Nazzaro v. Callahan, 95-CV-539A.
| Decision Date | 09 September 1997 |
| Docket Number | No. 95-CV-539A.,95-CV-539A. |
| Parties | David J. NAZZARO, Plaintiff, v. John J. CALLAHAN,<SMALL><SUP>1</SUP></SMALL> Acting Commissioner, United States Social Security Administration, Defendant. |
| Court | U.S. District Court — Western District of New York |
Neighborhood Legal Services, Inc., James R. Sheldon, Jr., of counsel, Buffalo, NY, for Plaintiff.
Patrick H. NeMoyer, United States Attorney, Mary K. Roach, Assistant United States Attorney, of counsel, Buffalo, NY, for Defendant.
This case was referred to Magistrate Judge Leslie G. Foschio, pursuant to 28 U.S.C. § 636(b)(1)(B) on October 27, 1995. On March 22, 1996, defendant filed a motion for judgment on the pleadings and on June 28, 1996, plaintiff filed a cross motion for judgment on the pleadings. On March 27, 1997, Magistrate Judge Foschio filed a Report and Recommendation denying defendant's motion for judgment on the pleadings and granting plaintiff's cross motion for judgment on the pleadings in part, denying it in part, and remanding the matter for reconsideration.
Plaintiff filed objections to the Report and Recommendation on April 4, 1997, only as to the finding that plaintiff's job coach assistance was not a subsidy. On April 11, 1997, defendant filed a memorandum opposing plaintiff's objections and on April 23, 1997, plaintiff submitted a reply brief. On April 30, 1997, plaintiff moved to adjourn the date for oral argument and this motion was granted. Oral argument was held on July 10, 1997.
Pursuant to 28 U.S.C. § 636(b)(1), this Court must make a de novo determination of those portions of the Report and Recommendation to which objections have been made. Upon a de novo review of those portions of the Report and Recommendation, and after reviewing the submissions and hearing argument from the parties, the Court adopts the proposed findings of the Report and Recommendation.
Accordingly, for the reasons set forth in Magistrate Judge Foschio's Report and Recommendation, defendant's motion for judgment on the pleadings is denied and plaintiff's cross motion for judgment on the pleadings is granted in part, denied in part, and remanded for reconsideration.
IT IS SO ORDERED.
REPORT AND RECOMMENDATION
This case was referred to the undersigned for report and recommendation, by the honorable Richard J. Arcara on October 27, 1995, pursuant to 28 U.S.C. § 636(b)(1)(B), and is presently before the court on Defendant's motion for judgment on the pleadings, filed March 22, 1996, and Plaintiff's cross-motion for judgment on the pleadings and to vacate the Appeals Council decision and remand this matter for reconsideration, filed June 28, 1996.
Plaintiff, David J. Nazzaro, seeks review of the Defendant's decision denying him Supplemental Security Income under Title XVI of the Social Security Act, 42 U.S.C. §§ 1381-1385 (1995), which provides supplemental security income ("SSI") benefits to individuals who have attained the age of sixty-five or are blind or disabled. In denying Nazzaro's application for benefits, Defendant determined that Nazzaro was engaged in substantial gainful activity ("SGA"), (R. 17-18), and that Nazzaro possessed the residual functional capacity to perform work-related activities except for work involving tolerance of undue stress and was, therefore, not disabled as defined by the Social Security Act. (R. 18).1 Nazzaro argues that the ALJ erred in failing to consider whether his earnings were subsidized and whether the special employment conditions created by the job coach services provided to Nazzaro by the Western New York Association for the Learning Disabled establish that Nazzaro is not engaged in SGA.
Nazzaro initially filed for disability benefits on April 14, 1993. (R. 44-46). That application was denied on May 14, 1993, (R. 47-51), and a request for reconsideration was filed on July 5, 1993. (R. 52). Nazzaro's claim for benefits was again denied on October 1, 1993, (R. 53-56), and Nazzaro appealed that determination.2 (R. 27-31).
On February 10, 1994 a hearing was held in Buffalo, New York before an administrative law judge ("ALJ"), Office of Hearings and Appeals of the Social Security Administration, Department of Health and Human Services, regarding the denial of disability benefits. (R. 33-43). On September 2, 1994, the ALJ rendered his decision, denying Nazzaro disability benefits. (R. 14-19). Nazzaro then, on November 4, 1994, requested a review of the hearing decision by the Secretary. (R. 5-13). On May 15, 1995, the Appeals Council concluded that there was no basis for granting the request for review, and that the decision of the ALJ was the final decision of the Social Security Administration. (R. 3-4).
