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Athena Giannasca v. Michael J. Astrue

September 26, 2011

ATHENA GIANNASCA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Briccetti, J.

MEMORANDUM DECISION

Plaintiff Athena Giannasca commenced this action under 42 U.S.C. § 405(g) seeking review of the final decision by the Commissioner of Social Security denying her disability insurance benefits under the Social Security Act. On July 11, 2011, Magistrate Judge Lisa Margaret Smith issued a report and recommendation (Doc. #19) ("R&R") recommending the Court grant defendant's motion for judgment on the pleadings and deny plaintiff's motion for judgment on the pleadings. Plaintiff has filed an objection (Doc. #21) to Magistrate Judge Smith's recommended ruling which is now pending before the Court. For the reasons that follow, plaintiff's objection is overruled; Magistrate Judge Smith's R&R is adopted; defendant's motion is granted; and plaintiff's motion is denied.

BACKGROUND

Plaintiff objects to the R&R on two grounds. First, she asserts the R&R failed to address the episodic nature of plaintiff's conditions. Second, she contends the Administrative Law Judge ("ALJ") failed to adequately develop the record regarding the frequency of the exacerbations. The Court only recounts the factual background pertaining to plaintiff's objection.

I. General Background

Plaintiff Athena Giannasca filed an application for disability insurance benefits on August 23, 2004, because she suffered from rheumatoid arthritis. In her application, she claimed she had been unable to work since August 5, 2003. She had stopped working February 1, 2001. Previously, she had been a "teller manager" at a bank.

A hearing before the ALJ on plaintiff's application was held on April 21, 2006, after which, by decision dated June 30, 2006, her claim was denied by the ALJ. On December 12, 2006, the Appeals Council denied plaintiff's request for review.

Plaintiff, appearing pro se, then appealed to this Court. After filing her complaint, but before filing her motion, she retained counsel to represent her.

II. Medical History

Plaintiff's symptoms, diagnoses, and treatment are described in detail in the R&R. In her R&R, Magistrate Judge Smith noted plaintiff had reported to Dr. Jacobo Futran, one of her treating physicians, that she had "good days" and "bad days." R&R at 7. Dr. Thomas Li, who plaintiff saw on referral from the Division of Disability Determinations, observed that plaintiff had "good days" and "bad days." R&R at 11. He opined that plaintiff had a "marked limitation" on bad days and a "mild limitation" on good days in performing daily activities. Plaintiff testified as to having good days and bad days at the hearing before the ALJ.

III. ALJ's Disability Determination

Under the Social Security Act, every individual with a disability is entitled to disability insurance benefits. See 42 U.S.C. § 423(a)(1). "Disability" is defined as an "inability 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 12 months." 42 U.S.C. § 423(d)(1)(A).

Determining whether a claimant is disabled requires a five-step process. See 20 C.F.R. § 404.1520. First, the agency must determine whether the claimant is currently working. 20 C.F.R. § 404.1510(b), 404.1572(b). If the claimant is currently employed, the claim is disallowed. 20 C.F.R. § 404.1520(b). If the claimant is not working, as a second step, the agency must make a finding as to the existence of a severe mental or physical impairment; if none exists, the claim is denied. 20 C.F.R. § 404.1520(c). Once the claimant is found to have a severe impairment, the third step is to compare the claimant's impairment with those in appendix 1 of the regulations ("Listings"). 20 C.F.R. § 404.1520(d). If the claimant's impairment meets or equals one of the impairments in the Listings, the claimant is automatically considered disabled. Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998). If the claimant's impairment does not meet or equal one of the listed impairments, as a fourth step, she will have to show that she cannot perform her former work. 20 C.F.R. § 404.1520(e). If the claimant cannot perform her former work, she must show as a fifth and final step that she is prevented from doing any other work. A claimant is entitled to receive disability benefits only if she cannot perform any gainful employment. 20 C.F.R. § 404.1520(f) and (g).

The initial burden of establishing disability is on the claimant. See 42 U.S.C. ยง 423(d)(5). Once the claimant demonstrates she is incapable of performing her past work, the burden shifts to the Commissioner to show that the claimant has the residual functional capacity to perform other substantial gainful activity in the national economy. See Balsamo v. Chater, 142 F.3d at 80. This may require the application of the Medical-Vocational Guidelines ("grid") which places claimants with severe exertional impairments who can no longer perform past work into grid categories according to their residual functional capacity, age, education, and work ...


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