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FILOCOMO v. CHATER

November 7, 1996

DOMINICK FILOCOMO, Plaintiff, against SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.


The opinion of the court was delivered by: GERSHON

 GERSHON, United States District Judge:

 Plaintiff brings this action under Section 205(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final decision of the Commissioner of Social Security denying plaintiff's application for disability insurance benefits. Plaintiff and defendant each move for judgment on the pleadings, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure.

 This is the second time that plaintiff has brought his case before this court. In March of 1994, the court remanded the case to the Commissioner with a number of instructions, including the directive to follow the treating physician rule when reconsidering the opinions of plaintiff's physicians regarding his condition. See Filocomo v. Shalala, No. 93 CV 1004 (E.D.N.Y. March 7, 1994) (RD). *fn1" Because the Commissioner has once again failed to give the appropriate weight to the opinion of plaintiff's treating physicians, the denial of plaintiff's disability insurance benefits is reversed; and the case is remanded for a calculation of benefits.

 FACTS

 Plaintiff, Dominick Filocomo, worked as an electrician for twenty-two years before back and leg injuries caused him to stop working in 1982, when he was 39 years old. Plaintiff had injured his back eight years earlier in a work-related accident; and in 1981, while working for the New York City Transit Authority, he again sustained back injuries when he fell from a ladder onto his back and head. As a result of the 1981 accident, plaintiff was hospitalized twice for traction and placed on restricted duty at work. In June of 1982, the Medical Board of the New York City Employees' Retirement System determined that, as a result of an accidental injury sustained in city service, plaintiff should be retired on an Accident Disability as of May 26, 1982. It is undisputed that plaintiff met the special insured status requirements of the Act from May 26, 1982 through March 31, 1987. See 42 U.S.C. § 423; 20 C.F.R. §§ 404.101, 404.130.

 ANALYSIS

 A. Determination of Disability

 A claimant seeking disability insurance benefits is considered disabled if he is unable to engage in substantial gainful activity by reason of a physical or mental impairment that can be expected to last for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). The claimant's physical or mental impairment must be "of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy...." 42 U.S.C. § 423(d)(2)(A).

 The Secretary has established a five-step sequential process to facilitate the determination of disability. 20 C.F.R § 404.1520 The Second Circuit has articulated this process as follows:

 
[1] First, the Secretary considers whether the claimant is currently engaged in substantial gainful activity. [2] If he is not, the Secretary next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. [3] If the claimant has 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 Secretary will consider him disabled without considering vocational factors such as age, education, and work experience; the Secretary presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. [4] Assuming the claimant does not have a listed impairment, the fourth 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 Secretary then determines whether there is other work which the claimant could perform.

 Berry v. Schweiker 675 F.2d 464, 467 (2d Cir. 1982) (per curiam). The claimant bears the burden of proof as to the first four steps. Id. If the claimant establishes that his impairment prevents him from performing his past work, the burden shifts to the Commissioner to prove the last step. Id.; Bluvband v. Heckler, 730 F.2d 886, 891 (2d Cir. 1984).

 In this case, the ALJ found that plaintiff had met his burden of proof with regard to the first four steps delineated above. In other words, the ALJ concluded that plaintiff (1) is not currently engaged in substantial gainful activity; (2) has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities; (3) does not have an impairment which is listed in Appendix 1 of the regulations; and (4) is incapable of performing his past work. The ALJ then concluded that, although plaintiff cannot resume employment as an electrician, he is not "disabled" because, during the time that he met the insured status requirements of the Act, he could perform low-stress, sedentary jobs, such as "bench assembly; clerical and ...


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