Court can find no error in the : : . . Gregorka died on April 1, 2012. Jd. Mr. Gregorka was fifty- Report-Recommendation, clear or otherwise. As a result, oh Id when he died. Id at 30 the Report-Recommendation is accepted and adopted in its cignt years old when he died. Za. at 30. entirety; and the case is remanded to the Commissioner of Plaintiffs L dEveG ka. th □□ k Social Security for further proceedings pursuant to sentence auntills co and ve Gregorxa, the parents ° regon a, filed a substitution of party to proceed with the hearing four of F142 U.S.C. § 405(g). requested by their son. (Dkt. No. 15—2 at 21.) They did not, however, wish to appear at the hearing in person. /d. Thus, the ACCORDINGLY, it is ALJ based his decision on the record alone. Id. ORDERED that Magistrate Judge Dancks' Report— *2 On June 19, 2012, the ALJ issued a decision finding that Recommendation (Dkt. No. 20) is ACCEPTED and Mr, Gregorka was not disabled. (Dkt. No. 15-2 at 21-31.) ADOPTED in its entirety; and it is further Plaintiffs filed a request for review by the Appeals Council

(Dkt. No. 15—2 at 16) and submitted additional evidence (Dkt. sequential evaluation process to determine disability. 20 No. 15-2 at 5). On September 5, 2013, the Appeals Council CER. § 416.920(a)(4) (2015). Under that five-step sequential issued separate decisions on Mr. Gregorka's SSI claim and his evaluation process, the decision-maker determines: DIB claim. (Dkt. No. 15—2 at 1-4, 8 .) The Appeals Council dismissed the request for review of the SSI claim, finding that Plaintiffs were not proper parties pursuant to Social Security (1) whether the claimant is currently regulations. (Dkt. No. 15-2 at 8.) The Appeals Council denied engaged in substantial gainful activity; the request for review of the DIB claim, finding that there was (2) whether the claimant has a no basis for changing the ALJ's decision. (Dkt. No. 15-2 at severe impairment or combination 2,3.) of impairments; (3) whether the impairment meets or equals the Plaintiffs commenced this action on November 12, 2013. severity of the specified impairments (Dkt. No. 1.) in the Listing of Impairments; (4) based on a “residual functional capacity” assessment, whether the Il, APPLICABLE LAW . . claimant can perform any of his or A. Standard for Benefits her past relevant work despite the To be considered disabled, a claimant seeking disability impairment; and (5) whether there are insurance benefits or SSI disability benefits must establish significant numbers of jobs in the that he or she is “unable to engage in any substantial gainful national economy that the claimant can activity by reason of any medically determinable physical perform given the claimant's residual or mental impairment which can be expected to result in functional capacity, age, education, death or which has lasted or can be expected to last for a and work experience. continuous period of not less than twelve months.” Pas. USS.C. § 1382¢(a)(3)(A) (2006). In addition, the claimant's Plvcintyre vy. Colvin, 758 F.3d 146, 150 (2d Cir.2014.) “Tf at any step a finding of disability or non-disability can be made, physical or mental impairment or the SSA will not review the claim further.” FP" Barnhart v: impairments [must be] of such severity Thomas, 540 U.S. 20, 24, 124 S.Ct. 376, 157 L.-Ed.2d 333 that he is not only unable to (2003). do his previous work but cannot, considering his age, education, and *3 The claimant bears the burden of proof regarding the work experience, engage in any other first £ Pax Al Ast 546 F3d 260. 265 Od kind of substantial gainful work tst four steps. OEE YAS TIS ‘ □ ( which exists in the national economy, Cir.2008) (quoting pere: v. Chater, 77 F.3d 41, 46 (2d regardless of whether such work exists Cir.1996)). If the claimant meets his or her burden of proof, in the immediate area in which he the burden shifts to the Commissioner at the fifth step to prove lives, or whether a specific job vacancy that the claimant is capable of working. Id. exists for him, or whether he would be hired if he applied for work. B. Scope of Review In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards Pa, 1382c(a)(3)(B). were applied and whether substantial evidence supports the decision. Featherly v. Astrue, 793 F.Supp.2d 627, 630 Acting pursuant to its statutory rulemaking authority = (W.D.N.Y.2011) (citations omitted); Rosado yv. Sullivan, US.C. § 405(a)), the Social Security Administration —__ 805 F.Supp. 147, 153 (S.D.N.Y.1992) (citing johnson v (“SSA”) promulgated regulations establishing a five-step — Bowen, 817 F.2d 983, 985 (2d Cir.1987)). A reviewing court

