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Japa v. Astrue

September 24, 2010

GUSTAVO JAPA, PRO SE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Dora L. Irizarry United States District Judge

SUMMARY ORDER

DORA L. IRIZARRY, U.S. District Judge

Pro se Plaintiff Gustavo Japa appealed a decision of the Commissioner of Social Security (the "Commissioner") that he is not disabled under the Social Security Act (the "Act") and therefore not entitled to disability benefits. (See generally Compl. 1-2.) Pursuant to Fed. R. Civ. P. 12(c), the Commissioner moved for judgment on the pleadings, seeking affirmation of that determination. For the reasons set forth below, plaintiff is granted thirty (30) days from the date of this Order, i.e., no later than October 25, 2010, to: (1) submit evidence which supports his assertions that in "August 2009, [he] was found disabled by human resources administration and [his] personal physician, Dr. Galina Isakof"; and (2) satisfy the requirements for the consideration of new evidence. If plaintiff fails to comply timely, the court, without further proceedings, will convert this ruling to an order granting the Commissioner's motion for judgment on the pleadings consistent with the "substantial evidence" discussion below.

BACKGROUND

Plaintiff, born on November 21, 1975 in the Dominican Republic, became a United States citizen in 1997. (Administrative Record ("A.R.") 234.) His work experience consists of loading suitcases at LaGuardia airport, parking cars, driving a taxi, selling cars, and telemarketing for a finance agency. (Id. at 234-35.) Plaintiff stopped working on March 1, 2005 as a result of his depression. (Id. at 235.)

Plaintiff filed an application for disability insurance benefits pursuant to 42 U.S.C. § 301 et seq, on April 12, 2006, alleging a continuous disability due to paranoia and depression which began on March 1, 2005. (Id. at 108, 148-49.) On September 18, 2006, the Commissioner denied plaintiff's application. (Id. at 109-13.) Thereafter, on November 29, 2006, plaintiff requested an administrative hearing. (A.R. 114-15.) This request was granted and a hearing before an administrative law judge (the "ALJ") was held on June 30, 2008. (Id. at 233.) In a decision dated August 29, 2008, the ALJ concluded plaintiff was not disabled because he could perform his past relevant work. (Id. at 12-22.) On December 16, 2008, the Appeals Council denied plaintiff's request for review and the ALJ's decision became the Commissioner's final decision. (Id. at 5-7.) Plaintiff filed the instant action on September 28, 2009.

DISCUSSION

1) New Evidence Standard

As an initial matter, in opposition to the Commissioner's motion for judgment on the pleadings, plaintiff asserts that, in "August 2009, [he] was found disabled by human resources administration and [his] personal physician, Dr. Galina Isakof." (Pl.'s Aff./Affirmation in Opp'n to Def.'s Mot. 1.) Plaintiff submitted no documentary evidence (e.g., medical reports) with his opposition to support these purported determinations. Given plaintiff's pro se status, and the fact that such determinations could conceivably cause this court to remand this action to the Commissioner, plaintiff is granted thirty (30) days from the date of this Order, i.e., no later than October 25, 2010, to submit evidence supporting these determinations. Plaintiff must also meet the requirements of the "new evidence" rule by showing: (1) that the evidence is "new and not merely cumulative of what is already on the record;" (2) that the evidence is "material," meaning that it is "both relevant to the claimant's condition during the time period for which benefits were denied and probative;" and (3) "good cause for failure to present the evidence earlier." See Jones v. Sullivan, 949 F.2d 57, 60 (2d Cir. 1991). If plaintiff fails to comply with this directive by the requisite deadline, the court, without further proceedings, will convert this ruling to an order granting the Commissioner's motion for judgment on the pleadings consistent with the "substantial evidence" discussion below.

2) Substantial Evidence Determination

Unsuccessful claimants for disability benefits under the Act may bring an action in federal district court seeking judicial review of the Commissioner's denial of their benefits "within sixty days after the mailing . . . of notice of such decision or within such further time as the Commissioner of Social Security may allow." 42 U.S.C. § 1383(c)(3). A district court reviewing the final determination of the Commissioner must determine whether the ALJ applied the correct legal standards and whether substantial evidence supports the decision. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998).

ALJs must apply a five-step inquiry to determine whether a claimant is disabled under the Act as set forth in 20 C.F.R. § 404.1520. If at any step the ALJ finds that the claimant is either disabled or not disabled, the inquiry ends. First, the claimant will not be found disabled if he or she is working and performing "substantial gainful activity." 20 C.F.R. § 404.1520(b). Second, the ALJ must consider whether the claimant has a "severe impairment" without reference to age, education, or work experience. Impairments are deemed "severe" when they significantly limit a claimant's physical or mental "ability to conduct basic work activities." 20 C.F.R. § 404.1520(c).

Third, the ALJ will find the claimant disabled if his or her impairment meets or equals an impairment listed in Appendix 1. See 20 C.F.R. § 404.1520(d).

If the claimant does not have a listed impairment, the ALJ proceeds to steps four and five. In these steps the ALJ analyzes claimant's residual functional capacity ("RFC"). 20 C.F.R. § 404.1520(e). In the fourth step, the claimant is not disabled if he or she is able to perform "past relevant work." 20 C.F.R. § 404.1520(e). At step five, the ALJ determines whether the claimant could perform other work existing in the national economy, considering factors such as age, education, and work experience. If so, the claimant is not disabled. 20 C.F.R. § 404.1520(f). At this final step, the burden shifts to the ...


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