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Kochanek v. Astrue

April 13, 2010

DENINE K. KOCHANEK, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. INTRODUCTION

In February of 2000, Plaintiff Denine Kochanek filed an application for Supplemental Security Income ("SSI") benefits under the Social Security Act. At that time, Plaintiff claimed disability based on Hodgkin's Lymphoma. In a determination dated April 24, 2000, Plaintiff was found to be disabled and granted benefits. In July of 2003, a state agency reviewer determined that Plaintiff was no longer disabled as of July 1, 2003, because her cancer went into remission. The Commissioner of Social Security upheld the decision and Plaintiff's benefits were ended effective July 1, 2003.

Plaintiff, through her attorneys, Olinsky, Shurtliff Law Firm, Jaya Shurtliff, Esq., of counsel, commenced this action on March 17, 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 decision 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. 16).

II. BACKGROUND

The relevant procedural history may be summarized as follows: Plaintiff initially applied for SSI on February 3, 2000, alleging disability beginning on June 4, 1999. (T at 89).*fn1 The primary disabling impairment was Hodgkin's Lymphoma. The application was granted. (T at 16). On July 23, 2003, it was determined that Plaintiff was no longer disabled as of July 1, 2003. (T at 16, 37). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (T at 16, 63). A hearing was held in Syracuse, New York on April 10, 2007, before ALJ Robert E. Gale. (T at 588-666). Plaintiff, represented by counsel, appeared and testified. (T at 713-748). On April 27, 2007, ALJ Gale issued a decision finding that Plaintiff's disability ended as of July 1, 2003. (T at 16-22). Plaintiff filed a request for review of that decision. The ALJ's decision became the Commissioner's final decision on January 28, 2008, when the Appeals Council denied Plaintiff's request. (T at 8-11).

Plaintiff, through counsel, timely commenced this action on March 17, 2008. (Docket No. 1). The Commissioner interposed an Answer on June 13, 2008. (Docket No. 8). Plaintiff filed a supporting Brief on August 27, 2008. (Docket No. 11). The Commissioner filed a Brief in opposition on November 13, 2008. (Docket No. 15).

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.*fn2

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 (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 (7) 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?*fn3

(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 found to have ended. If you cannot, disability will be found to continue.

20 C.F.R. § 416.994(b)(5)(i)-(vii).

B. Analysis

1. Commissioner's ...


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