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Kevin D. Yager v. Michael Astrue

August 30, 2012

KEVIN D. YAGER, PLAINTIFF,
v.
MICHAEL ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Neal P. McCURN, Senior District Court Judge

MEMORANDUM - DECISION AND ORDER

This action was filed by plaintiff Kevin D. Yager ("plaintiff") pursuant to 42 U.S.C. § 405(g) to review the final determination of the Commissioner ("Commissioner") of the Social Security Administration ("SSA"), who denied his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits. Currently before the court is plaintiff's motion for judgment on the pleadings (Doc. No. 12) seeking reversal of the Commissioner's decision with a finding of disability and a remand for the purpose of determining benefits, or in the alternative, an order of remand for further administrative proceedings. Also before the court is the Commissioner's motion for judgment on the pleadings (Doc. No. 15) seeking affirmation of the Commissioner's findings. For the reasons set forth below, the Commissioner's motion is granted, and plaintiff's motion is denied.

I. Procedural History and Facts

A. Procedural History

Plaintiff filed for Social Security Disability ("DIB") and Supplemental Security Income ("SSI") benefits on June 10, 2005, with an alleged onset date of September 1, 2002. Plaintiff's claim was initially denied, and on August 23, 2005, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). The initial hearing was held on May 11, 2007 in Syracuse, New York before ALJ Robert E. Gale ("ALJ Gale"), who denied plaintiff's claim on May 23, 2007. The Appeals Council granted a request for review on September 5, 2007, vacating and remanding the decision, and directing the ALJ to obtain updated medical records from plaintiff's treating and other medical sources, including medical source statements. The ALJ was also instructed to obtain a consultive mental status examination, and obtain, if necessary, medical and/or vocational expert evidence. The Appeals Council noted that if the additional evidence did not adequately clarify the record, the ALJ "will recontact the medical sources for further information." Tr.*fn1 40.

A second hearing was held before ALJ Gale on June 19, 2009. Also present at that hearing was vocational expert ("VE") Victor G. Alberigi. On July 22, 2009, the ALJ issued an unfavorable decision. The Appeals Council denied plaintiff's request for review, and the ALJ's decision became the Commissioner's final determination. Plaintiff's appeal was filed in this court on May 9, 2011.

B. Facts

The following facts are taken from plaintiff's statement of facts. The Commissioner incorporates the statement of facts contained within the ALJ's decision dated July 22, 2009, at Tr. 13-26, and the court supplements plaintiff's facts as needed from the record.

Plaintiff was born on September 26, 1962 and was 39 years old on the alleged disability onset date of September 1, 2002. Plaintiff completed the eighth grade, and attended high school up to the 10th grade in a Board of Cooperative Educational Services ("BOCES") program. Plaintiff reported difficulty in school and was placed, at age sixteen, in the House of the Good Shepard for tardiness, and also spent time at the Hillbrook Juvenile Detention Center. Plaintiff was repeatedly homeless, living in shelters prior to becoming an inpatient at Commonweath Place for chemical dependency treatment in August of 2004. Plaintiff has a significant history of substance abuse, and was in the Conifer Park treatment program in March 2003. Plaintiff alleges that he ceased abusing substances when he entered Commonwealth Place for inpatient treatment in 2004, but reported to a consultive examiner in 2008 that he wasn't drinking because he had no money, and used marijuana when he needed to.*fn2 Plaintiff was required to leave Commonwealth Place, a non-smoking facility, when he relapsed on cigarettes. Plaintiff alleges that he has mental scarring due to his upbringing in an abusive environment, after his father committed suicide when plaintiff was eleven years old. Plaintiff states that he had several concussions from sports injuries and assaults beginning in adolescence. Plaintiff has been arrested for assault, and the record indicates that he was stabbed by the owner of a home he tried to burglarize.

Plaintiff began treatment at St. Joseph's Mental Health Clinic in 2004 with Miron Iosilevich, M.D. ("Dr. Iosilevich") and therapist Harvey Delson, LCSW. Plaintiff underwent one-on-one counseling at Crouse Chemical Dependency Services with Lisa Burch, therapist, and Steven L. Batki, M.D. ("Dr. Batki") as his treating psychiatrist. Plaintiff was diagnosed with Attention Deficit Hyperactivity Disorder ("ADHD"), cannabis dependence and alcohol/poly substance abuse in sustained remission, and mood disorder NOS.

II. Discussion

Plaintiff argues that the Commissioner's determination of plaintiff's RFC is in error; the ALJ did not properly evaluate the medical evidence; and the ALJ improperly evaluated plaintiff's credibility. The Commissioner argues that the ALJ's decision, finding that plaintiff was not disabled, is supported by substantial evidence and therefore must be affirmed.

A. Standard of Review

This court does not review a final decision of the Commissioner de novo, but instead "must determine whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004) (internal citations omitted). See also Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Halloran, 362 F.3d at 31 (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420 (1971)). "An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Gravel v. Barnhart, 360 F.Supp.2d 442, 444-45 (N.D.N.Y. 2005) (citing Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)). When reviewing a determination by the Commissioner, a district court, in its discretion, "shall have the power to enter, upon the pleadings and transcript of 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. § 405(g).

B. Disability Defined

An individual is considered disabled for purposes of his or her eligibility for Social Security Disability if he or she is unable 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 ...


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