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Kiley v. Astrue

July 6, 2009

LORI A. KILEY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

Introduction

Plaintiff Lori A. Kiley ("Plaintiff") brings this action pursuant to the Social Security Act ("the Act") § 205(g) as amended (42 U.S.C. § 405(g)), seeking review of the decision of the Administrative Law Judge ("ALJ") Bruce Mazzarella, denying her application for Social Security Disability Benefits ("DIB") and Supplemental Security Income ("SSI"). Specifically, Plaintiff alleges that the decision of the ALJ denying her application for benefits was against the weight of the substantial evidence in the record and was based on errors of law.

The Commissioner moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure ("Rule 12(c)"), on grounds that substantial evidence supports the Commissioner's decision that Plaintiff was not disabled from her alleged onset date, January 19, 2002, through August 31, 2006, the date of the ALJ's decision. Plaintiff cross-moves for judgment on the pleadings on grounds that the Commissioner's decision was not based on substantial evidence, was based on error of law, and is in violation of Title II and Title XVI of the Act, as well as the Commissioner's Regulations promulgated thereunder. For the reasons set forth below, I find that the decision of the Commissioner is supported by substantial evidence, and is in accordance with applicable law. I therefore grant the Commissioner's motion for judgment on the pleadings, and deny Plaintiff's motion for judgment on the pleadings.

Background

I. Vocational Background and Procedural History

On December 30, 2002, Plaintiff, at the time 44 years old and seasonally employed at J-Con Parks (an operator of concessions at New York State Parks) filed applications for SSI and DIB under Titles II and XVI of the Act, alleging that she was disabled since January 19, 2002, because of exacerbations of existing back and knee problems due to a motor vehicle accident, and asthma. (T. 87-90, 518). Plaintiff has a college education and whose past relevant work experience consists of working as a medical secretary, school aide, and cashier. (T. 125-131).

Plaintiff worked as a cashier for J-Con Parks at Letchworth State Park in Castile, New York, from 1999 until August 2005.

(T. 547). She had worked for J-Con Parks seasonally from late April or early May of each year until the end of October, for approximately 24-28 hours weekly. (T. 511, 513). In 2005, when she last worked at J-Con Parks, her job permitted her to alternate between sitting and standing during a six hour work day, working less than five days a week. (T. 514, 543) Plaintiff was required to, and could, lift 10 pounds in the performance of her job.

(T. 117, 543-44). Plaintiff did not have trouble getting along with people at J-Con Parks. (T. 588).

From 2002 to 2004, Plaintiff collected unemployment insurance during the off-season when she was not working at J-Con Parks.

(T. 530). As a prerequisite for obtaining unemployment benefits, Plaintiff consistently declared that she was ready, willing, and able to work. (T. 530-31).

In August 2005, Plaintiff left J-Con Parks, and was employed as a cashier with Walmart. Plaintiff admitted that although she was able to perform her job at J-Con Parks, she left to work at Walmart because she wanted to earn more money. (T. 23, 513). However, four months after starting at Walmart in December 2005, Plaintiff left her employment due to neck and back pain, and her inability to stand as required. (T. 511, 512-13, 542, 517). Plaintiff also claimed that she did not get along with her co-workers. (T. 545).

Plaintiff's 2002 application for benefits was denied by the Social Security Administration ("SSA"). (T. 29, 41-45). Plaintiff then requested a hearing before an ALJ. (T. 46-47). A hearing was held on September 14, 2004 via video teleconferencing at which she was unrepresented (T. 574-609). The ALJ considered the case de novo and on December 13, 2004 issued a decision that Plaintiff was not disabled within the meaning of the Act. (T. 30-40).

Plaintiff then obtained counsel and requested review of the ALJ's decision. (T. 62). The Appeals Council granted review under the substantial evidence and new and material evidence provisions of the SSA regulations, and remanded the claim for further proceedings. (T. 71-73).

A second hearing was held on May 24, 2006 before ALJ Bruce Mazzarella. (T. 502-573). Plaintiff appeared with counsel and testified. A vocational expert also appeared and testified. The ALJ considered the case de novo and on August 31, 2006, issued a decision finding that Plaintiff was not disabled. (T. 10-24). The decision of the ALJ became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on October 9, 2007. (T. 6-7). This action followed.

II. Medical Background

A. Injuries

Plaintiff claims that she became disabled following an automobile accident on January 19, 2002. (T. 518) The record reveals that plaintiff injured her left knee when it came in contact with the dashboard of her car. Id. She claims that the force of the accident caused her kneecap to be displaced, and that she was also treated for a contusion. (T. 518, 355). There is no evidence in the record that plaintiff's automobile accident caused any injury to her neck or spine.

According to the plaintiff, the automobile accident aggravated injuries she suffered in 1991, when, while working as a registered nurse, she was attacked by a patient resulting in a back injury.

(T. 515). She claims that because of the attack and resulting injury, she was no longer able to work as a nurse. Id. Plaintiff testified that as a result of her back injury, she has had continuous low back pain ...


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