# Rukaj v. Commissioner of Social Security

> District Court, E.D. New York · May 30, 2020

URL: https://www.frixlaw.com/law-library/cases/10304292

## Case

- **Court:** District Court, E.D. New York
- **Decided:** May 30, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

--------------------------------------X

DAVID RUKAJ MEMORANDUM AND ORDER
19-CV-1744 (KAM)

Plaintiff,

-against-

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

--------------------------------------X
KIYO A. MATSUMOTO, United States District Judge:
Plaintiff David Rukaj (“plaintiff” or “claimant”) appeals
the final decision of the Commissioner of the Social Security
Administration (“SSA”) (“defendant” or the “Commissioner”), which
found plaintiff not disabled and thus not entitled to disability
insurance benefits (“DIB”) under sections 216(i) and 223(d) of
Title II of the Social Security Act (“the Act”). Before the
court are the parties’ cross-motions for judgment on the
pleadings. For the reasons set forth below, the Commissioner’s
motion for judgment on the pleadings is GRANTED, and plaintiff’s
motion is respectfully DENIED.
BACKGROUND
The factual and procedural background leading to this
action is set forth in the administrative record. (ECF No. 18,
Administrative Transcript (“Tr.”).) The court has reviewed the
parties’ respective motions for judgment on the pleadings and
the administrative record.
The parties to this action have entered a Joint Stipulation
of Relevant Facts detailing Plaintiff’s medical history as well
as his testimony at his administrative hearing. (ECF No. 17-1,

Joint Stipulation of Relevant Facts.) The court incorporates
the stipulated facts by reference, and details facts relevant to
the parties’ argument below.
I. Procedural History
On May 8, 2015, Plaintiff filed a Title II application for
a period of disability and disability insurance benefits,
alleging disability beginning January 29, 2015. (Tr. at 680.)
Plaintiff’s claim was denied on October 21, 2015. (Tr. at 786-
797.)
Thereafter, plaintiff submitted a written request for a
hearing on November 13, 2015. (Tr. at 798.) The hearing took

place on April 16, 2018 in Queens, New York; Administrative Law
Judge Robert R. Schriver (“ALJ”) presided over the matter. (Tr.
at 711-772.) Plaintiff was represented by attorney Herbert S.
Forsmith. (Id.) Plaintiff, his wife, and a neutral vocational
expert testified. (Id.)
On May 2, 2018, the ALJ determined that plaintiff was not
disabled under sections 216(i) and 223(d) of the Social Security
Act. (Tr. at 677-710.) Plaintiff requested review of the ALJ’s
decision on May 7, 2018. (Tr. at 882-886.) The Appeals Council
subsequently denied plaintiff’s request for review on February
14, 2019. (Tr. at 1-7.) This action followed. (See generally
ECF No. 1, Compl.)
STANDARD OF REVIEW

Unsuccessful claimants for disability benefits may bring an
action in federal court seeking judicial review of the
Commissioner’s denial of their benefits. 42 U.S.C. §§ 405(g),
1383(c)(3). The reviewing court does not have the authority to
conduct a de novo review, and may not substitute its own
judgment for that of the ALJ, even when it might have
justifiably reached a different result. Cage v. Comm’r, 692
F.3d 118, 122 (2d Cir. 2012). Rather, “‘[a] district court may
set aside the Commissioner’s determination that a claimant is
not disabled only if the factual findings are not supported by
‘substantial evidence’ or if the decision is based on legal

error.’” Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)
(quoting Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000)).
“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.’” Id. (quoting
Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004)). If there
is substantial evidence in the record to support the
Commissioner’s factual findings, those findings must be upheld.
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 . . . .”). Inquiry into legal error
requires the court to ask whether “‘the claimant has had a full
hearing under the [Commissioner’s] regulations and in accordance

with the beneficent purposes of the [Social Security] Act.’”
Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (quoting Cruz
v. Sullivan, 912 F.2d 8, 11 (2d Cir. 1990)).
DISCUSSION
I. The Commissioner’s Five-Step Analysis of Disability Claims
A claimant must be “disabled” within the meaning of the Act
to receive disability benefits. See 42 U.S.C. §§ 423(a), (d). A
claimant qualifies as disabled when he is unable to “engage in
any substantial gainful activity by reason of any medically
determinable physical or mental impairment which can be expected
to result in death or which has lasted or can be expected to

