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Lentola v. Astrue

September 11, 2008

REVA E. LENTOLA, PLAINTIFF,
v.
MICHAEL J. ASTRUE,*FN1 COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



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

Plaintiff Reva E. Lentola initiated this action pursuant to Section 405(g) of the Social Security Act, 42 U.S.C. § 405(g), to review the final determination of the Commissioner of Social Security (the "Commissioner") denying plaintiff's application for Social Security disability insurance ("SSDI") benefits. The Commissioner has filed a motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure (Item 7), and plaintiff has moved for a remand to the Commissioner for consideration of new evidence (see Items 9, 12).

For the reasons that follow, the Commissioner's motion is granted, and plaintiff's motion is denied.

BACKGROUND

Plaintiff was born on August 29, 1953 (Tr. 362, 613).*fn2 She applied for SSDI benefits on October 15, 2001, alleging disability as of August 1998*fn3 due to problems with her back, neck, shoulder, and arm (Tr. 16-17; 362-65; 387). The application was denied administratively (Tr. 295-98). Plaintiff then requested a hearing, which took place on April 21, 2004 before Administrative Law Judge ("ALJ") Robert Harvey (Tr. 584-607). Plaintiff testified at the hearing and was represented by counsel.

In a decision dated June 21, 2004, ALJ Harvey found that plaintiff was not disabled (Tr. 26-37). Plaintiff appealed this determination; and on June 10, 2005, the Appeals Council remanded the case to the ALJ for further administrative proceedings, with specific instructions to consider vocational evidence and to evaluate the claimant's subjective complaints in accordance with the Social Security Administration's rulings and regulations (Tr. 345-46).

Pursuant to the remand order, a new hearing was held before ALJ Harvey on April 19, 2006 (Tr. 608-36). Plaintiff appeared and testified, and was once again represented by counsel. Julie Andrews, a vocational expert, also testified. On June 15, 2006, ALJ Harvey issued a decision, finding once again that plaintiff was not disabled within the meaning of the Social Security Act (Tr. 13-23). 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 (including discogenic cervical spine, cervical radiculopathy, and low back pain), 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. 23). The ALJ then found that while plaintiff was unable to perform her past work as a commercial cleaner, plaintiff had the residual functional capacity for a range of light work*fn4 with several additional limitations which, when considered along with plaintiff's age (52 at the time of the decision), educational background (high school education), lack of transferable skills, and the testimony of the vocational expert, led to the conclusion that there are a significant number of unskilled jobs in the national economy that plaintiff could perform (Tr. 21-23). The ALJ's decision became the Commissioner's final determination on November 28, 2006, when the Appeals Council denied plaintiff's request for review (Tr. 8-10).

On January 26, 2007, plaintiff filed this action seeking judicial review of the Commissioner's final determination. On January 31, 2007, plaintiff submitted an amended complaint, attaching a letter from her treating orthopedist, Dr. John S. Halpenny, dated January 22, 2007, which plaintiff claims constitutes new evidence of her disabling condition that was unavailable at the time of the hearing in April 2006 (see Item 2).

After answering the amended complaint, the Commissioner moved for judgment on the pleadings on the ground that the ALJ's determination must be upheld because it is supported by substantial evidence in the record (see Item 8). Plaintiff responded by filing a motion for further remand, this time to consider the new evidence presented in Dr. Halpenny's January 2007 letter (see Items 9, 10). The Commissioner filed a reply (Item 11), and plaintiff then filed an amended motion for remand to consider a letter dated March 30, 2008 from Dr. Thomas G. Foreman, a surgical consultant, indicating that plaintiff has recently been diagnosed with cancer (see Item 12, Ex. A).

For the reasons that follow, plaintiff's motion for remand is denied, and the Commissioner's motion for judgment on the pleadings is granted.

DISCUSSION

I. Judicial Review Under Section 405(g)

The Social Security 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." Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938), quoted in Richardson v. Perales, 402 U.S. 389, 401 (1971); see also Tejada v. Apfel, 167 F.3d 770, 773-72 (2d Cir. 1999). Under these standards, the scope of judicial review of the Commissioner's decision is limited, and the reviewing court may not try a case de novo or substitute its findings for those of the Commissioner. Richardson, 402 U.S. at 401. The court's 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. Sample v. Schweiker, 694 F.2d 639, 642 (9th Cir. 1982), quoted in Winkelsas v. Apfel, 2000 WL 575513, at *2 (W.D.N.Y. February 14, 2000).

Section 405(g) also provides, at sentence six, that a court may order a remand to the Commissioner for the purpose of considering additional evidence, "but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding." 42 U.S.C. ยง 405(g). Relying on this provision, plaintiff seeks a remand to ...


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