may not affirm an ALJ's decision if it reasonably doubts residuals from chronic alcohol abuse, including seizures, whether the proper legal standards were applied, even if the near syncope, and tremor. Jd. at 23-24. The ALJ found that decision appears to be supported by substantial evidence. Mr. Gregorka did not have any severe mental impairment, Pa Johnson, 817 F.2d at 986. granting “ereat weight” to the medical opinion of a non- examining agency medical consultant and “little weight” to A court's factual review of the Commissioner's final decision the opinion of consultative psychologist Dennis Noia, Ph .D. is limited to the determination of whether there is substantial Id. at 25. At step three, the ALJ found that none of Mr. Gregorka's impairments met or medically equaled a listed evidence in the record to support the decision. Pay. USC. impairment. Jd. at 25-26. At step four, the ALJ found that Mr. § 405(g) (2012): Pa Rivera y. Sullivan, 923 F.2d 964, 967 Gregorka had the RFC to perform medium work, except that (2d Cir.1991), An ALJ must set forth the crucial factors he needed to avoid climbing ladders or scaffolds and should justifying his findings with sufficient specificity to allow avoid working at heights or around dangerous machinery. □□□ a court to determine whether substantial evidence supports 2t 26. Based on that RFC, the ALJ found that Mr. Gregorka the decision. Roat v. Barnhart, 717 F.Supp.2d 241, 248 was not able to perform any past relevant work. Jd. at 29. At 1 fa step five, however, the ALJ found that Mr. Gregorka could (N.D.N.Y.2010); Ferraris v. Heckler, 728 F.2d 582,587 yerform jobs that exist in significant numbers in the national (2d Cir.1984). “Substantial evidence has been defined as economy. Id. at 30. Accordingly, the ALJ found that Mr. ‘such relevant evidence as a reasonable mind might accept Gregorka was not disabled. Id. at 30-31. as adequate to support a conclusion.’ “ PS vittiams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir.1988) . ce os IV. PLAINTIFFS' FAILURE TO FILE A BRIEF (citations omitted). It must be “more than a mere scintilla 4 This Court's General Order 18 sets forth the briefin of evidence scattered throughout the administrative record. : schedule in Social Security cases. After Plaintiffs failed to Featherly, 793 F.Supp.2d at 630; P8kichar dson v. Perales, comply with General Order 18, the undersigned issued an 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) order of June 9, 2014, which directed Plaintiffs to file their (quoting Pl consol. Edison Co. v. NLRB, 305 US. 197, brief within forty-five days after service of Defendant's brief. 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)). “To determine on (Dkt. No. 17.) Despite this, Plaintiffs filed neither papers appeal whether an ALJ's findings are supported by substantial opposing Defendant's motion nor a request to enlarge the time evidence, a reviewing court considers the whole record, Within which to oppose Defendant's motion. examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that ‘In the usual civil case, a plaintiff's failure to comply with court orders would subject the complaint to dismissal under Federal which detracts from its weight.” PS vittiams, 859 F.2d at Rule of Civil Procedure 41(b). In addition, other Districts in 298 (citations omitted). However, a reviewing court cannot the Second Circuit have held that where a Social Security substitute its interpretation of the administrative record for plaintiff files a complaint but fails to file a brief on the merits, that of the Commissioner if the record contains substantial the complaint is conclusory and insufficient to defeat a motion support for the ALJ's decision. zialock y. Richardson, for judgment on the pleadings. P=! Winegard v. Barnhart, No. 483 F.2d 773, 775 (4th Cir.1972); see also PS eutherford y, 02-CV-6231 CJS, 2006 U.S. Dist. LEXIS 31973, at *27— Schweiker, 685 F.2d 60, 62 (2d Cir.1982). 28, 2006 WL 1455479, at *9-10 (W.D.NLY. Apr.5, 2006); Feliciano v. Barnhart, Civ. No. 04-9554 KMW AJP, 2005 USS. Dist. LEXIS 14578, at *34-36, 2005 WL 1693835, at II. THE ALJ'S DECISION *10(S.D.N.Y. July 21, 2005); Reyes v, Barnhart, Civ. No. 01- Here, the ALJ found at step one that Mr. Gregorka was not 4059 LTS JCF, 2004 U'S. Dist. LEXIS 3689, at *6-7, 2004 engaged in any substantial gainful activity from September = wy], 439495, at *3 (S.D.N.Y. Mar.9, 2004). 27, 2008, to April 1, 2012. (Dkt. No. 15-2 at 23.) At step two, the ALJ found that Mr. Gregorka suffered from the severe Jy this District, however, General Order No. 18 mandates a conditions of hypertensive and arthroscopic cardiovascular _qifferent course in Social Security cases. General Order 18 disease, chronic obstructive pulmonary disease, degenerative —_gaytions plaintiffs that “Plaintiff's brief is the only opportunity disc disease of the cervical and lumbar spine, and physical for Plaintiff to set forth the errors Plaintiff contends were

