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Pozzouli v. Astrue

August 28, 2008

WILLIAM J. POZZOULI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



DECISION AND ORDER

Introduction

1. Plaintiff William J. Pozzouli challenges an Administrative Law Judge's ("ALJ") determination that he is not entitled to supplemental security income ("SSI") and disability insurance benefits ("DIB") under the Social Security Act ("the Act"). Plaintiff alleges he has been disabled since April 27, 1995, because of severe musculoskeletal, respiratory, and stress-related mental impairments. Plaintiff has met the disability insured status requirements of the Act at all times on or before the date of the ALJ's decision.

Procedural History

2. Plaintiff filed an application for SSI and DIB on June 6, 2000, alleging an onset of disability of April 27, 1995. His application was denied initially and, under the prototype model of handling claims without requiring a reconsideration step, Plaintiff was permitted to appeal directly to the ALJ. See 65 Fed. Reg. 81553 (Dec. 26, 2000). Plaintiff filed a timely request for a hearing before an ALJ, and on September 14, 2001, Plaintiff appeared pro se, and testified before ALJ J. Lawson Brown. The ALJ considered the case de novo and on December 21, 2001, issued a decision finding that Plaintiff was not disabled. Plaintiff requested the Appeals Council review the ALJ's decision on February 15, 2002. On April 25, 2002, the Appeals Council denied Plaintiff's request for review.

Plaintiff filed a subsequent application for SSI benefits on April 18, 2003. On January 12, 2004, ALJ Robert Wright issued a fully favorable decision on that application, and found Plaintiff disabled as April 18, 2003. In a letter dated March 16, 2004, Plaintiff's attorney appealed that portionof ALJ's Wright's decision declining to re-open Plaintiff's prior application for SSI and DIB dated June 6, 2000, and requested that the Appeals Council reopen, or reconsider, ALJ Brown's decision of December 21, 2001.

On March 2, 2007, the Appeals Council notified Plaintiff it had set aside its earlier decision of April 25, 2002, denying Plaintiff's request for review of the hearing decision dated December 21, 2001, in order to consider additional information submitted by Plaintiff. The Appeals Council advised Plaintiff it had reviewed the additional information, but found no reason under the rules governing Appeals Council actions to review ALJ Brown's decision of December 21, 2001. Further, the Appeals Council notified Plaintiff in its letter of March 2, 2007, that it found no reason to review or disturb the fully favorable decision of January 12, 2004.

3. On April 17, 2007, Plaintiff filed a Civil Complaint challenging Defendant's final decision and requesting the Court review the decision of the ALJ pursuant to Section 205(g) and 1631(c) (3) of the Act, modify the decision of Defendant, and grant SSI or DIB benefits to Plaintiff.*fn1 The Defendant filed an answer to Plaintiff's complaint on October 4, 2007, requesting the Court todismiss Plaintiff's complaint. Plaintiff submitted Plaintiff's Brief requesting that the Commissioner reverse and remand the ALJ's decision on January 17, 2008. On March 17, 2008, Defendant filed a Memorandum of Law in Support of Defendant's Motion for Judgment on the Pleadings*fn2 pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. After full briefing, the Court deemed oral argument unnecessary and took the motions under advisement.

Discussion

Legal Standard and Scope of Review

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § 405(g), 1383 (c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). "Substantial evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427, 28 L.Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S.Ct. 2287, 2291, 96 L.Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below:

First, the [Commissioner] considers whether the claimant is currently engaged 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 active-ties. If the claimant has 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; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. 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.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam); see also Rosa v. Callahan, 168 F.3d 72,77 (2d Cir. 1999); 20 C.F.R. § 404.1520.

8. While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 1954, 76 L.Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to factual information as well as the five-step process set forth above: (1) Plaintiff last met the disability insured status requirements of the Act on December 31,1999 and has not engaged in substantial gainful activity since his alleged onset of disability on April 27, 1995 (R. at 24);*fn3 (2) Since April 27, 1995, Plaintiff has suffered from severe musculoskeletal impairments which fail to meet or equal the level of severity of any disabling condition contained in Appendix 1, Subpart P of the Social Security Regulations No. 4 (R. at 24); (3) Since April 27, 1995, Plaintiff has been unable to perform his past relevant work as a welder and machinist, since Plaintiff is no longer capable of meeting the very heavy exertional demands required by those occupations (R. at 24); (4) Since April 27, 1995, Plaintiff has been limited to medium work activity, with restrictions on very heavy lifting. Support for this conclusion can be found in Exhibits 1F through 14F (R. at 24); (5) Plaintiff, who is 44 years old, has a 12th grade education and semi-skilled past relevant work experience (R. at 24); and (6) Given the Plaintiff's residual functional capacity and vocational background, Rule 203.29 of Appendix 2, Subpart P of Social Security Regulations No. 4 requires a finding of not disabled (R. at 24). Ultimately, the ALJ determined Plaintiff was not entitled supplemental security income benefits, or to a period of disability and disability insurance benefits, as set forth in sections 216(i) and 223(d) of the Social Security Act (R. at 24).

