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GOLUBCHICK v. BARNHART

August 9, 2004.

STEVEN GOLUBCHICK, Plaintiff,
v.
JO ANNE B. BARNHART, COMMISSIONER OF SOCIAL SECURITY, Defendant.



The opinion of the court was delivered by: DAVID TRAGER, District Judge

MEMORANDUM AND ORDER

Plaintiff, Steven Golubchick ("plaintiff") brought this action pursuant to the Social Security Act, 42 U.S.C. § 405(g) ("the Act"), seeking review of a final decision of the Commissioner of Social Security ("Commissioner") finding that he was not entitled to disability insurance benefits under the Act. The Commissioner requests that her decision be reversed and plaintiff's claim be remanded for further administrative proceedings under 42 U.S.C. § 405(g). Plaintiff cross-moves for reversal and award of benefits. For the reasons set forth below, plaintiff's request that the court reverse the Commissioner's decision and award benefits commencing February 3, 1997 is granted. The Commissioner's decision should be remanded for further proceedings, before a new ALJ, in order to determine whether plaintiff was disabled during the period of August 10, 1995 until February 3, 1997, and for calculation of benefits.

Procedural History

  Plaintiff filed an application for a Period of Disability and Disability Insurance benefits under Title II and Part A of Title XVIII of the Social Security Act on October 29, 1996, claiming to have been unable to work since August 10, 1995. (Tr. 190-93). Plaintiff claimed disability resulting from osteoarthritis, spinal stenosis with peripheral neuropathy, seizures, and clinical depression with alcohol and drug addiction. (Tr. 211). On June 3, 1997, the application was initially denied (Tr. 178, 180-82). Plaintiff requested reconsideration. The Social Security Administration had plaintiff's claim reviewed by a physician and disability examiner of the State agency. Plaintiff's request was denied again. (Tr. 179, 184-85). Plaintiff then requested a hearing before an administrative law judge ("ALJ") of the Office of Hearings and Appeals which was held on May 6, 1998. (Tr. 59-121; 186). Plaintiff, however, was not present at the first hearing and a second hearing was held on May 28, 1998. (Tr. 122). After the hearing held on May 28, 1998, plaintiff asked the Appeals Council to review the decision. The Appeals Council granted plaintiff's request for review under the error of law provision of the Social Security Administration regulations, 20 C.F.R. § 404.970. (Tr. 25). The Appeals Council vacated the hearing decision and remanded the case to an ALJ. (Id.) The ALJ asked that additional evidence pertinent to plaintiff's case be submitted. (Id.) On August 20, 1998, the ALJ, before whom plaintiff and his attorney appeared, considered the case de novo, and found that plaintiff was not under a disability. (Tr. 30-49). The Appeals Council granted plaintiff's request for review on August 1, 2001, and remanded the case to the ALJ for failure to proffer evidence to plaintiff's attorney. (Tr. 24-26). On January 22, 2002, after proffering the relevant evidence to plaintiff's attorney, the ALJ issued a decision denying plaintiff's claim. (Tr. 12-23). On May 23, 2003, the decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied plaintiff's request for review. (Tr. 5-8). This action followed.

  Background

  Plaintiff, Steven Golubchick, was born on January 27, 1947. (Tr. 124, 190). He completed high school (Tr. 124-25, 215), graduated from City College with a degree in film production (Tr. 124-25, 215), and served in the air force where he worked as a weather observer. (Tr. 127). Between 1986 and 1995, plaintiff worked as a customer service representative. (Tr. 134-35). In this capacity, plaintiff took orders and scheduled jobs over the telephone. (Tr. 135). Between February and July 1995, plaintiff worked as a night shift manager doing pre-press production work. (Tr. 129). In this capacity, plaintiff worked on a computer preparing negatives for printing. (Tr. 129-30). He left his job in July 1995 to undergo neck surgery. (Tr. 131).

  Plaintiff testified that he did not return to work after recovering from neck surgery because he suffered from a "breakdown." (Tr. 132). Plaintiff stated that he did not return to work because he lost control of his hands, suffered from numbness in his fingers, and could not feel. Furthermore, he testified that he was also suffering from a mental breakdown. (Id.) According to plaintiff, he was replaced at his previous job (Tr. 133) and tried to obtain work at a "freelance place." (Id.) Plaintiff did not secure work and claimed that it was because he had numbness in his hands and could not "handle the keyboard." (Tr. 134). Plaintiff did not attempt to return to his job as a customer service representative because of stress, heavy drinking, and "a problem with pills." (Tr. 136). He testified that the only work he had performed since July 1995 was street vending. This work only lasted a day or two and according to plaintiff, he "couldn't take it." (Tr. 128).

  According to plaintiff, he stopped drinking in November 1995 and attended an outpatient detoxification program at VA Hospital for his drug and alcohol abuse. (Tr. 144). Plaintiff stated that he had a mental breakdown and was hospitalized at the Brooklyn VA Hospital in 1997. (Tr. 145). He also reported that he suffered from short-term memory loss and would forget previous conversations he had taken part in. (Tr. 172).

  Plaintiff reported that he lived alone. (Tr. 126). He did not have a driver's license and used public transportation. (Tr. 126-27). According to plaintiff, he would spend his days shopping, going to program, watching television, cleaning his apartment, and cooking. (Tr. 169-70). In October 1997, he was approved for placement in a supported housing program and a supportive single room occupancy residence because he was homeless and considered mentally ill. (Tr. 353-54).

  Discussion

  (1)

  Standard for Finding Disability

  To be "disabled" under the Act and therefore entitled to benefits, a claimant must demonstrate 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). Furthermore, an individual's impairment must be "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).

  The Social Security Administration has promulgated a five step procedure for evaluating disability claims. 20 C.F.R. § 404.1520. This Circuit has implemented that procedure as follows:
First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform. Rosa v. Callahan, 168 F.3d 72 (2d Cir. 1999).
  In his January 22, 2002 decision, the ALJ found that plaintiff was "not `disabled' within the meaning of the Social Security Act and Regulations [and] therefore not entitled to a Period of Disability Insurance Benefits, based on his application filed October 29, 1996." (Tr. 16). The ALJ reached that conclusion based on the following findings: (1) there was no evidence that plaintiff engaged in substantial gainful activity after August 10, 1995, the alleged disability onset date, (2) ...

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