United States District Court, D. Connecticut
JAIME M. BURKE, Plaintiff,
NANCY A. BERRYHILL, Acting COMMISSIONER OF Social Security, Defendant.
ORDER AFFIRMING THE COMMISSIONER'S
W. THOMPSON UNITED STATES DISTRICT JUDGE
Jaime M. Burke has appealed under § 205(g) of the Social
Security Act, as amended, 42 U.S.C. § 405(g), a final
Decision by the Commissioner denying his application for
disability insurance benefits and Supplemental Security
plaintiff argues that substantial evidence does not support
either the Administrative Law Judge's (“ALJ”)
residual functional capacity (“RFC”) formulation,
or the ALJ's finding at Step 5 that jobs that the
plaintiff could perform exist in significant numbers. The
plaintiff supports this argument with the assertion (1) that
the RFC did not account for the time the plaintiff would be
off-task and (2) that the hypothetical person relied on in
Step 5 was not analogous to the plaintiff, who would be off
task due to an inability to focus or concentrate. Pl.'s
Mem. to Reverse (Doc. No. 19-1) at 12-15.
Commissioner argues that the plaintiff fails to credibly
establish limitations that would cause him to be off task 10
percent or more of the workday and that the RFC and the
ALJ's conclusion that light work exists is supported by
substantial evidence. See Def.'s Mem. to Affirm (Doc. No.
22) at 8.
reasons set forth below, the ALJ's Decision is being
district court reviewing a final  decision . . . [of the
Commissioner of Social Security] pursuant to section 205(g)
of the Social Security Act, 42 U.S.C. § 405(g), is
performing an appellate function.” Zambrana v.
Califano, 651 F.2d 842, 844 (2d Cir. 1981). The court
may not make a de novo determination of whether a plaintiff
is disabled in reviewing a denial of disability benefits. See
Wagner v. Sec'y of Health & Human Servs.,
906 F.2d 856, 860 (2d Cir. 1990). Rather, the court's
function is to ascertain whether the Commissioner applied the
correct legal principles in reaching a conclusion and whether
the Decision is supported by substantial evidence. See
Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).
Substantial evidence is “‘such relevant evidence
as a reasonable mind might accept as adequate to support a
conclusion.'” Williams v. Bowen, 859 F.2d
255, 258 (2d Cir. 1988) (quoting Richardson v.
Perales, 402 U.S. 389, 401 (1971)). Substantial evidence
must be “more than a mere scintilla or touch of proof
here and there in the record.” Williams, 859 F.2d at
258. Therefore, absent legal error, this court may not set
aside the Decision of the Commissioner if it is supported by
substantial evidence. See Berry v. Schweiker, 675
F.2d 464, 467 (2d Cir. 1982); 42 U.S.C. §
405(g)(“The findings of the Commissioner of Social
Security as to any fact, if supported by substantial
evidence, shall be conclusive . . . .”). Further, if
the Commissioner's Decision is supported by substantial
evidence, that Decision will be sustained, even where there
may also be substantial evidence to support the
plaintiff's contrary position. See Schauer v.
Schweiker, 675 F.2d 55, 57 (2d Cir. 1982).
plaintiff points out that the ALJ relied heavily on Dr.
Leveille's opinion that the plaintiff can do simple work
in an isolated environment for two-hour periods in an
eight-hour day and that he would have
occasional problems with prolonged
concentration and sustained pace due to anxiety. The
plaintiff notes that the vocational expert testified that
being off task 10 percent of the time would render a person
court agrees with the Commissioner that the plaintiff has not
provided evidence that the plaintiff would be off task 10
percent or more of the time. The plaintiff merely argues that
the ALJ should have incorporated the off-task time into the
Step 4 and Step 5 analyses. However, if a job provides
“[n]ormal work breaks and meal periods”, that
would “split an eight hour workday into approximately
two hour periods” and fall within the limitations noted
by Dr. Leveille. Swain v. Colvin, No. 1:14-CV-869,
2017 WL 2472224, at *3 (W.D.N.Y. June 8, 2017) (citing SSR
96-9p (recognizing that an 8-hour workday may be broken up
into two-hour intervals with a morning break, a lunch period,
and an afternoon break)). The absence of any evidence that
the plaintiff would be off task 10 percent or more of the
time means his argument that he should have been found
unemployable based on the vocational expert's testimony
has no foundation in the record, and he raises no other
serious challenge to the Commissioner's position that the
ALJ's Step 4 and Step 5 conclusions are supported by
reasons set forth above, the Defendant's Motion for an
Order Affirming the Decision of the Commissioner (Doc. No.
22) is hereby GRANTED, and Plaintiff's Motion for Order
Reversing the Commissioner's Decision and for Judgment
(Doc. No. 19) is hereby DENIED.
Clerk shall enter Judgment accordingly and close this case.
The Clerk's Office is instructed that, if any party
appeals to this court the decision made after this remand,
any subsequent ...