last for a continuous period of not less than 12 months.” Id. §
423(d)(1)(A); Shaw, 221 F.3d at 131–32. The impairment must be
of “such severity” that the claimant is unable to do her or his
previous work or engage in any other kind of substantial gainful
work. 42 U.S.C. § 423(d)(2)(A).
The regulations promulgated by the Commissioner prescribe a
five-step sequential evaluation process for determining whether
a claimant meets the Act’s definition of disabled. See 20
C.F.R. § 404.1520. The Commissioner’s process is essentially as
follows:
[I]f the Commissioner determines (1) that the claimant is
not working, (2) that [s]he has a ‘severe impairment,’ (3)
that the impairment is not one [listed in Appendix 1 of the
regulations] that conclusively requires a determination of
disability, and (4) that the claimant is not capable of
continuing in [her] prior type of work, the Commissioner
must find [her] disabled if (5) there is not another type
of work the claimant can do.

Burgess, 537 F.3d at 120 (quoting Green-Younger v. Barnhart, 335
F.3d 99, 106 (2d Cir. 2003)); accord 20 C.F.R. § 404.1520(a)(4).
If the answer at any of the previously mentioned steps is “no,”
the analysis stops and the ALJ must find that the claimant does
not qualify as disabled under the Act.
“The claimant has the general burden of proving . . . his
or her case at steps one through four of the sequential five-
step framework established in the SSA regulations.” Burgess,
537 F.3d at 128 (internal quotation marks and citations
omitted). “However, [b]ecause a hearing on disability benefits
is a nonadversarial proceeding, the ALJ generally has an
affirmative obligation to develop the administrative record.” Id.
(internal quotation marks omitted). “The burden falls upon the
Commissioner at the fifth step of the disability evaluation
process to prove that the claimant, if unable to perform her
past relevant work [and considering her residual functional
capacity, age, education, and work experience], is able to
engage in gainful employment within the national economy.”
Sobolewski v. Apfel, 985 F. Supp. 300, 310 (E.D.N.Y. 1997).
“The Commissioner must consider the following in
determining a claimant’s entitlement to benefits: ‘(1) the
objective medical facts [and clinical findings]; (2) diagnoses

or medical opinions based on such facts; (3) subjective evidence
of pain or disability . . . ; and (4) the claimant’s educational
background, age, and work experience.’” Balodis v. Leavitt, 704
F. Supp. 2d 255, 262 (E.D.N.Y. 2001) (quoting Brown v. Apfel,
174 F.3d 59, 62 (2d Cir. 1999) (alterations in original)). If
the Commissioner finds a combination of impairments, the
Commissioner must also consider whether “the combined effect of
all of [a claimant’s] impairment[s]” establish the claimant’s
eligibility for Social Security benefits. 20 C.F.R. § 404.
1523(c); see also id. § 416.945(a)(2).
II. The ALJ’s Application of the Five-Step Analysis

At step one, the ALJ concluded that plaintiff had not
engaged in substantial gainful activity since January 29, 2015,
the alleged onset date. (Tr. at 682.)
At step two, the ALJ found that plaintiff had the following
severe impairments: internal derangement of the cervical spine,
without disc herniation; degenerative disc disease of the lumbar
spine with disc herniation and multiple bulging discs;
osteoarthritis of the lumbar spine with radiculopathy; mild
intellectual disability; a nonverbal learning disorder; and
anxiety disorder. (Tr. at 682-83). The ALJ found also that
plaintiff had the non-severe impairment of an unspecified
shoulder strain—which did not meet the durational requirement of
severity—as well as the non-severe impairments of dysplasia,

tendinopathy, and mild degenerative chondrosis of the right hip—
non-severe insofar as they had not been shown to cause more than
minimal limitations in plaintiff’s ability to perform basic work
activities. (Tr. at 683.)
At step three, the ALJ found that plaintiff did not have an
impairment or combination of impairments that met or medically
equaled the severity of one of the listed impairments in 20
C.F.R. Part 202, Subpart P, App’x 1. (Tr. at 683-86.) The ALJ
considered § 1.04 Disorders of the Spine; § 12.06 Anxiety
Disorder; and § 12.05 Intellectual Disorder. (Id.)
The ALJ determined that plaintiff’s spinal condition did

