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Damiano v. Astrue

June 7, 2010

CLIFFORD DAMIANO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, IN HIS OFFICIAL CAPACITY AS COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION, DEFENDANT.



The opinion of the court was delivered by: George H. Lowe, United States Magistrate Judge

REPORT-RECOMMENDATION*fn1

I. BACKGROUND

A. Procedural History

On March 17, 2005, Plaintiff Clifford Damiano applied for disability insurance benefits ("DIB") and supplemental security income ("SSI"). Administrative Transcript ("T") 25, 46. On August 18, 2005, his applications were denied by the Social Security Administration. T 33-36. On September 11, 2007, a hearing was held before an Administrative Law Judge ("ALJ"). T 261-80. On January 14, 2008, the ALJ determined that Plaintiff was not disabled. T 15-23.

Plaintiff appealed to the Appeals Council. T 14. On September 16, 2008, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. T 6-9. Plaintiff commenced this action on November 19, 2008. Dkt. No. 1.

B. The Contentions

Plaintiff makes the following claims:

1. The ALJ erred by failing to find that Plaintiff's major depressive disorder, panic disorder, and generalized anxiety disorder met listed impairments. Dkt. No. 9 at 15-18.

2. The ALJ erred by failing to consider Plaintiff's mental and physical impairments in combination. Dkt. No. 9 at 18-22.

3. The ALJ erred by failing to afford appropriate weight to Plaintiff's subjective complaints. Id.

Defendant disagrees, and argues that the decision should be affirmed. Dkt. No. 10.

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a plaintiff seeking disability insurance benefits or supplemental security income benefits must establish that he is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's physical or mental impairment or impairments [must be] of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. §§ 405(a), 1383(d)(1)), the Social Security Administration ("SSA") has promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 404.1520. "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

At the first step, the agency will find non-disability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find non-disability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R. §§] 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled.[] If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, ...


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