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GERACITANO v. CALLAHAN

October 1, 1997

PHILLIP GERACITANO, Plaintiff,
v.
JOHN J. CALLAHAN, Ph.D., ACTING COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION1, 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 judgement, in accordance with 28 U.S.C. § 636(c). Plaintiff Phillip Geracitano (Geracitano), disputes the denial of Social Security disability benefits by the Commissioner of Social Security (the Commissioner). Plaintiff initiated this action seeking reversal or remand of the Commissioner's decision. Both parties moved for judgment on the pleadings pursuant to Fed. R. Civ. P. 12(c). For the following reasons, the Commissioner's motion is denied. The matter is remanded to the Commissioner for further administrative proceedings.

 BACKGROUND

 Plaintiff Phillip Geracitano was born on February 16, 1951 and is currently forty-five years old. (T. 133). He is a high school graduate who obtained an accounting degree from Kelly Business Institute. He worked as a clerk and an office manager at a chemical plant, a sales representative and as a security guard. (T. 164). Geracitano stopped working as of September 9, 1992. (T. 160).

 Plaintiff applied for disability benefits on February 24, 1993 due to a right knee injury ("traumatic arthritis in knee"). (T. 133-136, 160). He underwent right knee surgery in December 1992, and continued to have complaints of pain in both knees. (T. 187 - 189, 224 225). The Social Security Administration (SSA) denied plaintiff's application initially and upon remand. After a hearing, Administrative Law Judge (ALJ) Eric L. Glazer issued a decision on January 24, 1994 in which he found that plaintiff was entitled to a period of disability from September 9, 1992 through September 30, 1993, but not thereafter. (T.42). The ALJ found that plaintiff's impairments improved so that after September 30, he could perform a full range of sedentary work and was therefore no longer disabled. (T. 41).

 Geracitano appealed this decision, and SSA's Appeals Council remanded for additional proceedings. (T. 215-216). The Appeals Council ordered the ALJ to

 
. Contact any treating sources since February 1993 or obtain an orthopedic consultative examination with a medical source statement. The Administrative Law Judge will then further evaluate the issues of disability and duration.
 
. Evaluate, if necessary, the issue of disability cessation in accordance with the regulatory requirements.
 
. Evaluate subjective complaints in accordance with the regulatory requirements.
 
. Obtain, if necessary, vocational expert evidence as to the exertional requirements of the claimant's past relevant work as generally performed in the national economy.

 (T. 216).

 As a result, the ALJ held a new hearing and issued a new decision on April 28, 1995. (T. 21-27). The ALJ found that plaintiff was never disabled under the Act. (T. 27). The ALJ found that Geracitano was capable of performing his past relevant work as an accounting clerk and office manager and therefore was not disabled. This second decision only mentioned the ALJ's prior decision in an introductory paragraph, and made no attempt to explain the inconsistency between the two decisions.

 Plaintiff again appealed to SSA's Appeals Council. The ALJ's finding became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. On December 9, 1996, plaintiff filed this action seeking reversal or remand of the Commissioner's decision. (Item # 1).

 The Commissioner contends that the decision finding plaintiff not disabled is supported by substantial evidence and should be affirmed. Plaintiff argues that the "treating physician" rule mandates a finding of disability, that the ALJ failed to evaluate properly the effect of plaintiff's pain on his ability to work, and that the Court should remand the case to consider new evidence.

 DISCUSSION

 I. Judicial Review

 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). Substantial evidence is that which a "reasonable mind might accept as adequate to support a conclusion...." Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229, 59 S. Ct. 206, 217, 83 L. Ed. 126, (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842; 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, 91 S. Ct. at 1427. 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 determining disability, the Commissioner instructs adjudicators to follow a five-step sequence as stated at 20 C.F.R. § 404.1520:

 
1. An individual who is working and engaging in substantial gainful activity will not be found to be disabled ...

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