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Selena Tomasello v. Michael J. Astrue

June 23, 2011

SELENA TOMASELLO, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Michael A. Telesca United States District Judge

DECISION and ORDER

INTRODUCTION

Plaintiff Selena Tomasello ("Plaintiff") brings this action pursuant to the Social Security Act (codified in relevant parts at 42 U.S.C. §§ 405(g) and 1383(c)(3)), seeking review of a final decision of the Commissioner of Social Security ("Commissioner"), denying her application for disability insurance benefits and supplemental security income. Specifically, Plaintiff alleges that the decision of Administrative Law Judge ("ALJ") J. Timothy McGuan denying her application for benefits was against the weight of substantial evidence contained in the record. Plaintiff requests that the Court reverse the judgment of the Commissioner and remand for calculation of benefits, or in the alternative, for further administrative proceedings.

The Commissioner moves for judgment on the pleadings on the grounds that the ALJ's decision was supported by substantial evidence in the record and was based upon the application of the correct legal standards. Plaintiff cross-moves for judgment on the pleadings and opposes the Commissioner's motion on the grounds that the Commissioner's decision was not supported by substantial evidence. For the reasons set forth below, I find that the Commissioner's decision was not supported by substantial evidence in the record. I hereby grant Plaintiff's motion and remand this claim to the Social Security Administration for further administrative proceedings consistent with this decision.

BACKGROUND

On March 14, 2005, Plaintiff filed applications for disability insurance benefits, and supplemental security income. (Tr. 60). She alleged she was disabled due to Rheumatoid Arthritis which began June 15, 2004. (Tr. 60-65). These claims were initially denied on April 1, 2005. (Tr. 24-30). Thereafter, the Plaintiff timely filed a written request for a hearing on June 27, 2005. (Tr. 33). On November 7, 2006, the Plaintiff and her attorney appeared at a hearing held in Buffalo, NY. (Tr. 279-310). Dr. Timothy Janikowski, a vocational expert ("VE") was also present. Id. In a decision dated November 20, 2006, ALJ J. Timothy McGuan found that the Plaintiff was not disabled within the meaning of the Social Security Act. (Tr. 11-23). The Appeals Council denied review on May 28, 2009, rendering the ALJ's decision the final decision of the Commissioner. (Tr. 5-8). The Plaintiff subsequently filed this action on November 19, 2009.

DISCUSSION

I. Jurisdiction and Scope of Review

Title 42, Section 405(g) of the United States Code grants jurisdiction to Federal District Courts to hear claims based on the denial of Social Security benefits. See Mathews v. Eldridge, 424 U.S. 319, 320 (1976). In addition, Section 405(g) directs that the District Court accept the Commissioner's findings of fact if those findings are supported by substantial evidence in the record. See Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); see also Williams v. Comm'r of Soc. Sec., 2007 U.S. App. LEXIS 9396, at *3 (2d Cir. 2007). Substantial evidence is defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." See Metropolitan Stevedore Co. v. Rambo, 521 U.S. 121, 149 (1997) (quoting Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)). The Court must "scrutinize the record in its entirety to determine the reasonableness of the decision reached." Lynn v. Schweiker, 565 F. Supp. 265, 267 (S.D. Tex. 1983) (citation omitted). Section 405(g) thus limits this Court's scope of review to two inquiries:

(i) whether the Commissioner's conclusions are supported by substantial evidence in the record as a whole, and (ii) whether the Commissioner's conclusions are based upon an erroneous legal standard. See Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003); see also Wagner v. Secretary of Health & Human Serv., 906 F.2d 856, 860 (2d Cir. 1990) (holding that review of the Secretary's decision is not de novo and that the Secretary's findings are conclusive if supported by substantial evidence).

Both Plaintiff and Defendant move for judgment on the pleadings pursuant to 42 U.S.C. 405(g) and Rule 12(c) of the Federal Rules of Civil Procedure. Section 405(g) provides that the District Court "shall have power to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing." 42 U.S.C.S. § 405(g) (2007). Under Rule 12(c), judgment on the pleadings may be granted where the material facts are undisputed and where judgment on the merits is possible merely by considering the contents of the pleadings. See Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988). "[W]here the administrative record contains gaps, remand to the Commissioner for further development of the evidence is appropriate." Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2005).

II. The ALJ's decision is erroneous because the ALJ did not follow the treating physician rule

A. Standard for evaluating a Claimant's disability claim

In finding that the Plaintiff was not disabled within the meaning of the Social Security Act, the ALJ adhered to the Social Security Administration's five-step sequential analysis for evaluating applications and determining whether an individual is disabled. See 20 C.F.R. ยง 404.1520 and 416.920(a)(4)(i)-(v)(2009). Pursuant to the five-step analysis set forth in the regulations, the ALJ will consider: (1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has any severe impairment or combination of impairments which significantly limit his physical or mental ability to do basic work activities; (3) whether the claimant has any impairment or impairments listed in Appendix 1 of the Social Security Regulations; (4) whether or not the claimant maintains the residual functional capacity to perform his past work; and (5) whether the claimant can perform other work. See id. Under step one, the ALJ found that the Plaintiff had not engaged in substantial gainful activity since June 15, 2005, the alleged onset date. (Tr. 16). At steps two and three, the ALJ found that the Plaintiff's impairments, rheumatoid arthritis and osteoarthritis in her right knee, were severe within the meaning of the Regulations but were not severe enough to meet or equal, either singly or in combination, any of the impairments listed in Appendix 1, Subpart P of Regulations No. 4. (Tr. 16-17). At step four, the ALJ determined that the Plaintiff had the residual functional capacity to perform light work. (Tr. 17). The ALJ also determined that Plaintiff must have a sit/stand option and therefore could not perform her past relevant work as a cafeteria worker. (Tr. 21). At step five of the ...


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