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King v. Astrue

March 21, 2008


The opinion of the court was delivered by: John T. Curtin United States District Judge

Plaintiff Adelheidt King initiated this action pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security ("Commissioner") denying her application for Social Security disability insurance ("SSDI") and supplemental security income ("SSI") benefits. The plaintiff has filed a motion for judgment on the pleadings (Item 7), and the Commissioner has cross-moved for the same relief (Item 8), pursuant to Fed. R. Civ. P 12(c). For the following reasons, the Commissioner's motion is denied, the plaintiff's motion is granted, and the matter is remanded for further proceedings.


Plaintiff was born on June 18, 1945 (Tr. 465).*fn2 She applied for Social Security benefits on February 20, 2001, alleging disability since June 29, 2000 due to depression, panic disorder, and hearing loss (Tr. 114). Plaintiff's application was denied initially on October 4, 2001 (Tr. 22-27). Plaintiff requested a hearing, which was held on June 11, 2002 before Administrative Law Judge ("ALJ") Robert T. Harvey (Tr. 494-526). In a decision dated July 24, 2002, the ALJ determined that plaintiff was not disabled and not entitled to SSDI or SSI (Tr. 52-59). This decision was vacated by the Appeals Council on March 22, 2005 and the matter was remanded to the ALJ to obtain evidence from a vocational expert (Tr. 73-75). Another hearing was conducted on July 13, 2004, again before ALJ Harvey (Tr. 463-493). Plaintiff testified at both hearings and was assisted by Ms. Jo Evelyn Smith, a paralegal. Since October 14, 2004 plaintiff has been represented by attorney Kenneth Hiller.

In a decision dated August 26, 2004, the ALJ again found that plaintiff was not under a disability within the meaning of the Social Security Act (Tr. 13-19). Following the sequential evaluation process outlined in the Social Security Administration Regulations (see 20 C.F.R. § 404.1520), the ALJ reviewed the medical evidence and determined that plaintiff's impairments, while severe, did not meet or equal the criteria of an impairment listed in the Regulations at 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). The ALJ considered plaintiff's allegations and testimony regarding her functional limitations, but found plaintiff to be "not totally credible" in this regard (Tr. 18). Based on the testimony of vocational expert ("VE") Timothy Janikowski, the ALJ found that plaintiff is still capable of performing her past work as a cleaner, bakery clerk, and video attendant which, when considered along with the plaintiff's age of 59 years old, and her eighth grade education, led to the conclusion that there are a significant number of jobs in the national economy that plaintiff could perform (Tr. 17). The ALJ's decision became the Commissioner's final determination on August 24, 2006 when the Appeals Council denied plaintiff's request for review (Tr. 5).

Plaintiff filed this action on October19, 2006, pursuant to the judicial review provision of 42 U.S.C. § 405 (g) (Item 1). On May 11, 2007, the plaintiff filed a motion for judgment on the pleadings on the grounds that the ALJ failed to recontact her treating physician to complete an assessment of her RFC and therefore failed to fully develop the record (Item 7). Defendant filed a cross motion for the same relief, arguing that the ALJ's determination must be upheld because it is supported by substantial evidence in the record (Item 8). For the reasons that follow, the Commissioner's motion is denied, and the plaintiff's motion is granted.


I. Scope of Judicial Review

Under the Social Security Act, a person is entitled to Social Security disability benefits when he or she 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); Melville v. Apfel, 198 F.3d 45, 50 (2d Cir. 1999). Such a "physical or mental impairment" must be demonstrable by medically acceptable clinical and laboratory diagnostic techniques. 42 U.S.C. § 423(d)(3). Determinations of disability are based on objective medical facts, diagnoses, or medical opinions inferable from these facts, subjective complaints of pain or disability, and educational background, age, and work experience. Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983); Fishburn v. Sullivan, 802 F. Supp. 1018, 1023 (S.D.N.Y. 1992).

The Act states that upon district court review of the Commissioner's decision, "[t]he 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 defined as evidence which "'a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Tejada v. Apfel, 167 F.3d 770, 773-74 (2d Cir. 1999). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may neither try the case de novo nor substitute its findings for those of the Commissioner. Richardson, 402 U.S. at 401. "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." Winkelsas v. Apfel, 2000 WL 575513, at *2 (W.D.N.Y. February 14, 2000) (quoting Sample v. Schweiker, 694 F.2d 639, 642 (2d Cir. 1982).

However, "'[b]efore the insulation of the substantial evidence test comes into play, it must first be determined that the facts of a particular case have been evaluated in light of correct legal standards.'" Gartmann v. Sec'y of Health and Human Servs., 633 F.Supp. 671, 680 (E.D.N.Y. 1986) (quoting Klofta v. Mathews, 418 F.Supp. 1139, 1141 (E.D.Wis. 1976). The Commissioner's determination cannot be upheld when it is based on an erroneous view of the law that improperly disregards highly probative evidence. Tejada, 167 F.3d at 773.

II. Standards for Determining Eligibility for Disability Benefits

The regulations set forth a five-step process for the ALJ to follow in evaluating disability claims. See 20 C.F.R. §404.1520. First, the ALJ must determine whether the claimant is presently engaged in substantial gainful activity. If the claimant is not, the ALJ must decide if the claimant has a "severe" impairment, which is an impairment or combination of impairments that "significantly limits [the claimant's] physical or mental ability to do basic work activities . . . ." 20 C.F.R. § 404.1520(c). If the claimant's impairment is severe, the ALJ then determines whether it meets or equals the criteria of an impairment found in 20 C.F.R. § 404, Subpart P, Appendix 1 (the "Listings"). If the impairment meets or equals a listed impairment, the claimant will be found to be disabled. If the claimant does not have a listed impairment, the fourth step requires the ALJ to determine if, notwithstanding the impairment, the claimant is capable of performing his or her past relevant work. If the claimant is not capable of performing the past relevant work, the fifth step requires that the ALJ determine whether the claimant is capable of performing other work which exists in the national economy, considering the claimant's age, education, past work experience, and residual functional capacity ("RFC"), based on a series of charts provided in the regulations at 20 C.F.R. § 404, Subpart P, Appendix 2 (the "Grids"). See Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000); Reyes v. Massanari, 2002 WL 856459, at *3 (S.D.N.Y. April 2, 2002).

The claimant bears the burden of proof with respect to the first four steps of the analysis. If the claimant demonstrates an inability to perform past work, the burden shifts to the Commissioner to show that there exists other work that the claimant can perform. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

In this case, the ALJ determined that plaintiff had not engaged in substantial gainful employment activity since at least June 29, 2000, the date of her alleged disability onset (T. 18). In reviewing plaintiff's medical records, the ALJ found that plaintiff has a history of affective disorder, anxiety disorder, panic disorder, moderate hearing loss in the right ear, and profound hearing loss in the left ear. The ALJ found that these impairments, while "severe," do not meet or equal the requirements of the Listings (T. 14). Proceeding to the fourth step of the sequential evaluation process, the ALJ, relying on testimony from the vocational expert, found that plaintiff is capable of performing her previous relevant work in unskilled positions as a bakery clerk and video attendant (T. 18). The ALJ determined that plaintiff has the "residual functional capacity to lift/carry/push/pull 100 pounds occasionally and 50 pounds frequently; ...

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