Plaintiff's Allegations

10. Plaintiff alleges three challenges to the Commissioner's decision that Plaintiff was not disabled during the relevant time frame for his June 6, 2000, claim. See Plaintiff's Brief, pp. 1. The primary theme of Plaintiff's challenges is that the unfavorable decision of ALJ Brown published on December 21, 2001, is not based on the substantial evidence of record because the evidence considered by ALJ Wright in his fully favorable decision of June 12, 2004, was not used as a basis by either ALJ Wright or by the Appeals Council to re-open Plaintiff's earlier SSI and DIB claim*fn4 . Thus, Plaintiff argues in his brief that all available evidence was not used by ALJ Wright and the Appeals Council to establish that Plaintiff actually had an earlier onset of disability than was recognized in ALJ Wright's decision. See Plaintiff's Brief, pp. 3-7. Plaintiff claims (1) new and material evidence was submitted to the Appeals Council and to ALJ Wright, who wrote the fully favorable January 12, 2004 decision, and this new and material evidencewarranted re-opening of the unfavorable December 21, 2000 decision of ALJ Brown, (2) ALJ Wright and the Appeals Council were required to determine the onset date of Plaintiff's physical and mental impairments, and (3) the Appeals Council failed to consolidate Plaintiff's records, and to consider the totality of the evidence in his records, from his June 6, 2000 application for SSI and DIB, and his April 18, 2003 application for SSI, when denying his request to re-open the earlier of the two claims. Each of Plaintiff's challenges will be discussed in sequence below.

Plaintiff's First Challenge: New and Material Evidence Was Submitted to the Appeals Council, and to the ALJ Who Decided Plaintiff's Later Claim, and ThisWarranted Reopening of Plaintiff's June 6, 2000 Claim

11. Plaintiff alleges both the Appeals Council and ALJ Wright erred by failing to consider new and material evidence submitted by Plaintiff with a request to re-open his June 6, 2000 claim that was unfavorably decided by ALJ Brown, and by failing to vacate ALJ Brown's decision and remand the matter for further administrative proceedings. See Plaintiff's Brief, pp. 1, 3-6. Plaintiff avers the evidence submitted in connection with his April 18, 2003 application for benefits was new and material to Commissioner's December 21, 2001 unfavorable decision on the earlier application. Plaintiff's broad challenge against both the ALJ and the Appeals Council requires the Court to consider Plaintiff's claims in light of the Commissioner's rules governingthe Appeals Council with respect to new and relevant evidence and the reopening of cases, and the rules that pertain to the ALJ with respect to the same.

Given the Commissioner's rules, neither the favorable decision of ALJ Wright on January 12, 2004, nor the decision of the Appeals Council not to re-open the earlier claim for benefits, is subject to judicial review. Plaintiff's civil action before the Court may challenge only the determination of the ALJ that Plaintiff was not under a disability during the relevant time frame, and not the failure of the Appeals Council to remand the case for further administrative proceedings based on Plaintiff's submission of what he believes to be new and relevant evidence. See 42 U.S.C. § 405(g); see also Califano v. Sanders, 430 U.S. 99, 108 (1977). Except in two very specific instances, Plaintiff's civil action must necessarily be directed at the decision of the ALJ, and not the failure of the Appeals Council to remand for further administrative proceedings. Id. The two instances in which a federal court may review the Commissioner's decision not to re-open an SSI or DIB application occur when the Commissioner has constructively re-opened an application, or when there is a constitutional claim. See Bynum v. Barnhart, 336 F.3d 172, 180-181 (2d Cir. 2003).

In this matter, the January 12, 2004 decision of ALJ Wright, which arose out of Plaintiff's April 18, 2003 application for SSI benefits, was fully favorable to Plaintiff. Further, it is clear from ALJ Wright's decision that he did not re-open the record pertaining to the December 21, 2001 decision of ALJ Brown. See Plaintiff's Brief, Exhibit A (Decision of ALJ Wright). In his decision, ALJ Wright stated, ".the claimant's current application for supplemental security income was filed in April 2003, five years after his initial denial in January 1998. Therefore his prior application is unable to be reopened, as it exceeds the two to four year re-opening ruling. In addition, I find that new and material evidence does not exist to warrant re-opening of the claimant's prior applications."*fn5 Id. Plaintiff seems to advocate in his brief that since ALJ Wright found Plaintiff disabled based on treating source reports that suggestingthe onset of Plaintiff's mental and physical impairments may have occurred on or before the relevant time frame for his June 6, 2000 claim, ALJ Wright had constructively re-opened Plaintiff's earlier claim. See Plaintiff's Brief, pp. 3-6. Thus, Plaintiff's argues the ALJ had an obligation to consider this evidence along with the evidence from Plaintiff's earlier claim in order to establish an actual onset of disability date. Id. However, absent any indicationthat ALJ Wright reviewed Plaintiff's earlier claim, together with therecord of that claim, the Courtcannot concludethat that he constructively reopened Plaintiff's June 6, 2000 application for SSI and DIB.See Byam v. Barnhart, 336 F.3d 172, 180-181 (2d Cir. 2003). ("If the Commissioner 'reviews the entire record and renders a decision on the merits, the earlier decision will be deemed to have been reopened, and any claim of administrative res judicata to have been waived' and thus, 'the claim is ... subject to judicial review.'") Malave v. Sullivan, 777 F.Supp. 247, 251-52 (S.D.N.Y.1991) (citing Coup v. Heckler, 834 F.2d 313, 317 (3d Cir.1987) and McGowen v. Harris, 666 F.2d 60, 65-67 (4th Cir.1981)); seealsoKasey v. ...


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