not meet the relevant requirements of § 1.04: his cervical spine
had not shown compromise of the nerve root nor had his lumbar
spine shown either stenosis (required under § 1.04(C)) or
positive straight leg raising testing in both the sitting and
supine positions (required under § 1.04(A)). (Id.)
The ALJ further determined that the severity of plaintiff’s
mental impairments, considered separately and in combination,
did not meet or medically equal the criteria of § 12.06 or §
12.05. Regarding § 12.06, the ALJ determined that plaintiff’s
anxiety did not satisfy the paragraph “B” criteria, as he
neither had one extreme limitation nor two marked limitations in
the designated broad areas of functioning, which are:
understanding, remembering, or applying information; interacting

with others; concentrating, persisting, or maintaining pace; or
adapting or managing oneself. (Tr. at 683.) The paragraph (B)
criteria of § 12.06 are identical to the paragraph (B)(2)
criteria of § 12.05. Step three is further discussed infra.
At step four, the ALJ found that plaintiff was unable to
perform any past relevant work. (Tr. at 702.) Plaintiff’s
previous job as a doorkeeper required medium exertion while his
previous job as a security guard required light exertion. (Id.)
The ALJ determined that these exertional demands exceeded
plaintiff’s residual functional capacity. (Id.)
At step five, the ALJ determined that jobs existed in

significant numbers in the national economy that plaintiff could
perform. (Tr. at 702.) The ALJ provided the vocational expert
with plaintiff’s age, education, work experience, and residual
functional capacity; though the vocational expert testified that
plaintiff would be unable to perform competitive work if
plaintiff was off task more than 10% of the time (Tr. at 941-
954), the vocational expert also testified that plaintiff could
undertake “representative sedentary unskilled occupations,”
including occupation as an addresser, a document preparer, and a
food/beverage order clerk. (Tr. at 702-703.)
Based on the foregoing analysis, the ALJ found that
plaintiff was not disabled from January 29, 2015 through the
date of the decision. (Tr. at 703.)

III. The ALJ Did Not Commit Error in His Analysis of Step Three

Plaintiff argues that the ALJ’s application of § 12.05
Intellectual Disorder at step three of the analysis is
incorrect. (See ECF No. 10, Pl.’s Mot. J. (“Pl.’s Mot.”).) To
establish “significant deficits in adaptive functioning” under
Listing 12.05B, plaintiff must demonstrate an extreme limitation
in one, or a marked limitation in two, of the paragraph B
criteria. 20 C.F.R. Part 404, Subpart P, App’x 1, Section
12.00H(3)(a) (“Under 12.05B2, we identify significant deficits
in adaptive functioning based on whether there is extreme
limitation of one, or marked limitation of two, of the paragraph
B criteria.”).1

1 Plaintiff, despite acknowledging that the controlling version of the
regulation for purposes of the ALJ’s May 2, 2018 decision was promulgated on
January 17, 2017, see 20 C.F.R. Part 404, Subpart P, App’x 1, Section 12.05B,
incorrectly cites to cases based on an outdated standard in his brief. Pl.
Mot. at 5, 10-12; see 81 Fed. Reg. 66138-01, 66138 n.1 (Sept. 26, 2016)
(“[W]e will use these final rules on and after their effective date, in any
case in which we make a determination or decision. We expect that Federal
courts will review our final decisions using the rules that were in effect at
the time we issued the decisions. If a court reverses our final decision and
remands a case for further administrative proceedings after the effective
date of these final rules, we will apply these final rules to the entire
period at issue in the decision we make after the court’s remand.”)
The § 12.05 criteria are:
A. Satisfied by 1, 2, and 3 (see 12.00H):
1. Significantly subaverage general intellectual functioning
evident in your cognitive inability to function at a level
required to participate in standardized testing of
intellectual functioning; and
2. Significant deficits in adaptive functioning currently
manifested by your dependence upon others for personal needs
(for example, toileting, eating, dressing, or bathing); and
3. The evidence about your current intellectual and adaptive
functioning and about the history of your disorder
demonstrates or supports the conclusion that the disorder
began prior to your attainment of age 22.

