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COLBERT v. CHATER

July 24, 1995

RONALD COLBERT, Plaintiffs, against SHIRLEY S. CHATER, Commissioner of Social Security 1, Defendant.

John G. Koeltl, United States District Court Judge


The opinion of the court was delivered by: JOHN G. KOELTL

JOHN G. KOELTL, District Judge:

 The issue in this case is whether substantial evidence supports the finding by the Commissioner of Social Security ("Commissioner") that the plaintiff, Ronald Colbert, is not entitled to Supplemental Security Income ("SSI") benefits because he is not disabled within the meaning of that program. After listening to the sworn testimony of the plaintiff and reviewing all the medical records that were submitted, the Administrative Law Judge ("ALJ") determined that the plaintiff was not eligible for supplemental security income. (R. 18). The ALJ determined that, while the plaintiff had a long history of alcohol and drug abuse as well as certain other impairments, his impairments did not prevent him from performing his past relevant work and that he was not under a disability as defined in the Social Security Act. (R. 17). The Appeals Council of the Social Security Administration denied the request to review the ALJ's decision. (R. 4). This appeal followed. *fn2" For reasons explained below, after reviewing the administrative record, this Court concludes that there is substantial evidence supporting the Commissioner's determination that the plaintiff is not disabled within the meaning of the SSI Program.

 I.

 The plaintiff, Ronald Colbert, was born on July 27, 1947 and was forty-six years old at the time of the hearing before the ALJ. (R. 27). He has completed high school, and has been employed as a machinist, short order cook, cabinet maker and production color mixer. (R. 27, 29, 123). He has had a history of alcohol and drug abuse including numerous hospitalizations for detoxification between 1986 and 1991. (R. 150-56, 179-86, 194-209, 223-29). However, as of the hearing before the ALJ on October 6, 1993, the plaintiff testified that he had not had a drink or used any drugs for twenty-two months. (R. 37). The plaintiff also has a history of bronchiectasis and was treated for tuberculosis. (R. 47, 179, 234).

 On October 6, 1993, a hearing was held by ALJ John W. Whittlesey in White Plains, New York to determine whether the plaintiff is disabled under the Act. The ALJ found that the plaintiff met the disability insured status requirements on January 8, 1990, the date the plaintiff stated he became unable to work, and continued to meet them through December 31, 1992. (R. 17). The ALJ concluded that the plaintiff was not under a "disability" as defined in the Social Security Act at any time through the date of the decision. 20 C.F.R. §§ 404.1520(e) and 416.920(e). *fn3" On December 17, 1994, the plaintiff requested a review of ALJ Whittlesey's decision by the Social Security Administration's Appeals Council. (R. 8). The Appeals Council denied the request on March 9, 1994. (R. 4). ALJ Whittlesey's decision therefore became the final decision of the Secretary with respect to the February 11, 1992 application for supplemental benefits. *fn4" The plaintiff filed the complaint in this action on May 12, 1994.

 II.

 A court may reverse a finding of the Commissioner only if that finding is not supported by substantial evidence in the record. 42 U.S.C. § 405(g) (1991) (made applicable to SSI cases by 42 U.S.C. § 1383(c) (3) (1992)). Substantial evidence is "more than a mere scintilla"; it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938)); Diaz v. Shalala, 59 F.3d 307, 1995 U.S. App. LEXIS 15316, 1995 WL 367078, *3-4 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991).

 The Commissioner has established a five step sequential evaluation process for evaluating disability claims. See 20 C.F.R. §§ 404.1520 and 416.920.

 
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers from such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience;.... Assuming the claimant does not have a listed impairment, the forth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.... The claimant bears the burden of proof as to the first four steps, while the [Commissioner] must prove the final one.

  Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also Diaz, 59 F.3d 307, 1995 U.S. App. LEXIS 15316, 1995 WL 367078 at *3 n.2.

 The ALJ properly followed the above process. He first found that the plaintiff had not engaged in substantial gainful activity since January 8, 1990. (R. 13). He then determined, based on the record before him, that while the plaintiff's impairments are considered "severe" as defined in 20 C.F.R. § 404.1521 and § 416.921, he does not have an impairment or combination of impairments that met or equaled any listed impairments. *fn5" (R. 13). The plaintiff's impairments are severe because they imposed "more than slight limitations on his ability to engage in basic work-related activities." (R. 13). The ALJ considered the plaintiff's history of alcohol and substance abuse and his psychological evaluation during his last detoxification at St. Vincent's Hospital from December 16, 1991 to January 6, 1992. (R. 13-14). He considered the plaintiff's testimony that he had been alcohol free for twenty-two months and was only receiving medical treatment for bronchitis. (R. 14.)

 Medical records indicated that the plaintiff was diagnosed with tuberculosis in January, 1990, but had been treated and that the disease no longer interfered with his ability to perform day to day activity or to engage in medium work activity as defined in 20 C.F.R. §§ 404.1567(c) and 416.967(c). *fn6" (R. 14, 16). The medical reports received by the ALJ also indicated that there was no evidence of any musculoskeletal impairment until June, 24, 1992. (R. 15). Since then, while plaintiff has been authorized to use a cane, ranges of motion of his spine and extremities were normal except for his feet, which both showed an ...


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