Thereafter, on July 7, 1995, Nazzaro filed this action seeking review of the administrative decision. The matter was referred to the undersigned on October 27, 1995. On March 22, 1996 Defendant filed a motion for judgment on the pleadings and a memorandum of law in support of that motion. On June 28, 1996, Nazzaro filed a cross motion for judgment on the pleadings with an accompanying memorandum of law. On August 13, 1996, Defendant filed a supplemental memorandum of law in support of Defendant's motion for judgment on the pleadings. No oral argument was deemed necessary.
For the reasons as set forth below, the Defendant's motion for judgment on the pleadings (Doc. # 6) should be DENIED; Plaintiff's cross motion for judgment on the pleadings (Doc. # 9) should be DENIED in part and GRANTED in part and REMANDED for reconsideration.
David Nazzaro, has been severely learning disabled since birth. (R. 82). According to Nazzaro's West Seneca Central School District Psychological Reevaluation, dated November 27, 1985, Nazzaro was determined to be on the borderline of intellectual functioning. Although Nazzaro graduated high school in 1986 with a local diploma, his reading skills were determined to be at the 7th and 8th grade level, and his high school curriculum was modified and permitted use of a calculator, extended test-taking time, and individualized test-taking situations. (R. 114).
Nazzaro has deficiencies in processing information, including extracting relevant from extraneous information. Nazzaro's home life was described as unstable, his parents were divorced, and his father has spent time in the Buffalo Psychiatric Center in an effort to regain stability in his own life. Nazzaro's older brother was clearly favored by his father and worked for the father in the family business, although it was not expected that Nazzaro would join them, and Nazzaro was often made the scapegoat of family problems. Most of Nazzaro's support came from his stepmother who was more willing to engage him in conversations and attended Nazzaro's parent-teacher conferences. Nazzaro's stepmother, teachers, and the school psychologist all describe Nazzaro as having a vulnerable personality, manifested in his being socially withdrawn, lacking in confidence and having low self-esteem. These traits were attributed in part to his lack of early maternal bonding. At that time, it was recommended that Nazzaro receive psychological counseling and support and that he be encouraged to develop skills which would prepare him for employment after high school. It was further noted that with proper support Nazzaro may be able continue his education at the associate degree level. (R. 114-117). No other psychological evaluation of Nazzaro is in the record.
As of February 10, 1994, the date of the hearing before the ALJ, Nazzaro was twenty-seven years old and, although still considered as severely learning disabled, was attending Erie Community College in pursuit of a culinary arts degree. (R. 36, 44, 86). Nazzaro lived with a roommate in Kenmore, New York in a "supportive apartment" run by the Western New York Association for the Learning Disabled ("WNYALD"). (R. 36). The supportive apartment program was established to help learning impaired individuals acquire independent living skills. (R. 87).
Nazzaro first became involved with the WNYALD Supported Employment Program in September 1986. (R. 93). The Supported Employment Program provides on-site support to learning disabled adults to aid then in obtaining and maintaining employment. (R. 93). The WNYALD conducted a vocational evaluation of Nazzaro which revealed severe deficits in the areas of reasoning, perceptual speed and memory, signaling difficulty processing and integrating new information. (R. 93). Nazzaro's ability to conceptualize, organize, manipulate information and abstract thinking were also severely impaired, and were coupled with perceptual problems, demonstrating the need for sequential task repetition in learning new skills. (R. 93). Additionally, Nazzaro was found to have emotional difficulties including high levels of anxiety, need to control, insecurity and very low self esteem, and was socially and emotionally isolated. (R. 93).
Since graduating from high school in 1986 Nazzaro had held three regular jobs as of the date of the ALJ hearing. (R. 36, 37, 60-62). He worked as a dishwasher at the Saturn Club, a local private club, during 1987 and 1988. (R. 37, 60, 62). Nazzaro next worked as a baker at a Bells Market grocery store, during 1988 and 1989. (60-61, 62). Nazzaro started his most recent job in the bakery at TOPS Friendly Markets ("TOPS"), a supermarket located on Delaware Avenue in Buffalo, in May 1989. (R. 61, 62). All three of these jobs were obtained through the WNYALD's supported employment program. (R. 64). In connection with that program. Nazzaro was provided with a job coach, paid by WNYALD, who assisted Nazzaro in adapting to his jobs, including learning new job duties and safety aspects of the job, and acting as an intermediary between Nazzaro and his boss whenever Nazzaro experienced coping difficulties in the work setting. (R. 40-41, 64).
Nazzaro has received...
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