McGregor v. Astrue

• Citation: 993 F.Supp.2d 130
• Decision Date: 12 July 2012
• Docket Number: No. 7:10–CV–01483.,7:10–CV–01483.
• Parties: Scott J. McGREGOR, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Northern District of New York

993 F.Supp.2d 130

Scott J. McGREGOR, Plaintiff,

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

No. 7:10–CV–01483.

United States District Court, N.D. New York.

Signed July 12, 2012.

Lawrence D. Hasseler, Conboy, McKay Law Firm—Carthage Office, Carthage, NY, for Plaintiff.

Joanne Jackson Social Security Administration New York, NY, for Defendant.

DECISION and ORDER

THOMAS J. McAVOY, District Judge.

This matter brought pursuant to 42 U.S.C. § 1983 was referred to the Hon. Victor E. Bianchini, United States Magistrate Judge, for a Report–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.

No objections to the June 1, 2012 Report–Recommendation have been raised. After examining the record, this Court has determined that the Report–Recommendation is not subject to attack for plain error or manifest injustice. Accordingly, this Court adopts the Report–Recommendation for the reasons stated therein.

It is, therefore, ORDERED that:

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

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

(3) the Commissioner's Decision is REVERSED; and

(4) Plaintiff's case is REMANDED to the Commissioner for proceedings regarding the calculation of benefits.

IT IS SO ORDERED.

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

In January of 2008, Plaintiff Scott J. McGregor applied for disability and disability insurance benefits (“DIB”) under the Social Security Act. Plaintiff alleges that he had been unable to work since September of 2007 due to physical and mental impairments. The Commissioner of Social Security denied Plaintiff's application.

Plaintiff commenced this action by and through his attorneys, Conboy McKay Bachman & Kendall, Lawrence D. Hasseler, 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. 16).

II. BACKGROUND

The relevant procedural history may be summarized as follows:

Plaintiff applied for benefits on January 22, 2008, alleging disability beginning on September 11, 2007. (T at 127–36, 164).¹ The application was denied initially and Plaintiff requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held in Syracuse, New York on November 20, 2009, before ALJ John P. Ramos. (T at 33). Plaintiff, accompanied by his attorney, appeared and testified. (T at 38–63).

On December 7, 2009, ALJ Ramos 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 last insured and was thus not entitled to benefits. (T at 15–27). The ALJ's decision became the Commissioner's final decision on November 24, 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 December 8, 2010. (Docket No. 1). The Commissioner interposed an Answer on March 25, 2011. (Docket No. 8). Plaintiff filed a Brief in support of his action on April 27, 2011. (Docket No. 11). Defendant filed a Brief in opposition on June 24, 2011. (Docket No. 14).

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 December 31, 2008. The ALJ found that Plaintiff did not engage in substantial gainful activity between September 11, 2007, the alleged onset date, and December 31, 2008, the date last insured. (T at 17).

The ALJ concluded that, as of the date last insured, Plaintiff had the following impairments, which the ALJ considered “severe,” as defined under the Social Security Act: chronic obstructive pulmonary disease (“COPD”), substance abuse (in remission), obesity, degenerative disc disease of the lumbar spine, and schizoaffective disorder. (T at 17). 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 14).

The ALJ concluded that Plaintiff retained the residual functional capacity (as of the date last insured) to lift/carry 10 pounds occasionally and less than 10 pounds frequently; sit for 6 hours in an 8–hour day; and stand/walk for 2 hours in an 8–hour day. The ALJ found that Plaintiff could occasionally stoop, kneel, crouch, and crawl. The ALJ assessed that Plaintiff could (on a sustained basis, as of the date last insured) understand, carry out, and remember simple instructions; respond appropriately to supervision, co-workers, and usual work situations, and deal with changes in a routine work setting. (T at 21).

The ALJ determined that (as of the date last insured) Plaintiff could not perform his past relevant work as a cashier, disc jockey, production director, floor cleaner, taxi driver, and telemarketer. (T at 25). Considering Plaintiff's age (39 years old on the date last insured), education (high school), work experience, and residual functional capacity, the ALJ found that there were jobs that existed in significant numbers in the national economy that Plaintiff can perform as of the date last insured. (T at 26). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, from September 11, 2007 (the alleged onset date) through December 31, 2008 (the date last insured). (T at 26).

As noted above, the ALJ's decision became the Commissioner's final decision on November 24, 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 five (5) principal arguments in support of his position. First, Plaintiff contends that the ALJ should have concluded that his schizophrenia met the requirements of the impairment set forth at § 12.03 of the Listings. Second, Plaintiff argues that the ALJ did not properly assess the medical evidence. Third, Plaintiff challenges the ALJ's credibility determination. Fourth, Plai...