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Rebecca Funk v. Michael J. Astrue

February 15, 2012




Plaintiff Rebecca Funk, brings the above-captioned action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny her application for supplemental social security ("SSI") and disability insurance benefits ("DIB").


On September 7, 2006, plaintiff filed an application for SSI and DIB benefits. (Administrative Transcript at p.12).*fn1 Plaintiff was 29 years old at the time of the application with prior work history as a book scanner. (T. 20). Plaintiff claims she suffered from sleeping problems, seizures, fibromyalgia, migraine headaches, scoliosis and restless leg syndrome. (T. 14-16, 99). Plaintiff claimed to be disabled as of March 11, 2003. (T. 94). On February 6, 2007, plaintiff's applications were denied and plaintiff requested a hearing by an ALJ which was held on July 30, 2008. (T. 12). On September 3, 2008, the ALJ issued a decision denying plaintiff's claim for benefits. (T. 12-22). The Appeals Council denied plaintiff's request for review on March 24, 2010, making the ALJ's decision the final determination of the Commissioner. (T. 1-3). 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).

Here, the ALJ found at step one that plaintiff has not engaged in substantial gainful activity since the alleged onset date, March 11, 2003. (T. 14). At step two, the ALJ concluded that plaintiff suffered from fibromyalgia, seizure disorder and migraine headaches which qualified as a "severe impairments" within the meaning of the Social Security Regulations (the "Regulations"). (T. 14). At the third step of the analysis, the ALJ determined that plaintiff did not have an impairment or combination of impairments that 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, "perform sedentary work as defined in 20 CFR 404.1567(a) and 416.967(a), which enables the claimant to sit for six hours in an eight-hour workday, stand or walk for two hours in an eight-hour workday, lift no more than 10 pounds and requires no exposure to moving machinery, hazards, heights or motor vehicles". (T. 16). At step four, the ALJ concluded that plaintiff was unable to perform any past relevant work. (T. 20). At step five, relying on the medical-vocational guidelines ("the grids") set forth in the Regulations, 20 C.F.R. Pt. 404, Subpt. P, App. 2, the ALJ found that plaintiff had the RFC to perform jobs existing in significant numbers in the national economy. (T. 21). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 21).

In seeking federal judicial review of the Commissioner's decision, plaintiff argues that:

(1) the ALJ should have recontacted Dr. Amelita Balagtas for clarification or additional information; and (2) the RFC determination is not supported by substantial evidence. (Dkt. No. 10).

A. ALJ's Duty to Recontact Consultative Examining Physician

An ALJ has an obligation to develop the administrative record, including, in certain circumstances, recontacting a source of a claimant's medical evidence, sua sponte, to obtain additional information. Lukose v. Astrue, 2011 WL 5191784, at *3 (W.D.N.Y. 2011) (citing Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998)). The ALJ will obtain additional evidence if he/she is unable to make a ...

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