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December 30, 2002


The opinion of the court was delivered by: VICTOR Marrero, United States District Judge


Plaintiff Rolando Rebull ("Rebull") brings this action under sections 205(g) and 1631(c)(3) of the Social Security Act (the "Act"), as amended, 42 U.S.C. § 405(g) and 1383(c)(3), to review a final determination of the Commissioner of Social Security (the "Commissioner") denying his Application for Supplemental Security Income dated October 15, 1996 (the "Application") filed with the Social Security Administration (the "SSA") pursuant to Title XVI of the Act, 42 U.S.C. § 1381 et seq. Rebull alleges errors entitling him to a new administrative hearing. The Commissioner disagrees. Rebull and the Commissioner have filed a motion and cross-motion, respectively, for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons discussed below, Rebull's motion is DENIED and the Commissioner's motion is GRANTED.


Rebull filed his Application at the age of 58.*fn1 He is a Cuban immigrant who came to the United States in 1956 at the age of 18. Rebull worked steadily from 1956 through 1985, generally as a bartender or waiter, and, in these years, he married and had a child. He continued to work with some irregularity through 1990 but has not worker since then.

Rebull has been diagnosed with panic disorder with agoraphobia by Dr. Fiona Graham of the Metropolitan Center for Mental Health in New York, New York ("MCMH"). He enrolled at MCMH on October 11, 1996 for treatment for anxiety associated with conditions including distanced travel and crowded busses, subways, and elevators, that he believed impaired his ability to commute sufficiently for purposes of employment. He also filed his Application on this basis on October 15, 1996.

Rebull received counseling and drug therapy at MCMH consisting of Anafranil, and his condition improved as a result. His panic attack ended and his anxiety became less intense. By April 1998, he no longer took Anafranil regularly and experiences no relapse in his condition. In September 1998, Rebull discontinued treatment and was officially discharged the following month. MCMH records, including Dr. Graham's treatment notes, were submitted to the SSA for consideration as it reviewed Rebull's Application.

Rebull filed his Application on October 15, 1996 with the SSA. On December 27, 1996, the SSA denied Rebull's Application. Rebull requested a reconsideration, which was denied on June 23, 1997. Rebull then requested an administrative hearing, which was conducted before Administrative Law Judge Mark Sochaczewsky (the "ALJ") on May 19, 1998. An attorney was appointed to represent Rebull at this hearing. After considering the evidence, including Rebull's testimony, MCMH records that included Dr. Graham's treatment notes, and reports from SSA consulting physicians Alain DelaChapelle and Ellis Charles, the ALJ concluded in a Decision dated July 29, 1998 (the "SSA Decision")*fn2 that Rebull suffered from a psychiatric condition but nonetheless possessed the residual functional capacity to perform past relevant work. Accordingly, the ALJ concluded that Rebull was not entitled to supplemental social security income. This disposition became final when the SSA Appeals Council denied Rebull's request for further administrative review on October 19, 2000. Rebull seeks from this Court judicial review of the Commissioner's determination, alleging errors entitling him to a new administrative hearing. The Commissioner disputes the existence of any such errors. For the reasons discussed below, Rebull's motion for judgment pursuant to Rule 12(c) is DENIED and that of the Commissioner is GRANTED.



This Court reviews the finding and decision of the ALJ under the "substantial evidence" standard. see 42 U.S.C. § 405(g); Richardson v. Peralez, 402 U.S. 389, 401 (1971). Substantial evidence is "more than a scintilla. It means such relevant evidence as a reasoable mind might accept as adequate to support a conclusion." Richardson, 402 U.S. AT 401 (citation omitted). If the Court finds that there is substantial evidence to support the Commissioner's decision, that decision must be upheld, even if there also is substantial evidence for the plaintiff's position. See DeChirico b. Callahan, 134 F.3d 1177, 1182 2nd Cir. 1998); Alston v. Sullivan, 904 F.2d 122, 126 (2nd Cir. 1990).

The Act defines "disability" as an

inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months . . . .

42 U.S.C. § 423 (d)(1)(A). The Second Circuit has explained that when assessing an applicant's claim, the ALJ must consider the following information: (1) objective medical facts and clinical findings; (2) diagnoses and medical opinions of examining physician; (3) subjective evidence of pain and disability to which the claimant or other testify; and (4) the claimant's age, educational background, and work experience. See Bluvband v. Heckler, 730 F.2d 886, 891 (2nd Cir. 1984); Monquer v. Heckler, 722 F.2d 1033, 1037 (2nd Cir 1983); see also Morillo v. Apfel, 150 F. Supp.2d 540, 545 (S.D.N.Y. 2001).

The ALJ assesses an applicant's claim for supplemental security income according to a five-step process dictated by 20 C.F.R. § 404.1520. First, the ALJ must determine whether the claimant is engaged an substantial gainful activity. If not, at step two, the ALJ asks whether the claimant has a severe impairment" which significantly limits his physical or mental ability to perform basic work activities. Third, if the ALJ finds a "severe impairment" that is listed in Appendix 1 of the SSA regulations, there is a presumption of disability. If the "severe impairment" is not contained in Appendix 1, the ALJ must determine whether the claimant has the residual functional capacity to perform past work. Finally, at step five, if the claimant is unable to perform past work, the ALJ determines whether there is other work that be is capable of performing. The claimant has the burden of proving the requirements of the first four steps and, if satisfied, the burden shifts to the Commissioner at step five. See Perez v. Chater, 77 F.3d 41, 46 (2nd Cir. 1996).

Additionally, this case involes and issue of doctor credibility. The "treating physician" rule, applicable in such cases, requires the ALJ to accord more weight to the opinions of treating physicians if: (1) the treating source's opinion on the issue of the nature and severity of the plaintiff's impairment is well-supported by medically acceptable clinical and laboratory diagnostic techniques, and (2) is not inconsistent with the other substantial evidence in the record. If the ALJ does not give controlling weight to a treating source's opinion, the degree of weight will be determined based on factors that include: (1) the length of the treatment relationship and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the degree to which the medical source supported his opinion; (4) the degree of consistency between the opinion and the record as a whole; (5) whether the opinion is given by a specialist; and (6) other ...

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