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Andrea Perry v. Michael J. Astrue

January 31, 2012

ANDREA PERRY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Gary L. Sharpe Chief Judge

MEMORANDUM-DECISION AND ORDER

I. Introduction

Plaintiff Andrea Perry challenges the Commissioner of Social Security's denial of Supplemental Security Income (SSI) and seeks judicial review under 42 U.S.C. §§ 405(g) and 1383(c)(3).*fn1 (See Compl., Dkt. No. 1.) Upon reviewing the administrative record and carefully considering the arguments, the Commissioner's decision is reversed and remanded.

II. Background

On, June 9, 2008, Perry filed an application for SSI under the Social Security Act (the Act), alleging disability since March 15, 2008. (Tr.*fn2 at 5.) After her application was denied, Perry requested a hearing before an Administrative Law Judge (ALJ), which was held on March 3, 2010 and June 10, 2010. (Id. at 21-39, 40-59, 76-77.) On July 28, 2010, the ALJ issued a decision denying the requested benefits, which became the Commissioner's final decision upon the Social Security Administration Appeals Council's denial of review. (Id. at 5-15, 60-62.)

Perry commenced the present action by filing a complaint on January 21, 2011, seeking review of the Commissioner's determination. (Compl., Dkt. No. 1.) The Commissioner filed an answer and a certified copy of the administrative transcript. (Dkt. Nos. 6, 7.) Each party, seeking judgment on the pleadings, filed a brief. (Dkt. Nos. 9, 12.)

III. Contentions

Perry contends that the Commissioner's decision is not supported by substantial evidence or the appropriate legal standards. Specifically, Perry claims the ALJ: (1) erred when he found Perry did not meet listing 12.05(C); (2) improperly considered Perry's non-exertional impairment; and (3) failed to adequately consider the opinion of Perry's treating physician. (See Dkt. No. 9 at 6-12.) The Commissioner counters that substantial evidence supports the ALJ's decision.(See generally Dkt. No. 12.)

IV. Facts

The evidence in this case is undisputed and the court adopts the parties' factual recitations. (See Dkt. No. 9 at 1-2; Dkt. No. 12 at 1-12.)

V. Standard of Review

The standard for reviewing the Commissioner's final decision under 42 U.S.C. § 405(g) is well established and will not be repeated here. For a full discussion of the standard and the five-step process used by the Commissioner in evaluating whether a claimant is disabled under the Act, the court refers the parties to its previous opinion in Christiana v. Comm'r of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).

VI. Discussion

Perry's arguments almost exclusively rely on an opinion rendered by Dr. David Frey.*fn3 (See Dkt. No. 9 at 6-9; see also Tr. at 367-69.) However, as the Commissioner aptly notes, this opinion was rendered on August 17, 2010, roughly three weeks after the ALJ issued his decision. (See Tr. at 15, 368; Dkt. No. 12 at 21.) Nevertheless, this evidence was received by the Appeals Council. (Tr. at 63). Thus, to the extent Perry argues that the ALJ erred, the court disagrees. But the inquiry in this case does not end with the ALJ's decision since the Appeals Council's review is also relevant in determining whether the denial of SSI was supported by substantial evidence.*fn4 See Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996) (holding "that the new ...


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