Cox v. Astrue

• Decision Date: 20 September 2012
• Docket Number: No. 11–CV–0032.,11–CV–0032.
• Citation: 993 F.Supp.2d 169
• Parties: Francis COX, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of New York

993 F.Supp.2d 169

Francis COX, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 11–CV–0032.

United States District Court,

N.D. New York.

Signed Sept. 19, 2012.

Filed Sept. 20, 2012.

Howard D. Olinsky, Olinsky Law Group, Syracuse, NY, for Plaintiff.

Andreea L. Lechleitner, Jason P. Peck, Suzanne M. Haynes, Social Security Administration, New York, NY, for Defendant.

DECISION & ORDER

THOMAS J. McAVOY, Senior District Judge.

This matter was referred to the Hon. Victor E. Bianchini, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Rule 72.3(d) of the Local Rules of the Northern District of New York. In a Report and Recommendation dated June 29, 2012 (“Report–Recommendation”), Magistrate Judge Bianchini recommended that Plaintiff's Motion for Judgment on the Pleadings be GRANTED, that Defendant's Motion for Judgment on the Pleadings be DENIED, that the decision of the Commissioner be reversed, and that the case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the Report and Recommendation. No objections to the Report and Recommendation have been lodged and the time for filing objections has expired.

CONCLUSION

After examining the record, this Court has determined that the Report and Recommendation is not subject to attack for plain error or manifest injustice. Therefore,

(1) The Court adopts the Report and Recommendation for the reasons stated therein;

(2) Plaintiff's Motion for Judgment on the Pleadings is GRANTED;

(3) Defendant's Motion for Judgment on the Pleadings is DENIED;

(4) The decision of the Commissioner is REVERSED, and

(5) The case is REMANDED to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for further administrative proceedings consistent with the Report and Recommendation.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

In July of 2008, Plaintiff Francis Cox applied for supplemental security income (“SSI”) and disability insurance benefits (“DIB”) under the Social Security Act. Plaintiff alleges that he had been unable to work since July of 2002 due to physical and mental impairments. The Commissioner of Social Security denied Plaintiff's applications.

Plaintiff commenced this action by and through his attorneys, Olinsky & Shurtliff, Howard D. Olinsky, Esq., of counsel, seeking judicial review of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

The Honorable Gary L. Sharpe, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 18).

II. BACKGROUND

The relevant procedural history may be summarized as follows:

Plaintiff applied for SSI benefits and DIB on July 7, 2008, alleging disability beginning on July 4, 2002. (T at 101–108, 150).¹ Plaintiff's claim was denied initially and he requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held in Syracuse, New York on March 16, 2010, before ALJ Elizabeth W. Koennecke. (T at 23). Plaintiff, accompanied by his attorney, appeared and testified. (T at 27–70).

On June 21, 2010, ALJ Koennecke issued a written decision finding that Plaintiff was not disabled within the meaning of the Social Security Act between the alleged onset date and the date of her decision. (T at 9–18). The ALJ's decision became the Commissioner's final decision on December 4, 2010, when the Appeals Council denied Plaintiff's request for review. (T at 1–3).

Plaintiff, by and through his attorneys, timely commenced this action on January 10, 2011. (Docket No. 1). The Commissioner interposed an Answer on June 17, 2011. (Docket No. 8). Plaintiff filed a Brief in support of his action on August 1, 2011. (Docket No. 11). The Commissioner filed a Brief in opposition on October 4, 2011. (Docket No. 15).

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.²

For the reasons that follow, it is recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and this case be remanded for calculation of benefits.

III. DISCUSSION

A. Legal Standard

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir.1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir.1987) ( “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 an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles.”); see Grey v. Heckler, 721 F.2d 41, 46 (2d Cir.1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir.1979).

“Substantial evidence” is evidence that amounts to “more than a mere scintilla,” and it has been defined as “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed.2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir.1982).

If supported by substantial evidence, the Commissioner's finding must be sustained “even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's].” Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y.1992). In other words, this Court must afford 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 different result upon a de novo review.” Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.1984).

The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See20 C.F.R. §§ 416.920, 404.1520. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140–142, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled. ³

While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n. 5, 107 S.Ct. 2287; Ferraris v. Heckler, 728 F.2d 582 (2d Cir.1984).

The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See42 U.S.C. § 423(d)(2)(A); 20 C.F.R. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

B. Analysis1. Commissioner's Decision

The ALJ determined that Plaintiff met the insured status requirements of the Social Security Act through September 30, 2006. The ALJ found that Plaintiff had not engaged in substantial gainful activity since July 4, 2002, the alleged onset date. (T at 11).

The ALJ concluded that Plaintiff had the following severe impairment, as defined under the Social Security Act: major depressive disorder. (T at 11). However, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in the Listings. (T at 12–13).

The ALJ concluded that Plaintiff retained the residual functional capacity to perform a full range of work at all exertional levels. The ALJ further found that Plaintiff could understand, carry out, and remember at least simple instructions; respond appropriately to supervision, co-workers, and usual work situations; and deal with changes in a routine work setting. (T at 13–17).

The ALJ determined that Plaintiff could perform his past relevant work as a cab driver. (T at 17). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, from July 4, 2002 (the alleged onset date) through June 21, 2010 (the date of the ALJ's decision). (T at 18).

As noted above, the ALJ's decision became the Commissioner's final decision on December 4, 2010, when the Appeals Council denied Plaintiff's request for review. (T at 1–3).

2. Plaintiff's Claims

Plaintiff argues that the Commissioner's decision should be reversed. Plaintiff offers six (6) principal arguments in support of his position. First, Plaintiff contends that the ALJ should have obtained a consultative examination. Second, Plaintiff asserts that the ALJ improperly assessed the severity of his right ankle and knee impairments. Third, Plaintiff argues that the ALJ failed to properly apply the treating physician's rule and should have concluded that his depression met the requirements of the impairment set forth at § 12.04 of the Listings. Fourth, Plaintiff contends that the ALJ's residual functional capacity assessment was not supported by substantial evidence. Fifth, Plaintiff challenges the ALJ's credibility determination. Sixth, Plaintiff contends that the ALJ should have...