OR

B. Satisfied by 1, 2, and 3 (see 12.00H):
1. Significantly subaverage general intellectual functioning
evidenced by a or b:
a. A full scale (or comparable) IQ score of 70 or below on an
individually administered standardized test of general
intelligence; or
b. A full scale (or comparable) IQ score of 71-75 accompanied
by a verbal or performance IQ score (or comparable part
score) or 70 or below on an individually administered
standardized test of general intelligence; and
2. Significant deficits in adaptive functioning currently
manifested by extreme limitation of one, or marked limitation of
two, of the following areas of mental functioning:
a. Understand, remember, or apply information (see 12.00E1);
or
b. Interact with others (see 12.00E2); or
c. Concentrate, persist, or maintain pace (see 12.00E3); or
d. Adapt or manage oneself (see 12.00E4); and
3. The evidence about your current intellectual and adaptive
functioning and about the history of your disorder demonstrates
or supports the conclusion that the disorder began prior to your
attainment of age 22.

20 C.F.R. Part 404, Subpart P, App’x 1, § 12.05B.
The ALJ determined that plaintiff did not satisfy the
(A)(1) and (A)(2) criteria and, in the alternative, determined
that plaintiff did not satisfy the (B) criteria. (Tr. at 683-
86.) Regarding § 12.05(B)(2)(a), the ALJ determined that
plaintiff had a moderate limitation in understanding,
remembering, or applying information. (Tr. at 683-84.) The ALJ
noted plaintiff’s history of having a learning disorder, being
placed in special education classes in school, and that he
dropped out of school in 10th grade due to learning
difficulties. (Tr. at 683.) Further, the ALJ noted that Dr.

Kushner, a consultative examiner, found that plaintiff’s recent
and remote memory skills were only somewhat impaired;
plaintiff’s intellectual functioning seemed only somewhat below
average; plaintiff had “up to a moderate limitation” in the
ability to learn new tasks and to perform complex tasks under
supervision; and that plaintiff had and could continue to manage
the household funds with his wife. (Tr. at 683-84.) The ALJ
concluded that these findings were consistent with the medical
evidence as a whole. (Tr. at 684.) The court’s independent
review of the record reveals the same result.
The ALJ notes, and plaintiff argues, that the June 1, 2017

finding by Sanam Hafeez, Psy. D., and Michael Fodera, M.S., are
inconsistent with the ALJ’s own findings. School psychologists
Dr. Hafeez and Mr. Fodera found that plaintiff’s scores for
memory “were falling into the 3rd, 1st, 0.3rd, and 0.1st
percentiles.” (Id.) The examiners and the ALJ noted the
possibility that those low scores may have instead been the
result of plaintiff’s English language limitations, and should
be considered with reservation. (Id.) The ALJ postulated that
such scores, if valid, “would essentially equate to an inability
to even function in daily life.” (Id.) Significantly, Dr.
Hafeez and Mr. Fodera never arrive at such a conclusion. (Id.)
The ALJ concluded that, given the medical evidence as a whole
and given plaintiff’s generally proficient memory during

testimony, the scores were “likely” due to language difficulties
rather than extreme limitations. (Id.) Dr. Hafeez and Mr.
Fodera found that retesting in plaintiff’s native language was
warranted, though such testing never occurred. (Tr. at 1205.)
Plaintiff testified that he had trouble remembering to
perform his work-related duties while employed as a doorman and
a security guard. (See generally Tr. at 718-35.) For instance,
as a security guard, plaintiff forgot to do his rounds (Tr. at
720), forgot to close and lock doors (Tr. at 724), forgot that
his supervisor told him not to take additional breaks, and thus
continued to take several additional breaks (Tr. at 727), and

forgot to listen to his self-recorded memos of his work
instructions. (Tr. at 726.) Further, as a doorman, plaintiff
forgot to open the door for tenants; arguably the crux of the
position. (Tr. at 731.)
Regarding § 12.05(B)(2)(b), the ALJ determined that
plaintiff had a mild limitation in interacting with others,
citing Dr. Kushner’s findings that plaintiff had no limitations
in relating adequately with others. (Id.) The ALJ’s
determination was also based on plaintiff’s self-completed
Function Report, in which he mentioned spending time with
others, chatting on the phone and over the computer, visiting
with family, and going to church. (Id.)
Regarding § 12.05B(2)(c), the ALJ determined that plaintiff

