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September 7, 1997

JOHN C. PORTER, Plaintiff,
SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: HECKMAN

 The parties have consented to have the undersigned conduct any and all further proceedings in this case, including the entry of final judgment, in accordance with 28 U.S.C. § 636(c). Presently before this court is a motion by the Commissioner of Social Security (the Commissioner) for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Item 8). Plaintiff has requested that the motion be taken under advisement without oral argument (Item 10). For the reasons that follow, the Commissioner's motion is granted.


 Plaintiff was born on February 16, 1956, and is currently 41 years old (T. at 93). *fn1" He attended school through the ninth grade and has been employed as a truck driver, maintenance worker and furnace fire man (T. at 147).

 Plaintiff first applied for disability benefits on January 14, 1993, claiming that he was disabled as of November 11, 1991 after suffering a gunshot wound to his right arm (T. at 93-95, 143). He has not worked since the date of his claimed disability (T. at 45, 143). Plaintiff's application was denied initially (T. at 96-98) and on reconsideration (T. at 133-35). He then requested a hearing before an Administrative Law Judge (ALJ), which was held on August 17, 1994 (T. at 39-92). At the hearing, plaintiff testified that his disability was the result of a combination of factors, which included chronic back pain from a herniated disc, limitation and pain of the right hand and arm from a gunshot wound, and chronic alcohol abuse.

 In a decision dated January 18, 1995, ALJ Karen H. Baker found that plaintiff was limited by an inability to lift or carry more than eight pounds with his right arm (T. at 24). Though ALJ Baker determined that this limitation precluded plaintiff from performing his past relevant work, she also found that he could still perform some types of light work for which a significant number of jobs exist in the national economy (Id). Some examples provided by a vocational expert included microfilm document preparer, surveillance system monitor, lens inserter and laundry classifier (T. at 86-87). Consequently, the ALJ found that plaintiff was not under a "disability" as defined in the Act (T. at 24).

 Plaintiff requested a review of the hearing decision, arguing that the ALJ had failed to consider plaintiffs back injury and that she had erroneously concluded that plaintiff was not an alcoholic (T. at 7-8). On October 27, 1995, the Appeals Council denied plaintiff's request for review, and ALJ Baker's findings became the final determination of the Commissioner (T. at 3-4).

 On January 14, 1993, plaintiff commenced this action seeking reversal or remand of the Commissioner's final determination (Item 1). He continues to claim that he suffers from a substance abuse disorder and multiple injuries and alleges that the Commissioner's determination that he was not disabled is not supported by substantial evidence or the applicable law. The government filed its motion for judgment on the pleadings on December 9, 1996. In a letter to the court dated January 9, 1997, plaintiff declined to submit a reply, stating that "in light of the enactment of Pub. L. 104-121," he would rest on the existing record.



 The Social Security Act states that "the findings of the [Commissioner] as to any fact, if supported by substantial evidence, shall be conclusive . . . ." 42 U.S.C. § 405(g) (1991). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion . . . ." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229, 83 L. Ed. 126, 59 S. Ct. 206 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 28 L. Ed. 2d 842, 91 S. Ct. 1420 (1971); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Under this standard, judicial review of the Commissioner's decision is limited, and the reviewing court may not try the case de novo or substitute its findings for those of the Commissioner. Richardson, supra, 402 U.S. at 401. The court's sole inquiry is "whether the record, read as a whole, yields such evidence as would allow a reasonable mind to accept the conclusions reached" by the Commissioner. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982). The Commissioner's determination cannot be upheld, however, when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Grey v. Heckler, 721 F.2d 41, 44 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

 In assessing plaintiff's claim that the Commissioner disregarded his back injury, the court must consider the evidence before the Commissioner at the time of the determination. At the administrative hearing, plaintiff testified that he had experienced pain in his back every day since he fell in 1978 (T. at 50, 61). According to plaintiff, a lower disk in his back sometimes "kicks out" when he squats or stoops over the wrong way, and that he must press it back into place (T. at 50).

 Plaintiff was treated monthly from November of 1991 through June of 1993 by Dr. Brezing (T. at 185). In a report to the New York State Department of Social Services dated June 11, 1993, Dr. Brezing diagnosed defendant as suffering from severe trauma, alcohol abuse, fracture of the right wrist, and right forearm pain due to heavy lifting (Id.). Dr. Brezing's report did not include any diagnosis of a back injury. According to Dr. Brezing, plaintiff displayed normal ranges of hip and lumbar motion and had no limitation in standing, walking, sitting, pushing or pulling (T. at 189, 191, 192). *fn2" Dr. Brezing limited plaintiff to occasional lifting and carrying of up to twenty pounds.

 Plaintiff was also examined by consultant Dr. Paul Akman on March 11, 1994 (T. at 212-21). At that time, plaintiff reported a history of lumbar spine injury in 1979, but stated that it doesn't bother him anymore (T. at 212-13). Dr. Akman stated that plaintiff could occasionally lift up to 20 pounds, and that his ability to sit, stand and walk was unaffected (T. at 217).

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