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Blabac v. Astrue

November 30, 2009

ROBERT J. BLABAC PLAINTIFF,
v.
MICHAEL J. ASTRUE COMMISSIONER OF SOCIAL SECURITY, DEFENDANT,



REPORT AND RECOMMENDATION

I. Introduction

Plaintiff Robert J. Blabac brings this action pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), ending his Supplemental Security Income ("SSI").*fn1 Specifically, Plaintiff alleges that the decision of the Administrative Law Judge ("ALJ") was not supported by substantial evidence and contrary to the applicable legal standards. The Commissioner argues that the decision was supported by substantial evidence and made in accordance with the correct legal standards.

For the reasons set forth below, the Court finds that the Commissioner's decision contains legal error and is not supported by substantial evidence. Therefore, the Court recommends that Plaintiff's Motion for Judgment on the Pleadings be granted in part and Defendant's Cross-Motion for Judgment on the Pleadings be denied.*fn2

II. Background

Plaintiff applied for SSI on November 2, 2000, alleging an onset date of January 15, 1987 (R. at 31-33).*fn3 Plaintiff alleges disability due to epilepsy, as well as shoulder, back, and mental impairments. Plaintiff's application was ultimately granted on April 9, 2001, with an onset date of November 1, 2000 (R. at 65).

On May 23, 2005, Plaintiff was informed by the Social Security Administration ("SSA") that his disability benefits would cease due to a medical improvement (R. at 86-87). Plaintiff appealed the decision and appeared pro se before the ALJ on December 8, 2005 (R. at 306). The hearing was adjourned in order to allow Plaintiff to obtain a representative (R. at 309). Plaintiff again appeared pro se at a subsequent hearing on January 31, 2006 (R. at 312). The ALJ considered the case de novo and, on August 24, 2006, issued a decision finding Plaintiff not disabled (R. at 23-30). The ALJ's decision became the Commissioner's final decision in this case when the Appeals Council denied Plaintiff's request for review on July 9, 2008 (R. at 5-8). On August 7, 2008, Plaintiff filed this action.

Based on the entire record, the Court recommends remand because the ALJ erred in analyzing Plaintiff's mental impairment and in applying the treating physician rule.

III. Discussion

A. Legal Standard and Scope of Review

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 & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will only be reversed if the correct legal standards were not applied, or it was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) ("Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles."); 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 (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).

"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 ex rel. 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 position 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 & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

The Commissioner has established the following seven-step process to determine whether an individual's disability has continued or ended:

(i) Step 1. Do you have an impairment or combination of impairments which meets or equals the severity of an impairment listed in appendix 1 of subpart P of part 404 of this chapter? . . . .

(ii) Step 2. If you do not, has there been medical improvement as defined in paragraph (b)(1)(i) of this section?*fn4 . . . .

(iii) Step 3. If there has been medical improvement, we must determine whether it is related to your ability to do work . . .; i.e., whether or not there has been an increase in the residual functional capacity based on the impairment(s) that was present at the time of the most recent favorable medical determination. . . . .

(iv) Step 4. If we found at step 2 . . . that there has been no medical improvement or if we found at step 3 . . . that the medical improvement is not related to your ability to work, we consider whether any of the exceptions in paragraphs (b)(3) and (b)(4) of this section apply. . . . .

(v) Step 5. If medical improvement is shown to be related to your ability to do work or if one of the first group of exceptions to medical improvement applies, we will determine whether all your current impairments in combination are severe (see § 416.921). . . .

(vi) Step 6. If your impairment(s) is severe, we will assess your current ability to do substantial gainful activity in accordance with § 416.960. . . .

(vii) Step 7. If you are not able to do work you have done in the past, we will consider one final step. Given the residual functional capacity assessment and considering your age, education, and past work experience, can you do other work? If you can, disability will be ...


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