had a moderate limitation in concentrating, persisting, or
maintaining pace. Dr. Kushner assessed that plaintiff’s
attention and concentration were somewhat impaired, since he
could perform simple calculations but made errors counting
backwards from 20 by 3s. (Id.) Dr. Ferrari reported that
plaintiff had fair attention and concentration at their initial
consultation, and later reported good attention and
concentration. (Id. at 685-86.) Dr. Hafeez and Mr. Fodera’s
neuropsychological tests indicated that plaintiff had some
delays in attention and concentration. (Id.)
Plaintiff argues that he manifests “extreme deficits” in

concentrating, persisting, and maintaining pace. (Pl.’s Mot. at
10, 11.) However, plaintiff’s testimony is the only evidence of
such extreme deficits. (See generally Tr. at 711-72.)
Plaintiff testified that he “couldn’t focus in [his] proper
mind” as a doorman, then lost his job as a security guard
because he “didn’t do [his] rounds” and “was not in [his] right
mind.” (Tr. at 719-720.) Plaintiff also claims, in his Function
Report, that he has problems paying attention and cannot finish
what he starts. (Tr. at 698.) Finding that plaintiff’s
testimony was not supported by medical evidence, the ALJ did not
afford plaintiff’s testimony significant weight. (Id.)
Regarding § 12.05(B)(2)(d), the ALJ determined that
plaintiff had a mild limitation in adapting or managing himself,

noting that plaintiff “ha[d] consistently been able to maintain
adequate daily functioning within his physical limitations,”
including caring for his child (of whom he has joint custody
with his ex-wife), taking the subway, grooming himself,
preparing simple foods, and attending his appointments.
(Id.) The ALJ also referenced Dr. Kushner’s opinion that
plaintiff had “up to a moderate limitation” in the ability to
maintain a regular schedule and appropriately deal with
stress. (Id.) These findings are contrasted against the June
1, 2017 findings of Dr. Hafeez and Mr. Fodera, which indicated
significant delays in areas related to adaptive functioning.

(Tr. at 1192-1206.)
The ALJ thus found neither one extreme limitation nor two
marked limitations across the aforementioned broad areas of
functioning, and concluded that plaintiff did not satisfy
§ 12.05(B)(2) or § 12.06(B). (Tr. at 686.) Following this
analysis, and taking the totality of plaintiff’s physical and
mental impairments into account, the ALJ found that plaintiff
had the residual functional capacity to perform a substantial
range of sedentary work as defined in 20 C.F.R. § 404.1567(a).
(Id.) Plaintiff could sit for six hours and stand/walk for two
hours in an eight-hour workday, as well as lift and carry ten
pounds occasionally and less than ten pounds frequently.
(Id.) Plaintiff could not tolerate exposure to respiratory

irritants. (Id.) Due to his mental impairments, plaintiff
would be limited to jobs consisting solely of simple, routine,
and repetitive tasks. (Id.)
In coming to his conclusion regarding plaintiff’s residual
functional capacity, the ALJ accorded great weight to the
opinions of Dr. Kushner, and accorded weight only to the extent
that the opinions of Dr. Smith, Dr. Teli, and Dr. Hafeez and Mr.
Fodera were “consistent with the medical evidence and clinical
findings of the record.” (Tr. at 700-01.) The ALJ afforded no
weight to the opinions of Dr. Lattuga. (Tr. at 700.)
Plaintiff’s argument rests largely on the results of Dr.

Hafeez and Mr. Fodera, and his own testimony. However, as
demonstrated supra, the record supports the ALJ’s interpretation
of Dr. Hafeez and Mr. Fodera’s opinion. The examiners
themselves expressed doubt about the validity of the results,
saying that they should be considered “with caution” and
recommended retesting in plaintiff’s native language. (Tr. at
1203.) Their finding that plaintiff’s I.Q. was at an extremely
low level, such that ordinary daily functioning would not be
possible, is unsupported by the record. The plaintiff’s
testimony and self-completed Function Report alone cannot
support a finding of an extreme limitation. For this reason and
the reasons explained supra, the ALJ properly found that
plaintiff is not disabled within the meaning of the statue.

CONCLUSION
Plaintiff’s motion for judgment on the pleadings is
respectfully DENIED and the Commissioner’s cross-motion for
judgment on the pleadings is GRANTED. The Clerk is directed to
enter judgment, dismissing the case.

SO ORDERED.
Dated: May 30, 2020
Brooklyn, New York

_________/s/_________________
HON. KIYO A. MATSUMOTO
United States District Judge
Eastern District of New York

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