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Carbonell v. Astrue

March 29, 2010

RAQUEL CARBONELL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. INTRODUCTION

In August of 2001, Plaintiff Raquel Carbonell filed an application for Supplemental Security Income ("SSI") benefits under the Social Security Act. Plaintiff alleges that she has been unable to work since January 1, 1997, due to chronic asthma. The Commissioner of Social Security denied Plaintiff's application.

Plaintiff, through her attorney, Stephen J. Mastaitis, Jr., Esq., commenced this action on June 23, 2008, by filing a Complaint in the United States District Court for the Northern District of New York. (Docket No. 1). Plaintiff seeks judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

On February 8, 2010, the Honorable Norman A. Mordue, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 18).

II. BACKGROUND

The relevant procedural history may be summarized as follows: Plaintiff applied for SSI on August 17, 2001,*fn1 alleging disability beginning on January 1, 1997. (T at 14,134-36, 166).*fn2 The application was denied initially and on reconsideration. (T at 14, 33-36). Plaintiff requested a hearing before an Administrative Law Judge ("ALJ") on October 17, 2003. (T at 92). A hearing was held in Albany, New York on April 8, 2003 and July 24, 2003, before ALJ Thomas P. Zolezzi. (T at 588-666). Plaintiff, represented by counsel, appeared and testified. (T at 588). On August 21, 2003, ALJ Zolezzi issued a decision denying the application for benefits. (T at 78-89). Plaintiff filed a request for review of that decision. On January 20, 2006, the Appeals Council vacated ALJ Zolezzi's decision and remanded the case for further proceedings. (T at 110-13).

Thereafter, Plaintiff appeared and testified at a hearing held on August 22, 2006, in Albany, New York before ALJ Zolezzi. (T at 544). On September 18, 2006, ALJ Zolezzi issued a decision finding Plaintiff not disabled. (T at 14-22). Plaintiff requested review of that decision. The ALJ's decision became the Commissioner's final decision on April 25, 2008, when the Appeals Council denied Plaintiff's request. (T at 5-7).

Plaintiff, through counsel, timely commenced this action on June 23, 2008. (Docket No. 1). The Commissioner interposed an Answer on October 3, 2008. (Docket No. 8). Plaintiff filed a supporting Brief on January 5, 2009. (Docket No. 12). The Commissioner filed a Brief in opposition on May 21, 2009. (Docket No. 17).

Pursuant to General Order No. 18, issued by the Chief District Judge of the Northern District of New York on September 12, 2003, this Court will proceed as if both parties had accompanied their briefs with a motion for judgment on the pleadings.*fn3

For the reasons that follow, it is respectfully recommended that the Commissioner's motion be denied, Plaintiff's motion be granted, and that this case be remanded for further proceedings.

III. DISCUSSION

A. Legal Standard

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, 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).

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 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. §§ 416.920, 404.1520. 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, 96 L.Ed.2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.*fn4

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 the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her 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. §§ 416.920(g); 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).

B. Analysis

1. Commissioner's Decision

In his decision issued on remand, the ALJ found that Plaintiff had not engaged in substantial gainful activity since her alleged onset of disability, January 1, 1997. (T at 16). The ALJ determined that Plaintiff had the following impairments considered "severe" under the Act: asthma, history of bilateral bunion surgery, hypothyroidism, hypertension and hypercholesterolemia, depression and anxiety. (T at 16).

However, the ALJ concluded that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments found in 20 CFR Part 404, Subpart P, Appendix 1 (the "Listings"). (T at 17).

The ALJ found that Plaintiff has the residual functional capacity ("RFC") to occasionally lift and carry 20 pounds, sit for 4 hours in an 8-hour work day, stand or walk for 2 hours in an 8-hour work day, with the ability to change position from sitting to standing every 30 to 45 minutes, "in simple entry level work, with simple decision-making, but no complex decision making; in a low stress environment, with no planning, scheduling, report-writing, supervising or multi-tasking; with only moderate exposure to gases, fumes, smoke, dust, odors, and poor ventilation; with no exposure to dangerous moving machinery; no work with knives, saws or blades; no driving for business purposes; no climbing ladders, ropes or scaffolds; and with the ability to have 3 rest-room breaks during the course of an eight-hour workday." (T at 18).

The ALJ noted that Plaintiff has no past relevant work. (T at 20). The ALJ also noted that Plaintiff, born March 27, 1966, was 31 years old on the date of the application,*fn5 and is considered a "younger individual" as defined in 20 C.F.R. ยง 416.963. (T at 20). The ALJ found that given Plaintiff's age, education (limited), work experience, and RFC, there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (T at 21). As such, the ALJ found that Plaintiff has not been under a disability, as defined under the Act at any time relevant to the ALJ's decision. (T at 22). As noted ...


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