made by the Commissioner of Social Security that entitle was fifty-seven years old when he applied for SSI. (Dkt. No. Plaintiff to relief. The failure to file a brief as required by 15-2 at 21, 30.) Accordingly, Plaintiffs are not the SUIVIVINE this Order will result in the consideration of this appeal parents of a disabled child pursuant to agency regulations. without the benefit of Plaintiff's arguments and may result ina Therefore, it is recommended that the Court affirm the decision heavily influenced by the Commissioner's version of Commissioner's finding that Plaintiffs are not entitled to the facts and subsequent dismissal of your appeal.” (General recover SSI benefits. Order No. 18 at 4.) General Order 18 thus states that the Court will “consider” the case notwithstanding a plaintiff's B. DIB Claim failure to file a brief, albeit m a way that might be “heavily Defendant concedes that remand is appropriate regarding influenced by the Commissioner's version of the facts.” Jd. Plaintiffs! DIB claim. (Dkt. No. 18 at 10-14.) Specifically, In a case such as this, where the plaintiff is proceeding PrO remand is appropriate because it is not clear from the se, General Order No. 18's Promise ofa consideration of the Appeals Council's decision whether it considered four merits complies with the special solicitude that the Second medical assessments by Mr. Gregorka's treating physician that mandates for Pro se litigants. Accordingly, the Court were submitted as new evidence. (Dkt. No. 15-2 at 5; Dkt. has, despite Plaintiffs’ failure to file a brief, examined the No. 15-9 at 59-66.) Those assessments related to the period record to determine whether the ALJ applied the correct on or before the ALJ's decision and contradicted the ALJ's legal standards and reached a decision based on substantial REC finding. (Dkt. No. 15-9 at 59-66.) The Appeals Council evidence. was thus required to consider it. 20 C.F.R. § 404.970(b). Accordingly, it is recommended that the Court remand this V. DISCUSSION matter to the Commissioner for further proceedings regarding Plaintiff's DIB claim. A. SSI Claim The ALJ denied Mr. Gregorka's claim for both SSI and ©=oWHEREFORE, it is hereby DIB on the merits. (Dkt. No. 15-2 at 21-31.) The Appeals Council dismissed Plaintiffs’ request for review of the AL!s | RECOMMENDED, that this matter be remanded to the decision regarding SSI on the grounds that Plaintiffs were Commissioner, pursuant to sentence four of Pa 42 USC. § not eligible survivors for underpayment of SSI under the 2 agency's regulations. /d. at 8. In their complaint, Plaintiffs 405(8)," for further proceedings consistent with the above. explicitly challenge the denial of “Title IT benefits (Social Security Disability).” (Dkt. No. 1 at 1.) The complaint does Pursuant to Pll2g U.S.C. § 636(b)(1), the parties have not explicitly challenge the denial of SSI benefits under Title fourteen days within which to file written objections XVI. Defendant argues that to the extent that the complaint to the foregoing report. Such objections shall be filed can be construed as asserting an SSI claim, that claamismoot with the Clerk of the Court. FAILURE TO OBJECT and was properly dismissed by the Appeals Council. (Dkt. No. TO THIS REPORT WITHIN FOURTEEN DAYS WILL 18 at 8-10.) Defendant is correct. PRECLUDE APPELLATE REVIEW. | = Roldan □□ Raceite, *5 Agency regulations drastically limit the categories 984 F.2d 85, 87 (2d Cir.1993) (citing Pa small Sec'y of of individuals who can recover benefit underpayments on Health and Human Servs. ., 892 F.2d 15, 16 (2d Cir.1989)); behalf of a deceased individual. 20 C.F.R. § 416.542(b) al59 US.C. § 636(b)(1); Fed.R.CivP. 72. (4). Surviving parents can recover only if the deceased underpaid recipient was a disabled or blind child when the underpayment occurred. 20 C.F.R. § 416.542(b)(2)-(3). A Dated: May 28, 2015. “child” is an individual under the age of eighteen or an unmarried individual under the age of twenty-two who is lll Citations attending school. 20 C.F.R. § 416.1856. Here, Mr. Gregorka Not Reported in F.Supp □□□ 2015 WL 3915959

1 On Lexis, this published opinion is separated into two documents. The first is titled Roat v. Barnhart, 717 F.Supp.2d 241, 2010 U.S. Dist. LEXIS 55442, 2010 WL 2326142 (N.D.N.Y. June 7, 2010). It includes only the district judge's short decision adopting the magistrate judge's report and recommendation. The second is titled Roat v. Comm'r of Soc. Sec., 717 F.Supp.2d 241, 2010 U.S. Dist. LEXIS 55442, 2010 WL 2326142 (N.D.N.Y. June 7, 2010). It includes only the magistrate judge's report and recommendation. Westlaw includes both the district court judge's decision and the magistrate judge's report and recommendation in one documert, titled Ross v. Barnhart, 717 F.Supp.2d 241 (N.D.N.Y.2010). The Court has used the title listed by Westlaw. 2 Sentence four reads ‘“[t]he court shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Palg2 U.S.C. § 405(g).

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