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BANEKY v. APFEL

March 20, 1998

ROBERT BANEKY, Plaintiff, against KENNETH S. APFEL, Commissioner of Social Security, Defendant.1


The opinion of the court was delivered by: KAPLAN

 LEWIS A. KAPLAN, District Judge.

 Plaintiff Robert Baneky brings this action pursuant to 42 U.S.C. ยงยง 405(g) and 1383(c)(3) challenging the final determination of the Commissioner of Social Security ("Commissioner") denying his application for disability insurance benefits. The Commissioner denied the application on the ground that plaintiff neither suffered from an impairment listed in the regulations, nor an equivalent impairment, nor lacked the residual functional capacity to perform his past relevant work.

 Pending before the Court are plaintiff's motion for judgment on the administrative record and defendant's cross-motion for judgment on the pleadings. Magistrate Judge Douglas F. Eaton has filed a report and recommendation, dated March 3, 1998, recommending that the Commissioner's decision be affirmed because it is supported by substantial evidence. Plaintiff objects to the report and recommendation on the ground that "the record adequately discloses that the plaintiff does indeed have a condition which meets that of Section 12.05(c) of the 'listings of impairments' found at 20 C.F.R, Part 404, Subpart P, Appendix 1." *fn2"

 I.

 In assessing a claim for disability benefits, the Commissioner engages in a five-step process designed to determine whether a person has a "disability" within the meaning of the statute. *fn3" The first step considers whether the claimant is engaged in "substantial gainful activity." If so, then benefits are denied. *fn4" If not, the second step considers whether the claimant's impairment is "severe." If not, benefits are denied. *fn5" If so, the third step considers whether the impairment meets or equals a condition set forth in the "Listing of Impairments" contained in the regulations. *fn6" "These are impairments acknowledged by the Secretary to be of sufficient severity to preclude gainful employment." *fn7" If the impairment meets or equals a listed impairment, the claimant is "disabled" and is entitled to benefits, and the inquiry ends. If not, the fourth step examines the claimant's "residual functional capacity," which involves an analysis of the claimant's capacity to engage in basic work activities and a decision as to whether the claimant has the capacity to engage in his or her prior work. Benefits are denied if the claimant's residual functional capacity allows the claimant to perform his or her prior work. *fn8" If the claimant's residual functional capacity does not rise to the level required by his or her prior work, however, the claimant is entitled to benefits unless the Commissioner can demonstrate that the claimant, in light of his or her residual functional capacity, age, education, and work experience, has the capacity to perform "alternative occupations available in the national economy." *fn9"

 Applying the five-step sequential evaluation process to plaintiff's claim, the Administrative Law Judge ("ALJ") concluded at the first step that plaintiff "has not engaged in substantial gainful activity since 1992." *fn10" Proceeding to the second step, the ALJ weighed the significance of plaintiff's allegations of lower back pain, "emotional problems," and a learning disability. After reviewing the medical evidence as to each of these allegations, the ALJ simply concluded that plaintiff "has a severe impairment," although he did not specify which, if not all, of the impairments alleged by plaintiff warranted this result. *fn11"

 At the third step of the analysis, the ALJ concluded that plaintiff's "severe impairment" did not meet or equal a listed impairment. *fn12" The ALJ concluded also that plaintiff retained the residual functional capacity to perform his past relevant work. *fn13" The ALJ therefore denied plaintiff's claim.

 II.

 Judicial review of the Commissioner's determination is strictly limited. The Court may set aside the Commissioner's determination solely when it is based upon legal error or is not supported by substantial evidence. *fn14"

 Plaintiff asserts that the Commissioner erred at step three of the five-step analysis in that there is not substantial evidence in the record to support the conclusion that his impairment does not meet or equal a listed impairment. Intertwined with this evidentiary point is the argument that the Commissioner employed an incorrect legal standard in determining whether plaintiff's impairment(s) met the requirements of Section 12.05(c).

 Section 12.05(c) applies when two elements are met: the claimant must have (1) "a valid verbal, performance, or full scale IQ of 60 through 70" and (2) "a physical or other mental impairment imposing additional and significant work-related limitations of function." *fn15" Plaintiff contends that his verbal IQ scores indisputably satisfy the first prong of the Section 12.05(c) test and that either his lower back pain or his other mental and emotional problems are sufficient to satisfy the second. In support of this argument, plaintiff asserts that the ALJ employed the wrong legal standard in assessing significance under the second prong.

 The ALJ's ruling contains no discussion of the legal standard employed in determining whether plaintiff's impairment satisfies Section 12.05(c). In fact, it is not clear from the ruling whether Section 12.05(c) was specifically considered at all. On the other hand, the magistrate judge's report and recommendation concludes that there is substantial evidence in the record to support the Commissioner's decision that plaintiff's "work-related functions are not significantly limited by his back pain." *fn16" Similarly, the report and recommendation concludes that plaintiff's "other mental problems," aside from his "moderately low IQ," do not "significantly limit his work-related functions." *fn17" The report and recommendation does not, however, address the legal standard for assessing "significance" as that term is used in Section 12.05(c). Nor do the Commissioner's motion papers shed any light on the subject.

 The Commissioner has not promulgated regulations explaining the "significance" requirement of the second prong of Section l2.05(c). *fn18" Nor has the Second ...


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