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Selinsky v. Commissioner of Social Security

June 14, 2010

JACK SELINSKY, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



REPORT AND RECOMMENDATION

I. INTRODUCTION

In July of 2005, Plaintiff Jack Selinsky applied for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB") under the Social Security Act. Plaintiff alleges that he has been unable to work since May 1, 2004, due to physical impairments. The Commissioner of Social Security denied Plaintiff's applications.

Plaintiff, by and through his attorney, Peter W. Antonowicz, Esq., commenced this action on December 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 decision pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).

On May 10, 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. 17).

II. BACKGROUND

The relevant procedural history may be summarized as follows: Plaintiff applied for SSI benefits and DIB on July 30, 2005, alleging disability beginning on May 1, 2004.*fn1 (T at 50-53).*fn2 The applications were denied initially on November 17, 2005. (T at 24-30). Plaintiff timely requested a hearing before an Administrative Law Judge ("ALJ"). (T at 31). A hearing was originally scheduled for September 18, 2007, but was adjourned at the request of Plaintiff's non-attorney representative. (T at 348). A hearing was thereafter held in Syracuse, New York on April 1, 2008, before ALJ Jack Ryan. (T at 330). Plaintiff, accompanied by a non-attorney representative, appeared and testified. (T at 330-345). On April 24, 2008, ALJ Ryan issued a decision denying Plaintiff's applications. (T at 13-19). The ALJ's decision became the Commissioner's final decision on November 12, 2008, when the Appeals Council denied Plaintiff's request for review. (T at 4-7).

Plaintiff timely commenced this action on December 23, 2008. (Docket No. 1). The Commissioner interposed an Answer on November 17, 2009. (Docket No. 10). Plaintiff filed a Brief in support of the action on February 2, 2010. (Docket No. 13). The Commissioner filed a Brief in opposition on April 2, 2010. (Docket No. 16).

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 administrative 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

The ALJ found that Plaintiff met the insured status requirements of the Social Security Act through June 30, 2006. (T at 15). The ALJ also found that Plaintiff had not engaged in substantial gainful activity since his alleged onset of disability.(T at 15). The ALJ concluded that Plaintiff had the following impairments considered "severe" under the Act: a medial meniscus tear of the left knee (status post arthroscopic repair) and lumbar degenerative disc disease. (T at 15).

However, the ALJ determined that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the impairments set forth in 20 CFR Part 404, ...


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