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August 4, 2003


The opinion of the court was delivered by: David Larimer, Chief Judge, District



This is an action brought pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("the Commissioner") that Anthony J. Iannopollo ("plaintiff) is not disabled under the Social Security Act, and therefore, is not entitled to Social Security disability insurance ("SSDI") benefits. Both plaintiff and the Commissioner have moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). As discussed below, the Court finds that the Commissioner's decision was based on legal error and, accordingly, remands the matter for further administrative proceedings. [ Page 2]


Plaintiff Anthony J. Iannopollo was born on September 23, 1956. (T. 23).*fn1 Claiming that he has been unable to work since October 26, 1999 due to left knee and lower back conditions and a mental impairment, he seeks SSDI benefits. He graduated from high school in 1975 and his previous work experience includes work as a gas station attendant, a newspaper deliverer and a driver for a grocery home delivery service. (T. 91, 104). He applied for SSDI benefits on April 10, 2001, alleging that he was disabled initially by an injury sustained to his left knee on October 26, 1999 while working for the grocery service. (T. 85). Plaintiff underwent arthroscopy on his left knee on October 26, 2000 at the recommendation of his treating physician, Dr. Olaf Lieberg. (T. 154-58, 223-24, 227, 229-31). The post-operative diagnosis was internal derangement*fn2 of the left knee, synovitis*fn3 with grade 2 to 3 chondromalacia*fn4 medial femoral condyle*fn5, grade 3 to 4 chondromalacia lateral tibial plateau, and grade 3 chondromalacia lateral femoral condyle. (T. 154). An MR1 performed on plaintiff's back on February 9, 2001, again at Dr. Lieberg's request, found [ Page 3]

mild disc degeneration without evident herniation or stenosis, but mild diffuse disc bulging at L4-5*fn6 and mild degenerative changes at L5-S1.*fn7 (T. 153). Plaintiff also was treated for anxiety attacks by his primary care physician, Dr. Mark Ryan, (T. 123, 125, 127, 137, 139, 142-43), and was assessed at Clifton Springs Hospital and Clinic Behavioral Health Services for dysthymia.*fn8 (T. 242-58).

Plaintiff's application for SSDI benefits was denied initially and upon reconsideration*fn9 by the Social Security Administration ("SSA"). (T. 48-52). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") and a hearing was held on November 13, 2001. (T. 20-47). The ALJ ruled that plaintiff was not entitled to SSDI benefits because he could perform the full range of sedentary work, and denied his claim on January 4, 2002. (T. 10-19). The ALJ's decision became the Commissioner's final decision on April 19, 2002 when the Appeals Council denied plaintiffs request for review. (T. 5-7). Plaintiff commenced this action on May 3, 2002, seeking review of the Commissioner's final decision pursuant to 42 U.S.C. § 405(g). [ Page 4]

Plaintiff filed a motion for judgment on the pleadings, contending that the ALJ erred in finding plaintiffs dysthymia and anxiety, or "mental impairment," to be nonsevere. In addition, plaintiff argues that the ALJ improperly concluded that he could perform the full range of sedentary work because he failed to consider plaintiff's nonexertional limitations and as such, application of medical-vocational rule 201.21 was legal error. Further, plaintiff argues that the ALJ did not properly assess his credibility. In her cross-motion for judgment on the pleadings, the Commissioner argues that the ALJ's decision is supported by substantial evidence and should be affirmed under 42 U.S.C. § 405(g).


A. The Standard for Determining Disability

A person is "disabled" under the Act when he is unable "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), 20 C.F.R. § 404.1505(a). In other words, he is disabled "if his physical or mental impairment is 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). A physical or mental impairment is "an impairment that results from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques" and that "must last or be expected to last for a continuous period of 12 months." 42 U.S.C. § 423(d)(3), 20 C.F.R. § 404.1508-. 1509. [ Page 5]

In determining whether plaintiff was entitled to receive SSDI benefits, the ALJ proceeded through the requisite five-step inquiry. See Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002) (discussing five-step process delineated in the relevant regulations); 20 C.F.R. § 404.1520. At the first step of this inquiry, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date, October 27, 1999. (T. 13). Next, the ALJ found that the medical evidence supported a finding that plaintiff's left knee derangement and degenerative back condition were medically determinable impairments. (T. 13). The left knee and back impairments were severe enough in combination to significantly limit plaintiff's ability to do basic work activities, but did not meet or equal the criteria listed in 20 C.F.R. pt. 404, subpt. P, app. 1. (T. 13). Plaintiff also alleged dysthymia and anxiety as further impairments, but the ALJ determined that, although those specific impairments are severe within the meaning of the Regulations, there is no indication that plaintiff's condition is severe or will become such for a twelve-month period as long as plaintiff continues to receive appropriate treatment. (T. 14).

The ALJ proceeded to the fourth step and determined that plaintiff did not have the residual functional capacity ("RFC") to return to his past relevant work. (T. 18). At the fifth and final stage of this process, the burden shifted to the Commissioner "to prove that the claimant is capable of performing `any other work.'" Schaal v, Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Perez v, Chater, 77 F.3d 41, 46 (2d Cir. 1996)). The ALJ applied medical-vocational rule 201.21, and [ Page 6]

determined that plaintiff could perform the full range of sedentary work.*fn10 (T. 18-19); 20 C.F.R. pt. 404, subpt. P, app. 2. Thus, the ALJ ...

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