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Tricic v. Astrue

August 24, 2010


The opinion of the court was delivered by: Hon. Norman A. Mordue, Chief U.S. District Judge



Plaintiff Zuhdija Tricic brings this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act seeking review of the Commissioner of Social Security's decision to deny his application for a period of disability and disability insurance benefits ("DIB").


On March 17, 2005, plaintiff filed an application for Social Security disability benefits alleging disability onset on February 16, 2004. Plaintiff was forty-four at the time he applied for disability benefits. Plaintiff was born in Bosnia and emigrated to the United States in 1998. Plaintiff was employed by a furniture manufacturer as a forklift driver from May 1999 to February 1994. In Bosnia, plaintiff was employed as a construction worker. Plaintiff claims that he became disabled "as a result of significant limitations caused by a variety of medical conditions including discogenic and degenerative low back disorders, L5-S1 disc protrusion contacting the anterior and thecal sac, facet hypertrophy at the L5-S1 level with narrowing of the L5-S1 nuero foramen bilaterally, lumbosacral discopathy with radiculitis, S1 radiculopathy, depression, anxiety, and somatoform disorder."

Plaintiff's application was denied on July 21, 2005 and he requested a hearing before an administrative law judge ("ALJ"). On May 30, 2007, a hearing was held and plaintiff attended with a paralegal from his attorney's office and a Bosnian interpreter. On June 28, 2007, the ALJ issued a decision denying plaintiff's application for benefits. On September 10, 2007, the Appeals Council denied plaintiff's request for review making the ALJ's decision the Commissioner's final determination. This action followed.


The Social Security Act (the "Act") authorizes payment of disability insurance benefits to individuals with "disabilities." The Act defines "disability" as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment... which has lasted or can be expected to last for a continuous period of not less than 12 months." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a 'severe impairment,' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (internal citations omitted).

A Commissioner's determination that a claimant is not disabled will be set aside when the factual findings are not supported by "substantial evidence." 42 U.S.C. § 405(g); see also Shaw, 221 F.3d at 131. Substantial evidence has been interpreted to mean "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Id. The Court may also set aside the Commissioner's decision when it is based upon legal error. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

In this case the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date of his disability. (T. 16). At step two, the ALJ concluded that plaintiff suffered from "lumbosacral spine strain/sprain and a somatiform [sic] disorder" which qualified as severe impairments within the meaning of the Social Security Regulations (the "Regulations"). (T. 16). At the third step of the analysis, the ALJ determined that plaintiff's impairments did not meet or equal the severity of any impairment listed in Appendix 1 of the Regulations. (T. 16). The ALJ found that plaintiff had the residual functional capacity ("RFC") "to lift/carry 20 pounds occasionally and 10 pounds frequently, sit for 6 hours in an 8 hour workday, stand/walk for 6 hours in an 8 hour workday, cannot engage in sustained or continuous bending or stooping, and can crouch, kneel, crawl, stoop and climb stairs occasionally." (T. 19). At this step, the ALJ found that plaintiff "failed to satisfy his burden of establishing that he has any significant mental limitations." (T. 19). At step four, the ALJ concluded that plaintiff "is unable to perform any past relevant work". (T. 22). At the final step, relying on the Medical-Vocational Guidelines, 20 C.F.R. Part 404, Subpart P, Appendix 2, the ALJ concluded that "considering the claimant's age, education, work experience, and residual functional capacity, there are jobs that exist in significant numbers in the national economy that claimant can perform". (T. 23). The ALJ therefore found that plaintiff was not under a disability as defined by the Social Security Act. (T. 24).

In seeking federal judicial review of the Commissioner's determination, plaintiff argues that: (1) the ALJ's residual functional capacity decision is not supported by substantial evidence; (2) the ALJ failed "to properly consider the effects of the plaintiff's mental impairments" and should have utilized a vocational expert; and (3) the ALJ improperly evaluated plaintiff's complaints of disabling pain.

A. Residual Functional Capacity

Plaintiff argues that the ALJ's determination that he has the residual functional capacity to perform light work is not supported by substantial evidence. Specifically, plaintiff asserts that the ALJ failed in her duty to obtain a specific functional assessment of plaintiff's limitations from his treating physicians. The ...

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