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Davidow v. Astrue

September 2, 2009

SANDRA L. DAVIDOW, 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 Sandra L. Davidow ("Plaintiff," "Davidow") brings this action pursuant to 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for Disability Insurance Benefits ("DIB"). Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") Robert T. Harvey, which denied her application for benefits, was contrary to law and erroneous as it was not supported by substantial evidence in contained in the record.

Now before the Court is the Commissioner's motion for remand for further administrative proceedings and Davidow's cross-motion for judgment on the pleadings pursuant to Rule 12 (c) of the Federal Rules of Civil Procedure and 42 U.S.C. § 405(g). For the reasons stated below, Davidow's motion is granted and Commissioner's motion is denied.

BACKGROUND

On January 17, 2002, Plaintiff applied for disability insurance benefits, claiming that she became disabled due to fibromyalgia and the pain associated with the disorder on January 1, 2001. (Tr.*fn1 59). Her application was initially denied by the Social Security Administration on April 19, 2002. She then filed a timely request for a hearing on May 31, 2002. (Tr. 32-35, 39-40). The hearing was held on October 7, 2004 before ALJ Robert T. Harvey, who issued a decision on November 24, 2004, finding that Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 23-30). On March 24, 2006, the ALJ's decision became the final decision of the Commissioner when the Social Security Appeals Council denied Plaintiff's request for review the ALJ's denial. (Tr. 5-7).

While this case was pending before the Appeals Council, Plaintiff filed a second application for DIB on August 26, 2005. (Tr. 499). The second application was initially denied and Plaintiff filed a request for a hearing on February 6, 2009. Despite Plaintiff's request, the matter was dismissed/closed by the Office of Disability Adjudication and Review (ODAR) and the file cannot be located. (Tr. 355). The second application, however, was eventually joined with the remand for a second hearing before the ALJ on October 4, 2007.

With regard to the first application, Plaintiff filed an appeal pursuant to 42 U.S.C. § 405 (g) in United States District Court for the Western District of New York on May 25, 2006. See Davidow v. Astrue, 2007 WL 1428430 (W.D.N.Y). In a decision dated March 2, 2007, Judge Charles J. Siragusa remanded the case for further proceedings and specifically directed the ALJ to reassess Plaintiff's credibility, Plaintiff's residual functional capacity, and the weight given the medical source opinions. Id. Accordingly, the Appeals Council vacated the ALJ's decision and remanded the case for further administrative proceedings, including a de novo hearing. (Tr. 313-16). On October 4, 2007, Plaintiff again appeared before ALJ Harvey and was represented by Anne Lang, a paralegal. (Tr. 497, 499). On November 8, 2007, ALJ Harvey issued a decision finding again that Plaintiff was not disabled because he determined that she was able to perform her past relevant work as a cashier and receptionist prior to December 31, 2005, the date her DIB-insured status expired. (Tr. 279-89). On March 8, 2008 the ALJ's decision became the final decision of the Commissioner when the Social Security Appeals Council declined to accept Plaintiff's untimely filed exceptions to the ALJ's decision. (Tr. 266-69).

Plaintiff subsequently filed this action and argues that there is substantial evidence in the record supporting a reversal of the Commissioner's decision and the award of benefits. See Plaintiff's Memorandum of Law ("Pl. Mem.") (Docket No. 8). The Commissioner's position is that the ALJ's decision should be reversed and remanded for further administrative proceedings before a new ALJ. See Defendant's Motion for Remand (Def. Mot.) at 21 (Docket No. 6).

DISCUSSION

I. Jurisdiction and Scope of Review

Title 42, Section 405(g) of the United States Code grants jurisdiction to Federal District Courts to hear claims based on the denial of Social Security benefits. See Mathews v. Eldridge, 424 U.S. 319, 320 (1976). In addition, Section 405(g) directs that District Court must accept the Commissioner's findings of fact if those findings are supported by substantial evidence in the record. See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); see also Williams v. Comm'r of Soc. Sec., 2007 U.S. App. LEXIS 9396, at *3 (2d Cir. Apr. 24, 2007). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). Section 405(g) thus limits this Court's scope of review to two inquiries: (i) whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole, and (ii) whether the Commissioner's conclusions are based upon an erroneous legal standard. See Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also Wagner v. Secretary of Health & Human Serv., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence).

The fourth sentence of 42 U.S.C. § 405(g) provides this Court with the "power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner, with or without remanding the cause for a rehearing." See 42 U.S.C. § 405(g); Melkonyan v. Sullivan, 501 U.S. 89, 98, (1991); see also Shalala v. Shaefer, 509 U.S. 292, 297 (1993). This Court may remand a case when the Commissioner has failed (i) to provide a full and fair hearing, (ii) to make explicit findings, or (iii) to have correctly applied the law and regulations. Melkonyan, 501 U.S. at 101. However, this Court should order the payment of benefits when a remand for further proceedings is unnecessary because the record contains persuasive proof of disability. See Carroll v. Secretary of Health and Human Serv., 705 F.2d 638, 644 (2d Cir. 1981). The goal of this policy is to "shorten the often painfully slow process by which disability determination are made." Id. Given this Court's finding that (1) the ALJ's decision was not proper as a matter of law nor was it supported by substantial evidence in the record, and that (2) the record contains substantial evidence of disability such that further administrative proceedings would serve no purpose, Plaintiff's motion is granted.

II. The ALJ's decision was not supported by substantial evidence and was improper as a matter of law.

The Commissioner concedes that the ALJ did not properly evaluate Plaintiff's impairments, the medical opinions, or Plaintiff's residual functional capacity, but asserts that there is substantial evidence in the record to support the ALJ's finding that the Plaintiff is not disabled. See Def. Mot. at 16 (Docket No. 6). In addition, the Commissioner contends that a remand for further proceedings is necessary and appropriate. Plaintiff argues, inter alia, that the ALJ failed to follow Judge Siragusa's remand order to properly evaluate the evidence. The Plaintiff also claims that the ALJ improperly discounted the treating physician's medical opinion, improperly discounted Plaintiff's complaints of pain, and improperly substituted his own judgment for competent ...


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