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James E. Avery v. Michael J. Astrue

October 22, 2012

JAMES E. AVERY, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Plaintiff brought this action pursuant to the Social Security Act (the "Act"), 42. U.S.C. §§ 405(g), 1383(c)(3), seeking judicial review of a final decision of the Commissioner of Social Security (the "Commissioner"), denying his applications for disability insurance benefits ("DIB") and Supplemental Security Income ("SSI"). Plaintiff requests that the Court reverse the Administrative Law Judge's ("ALJ") decision or remand the case to the ALJ.

Currently before the Court are Plaintiff's and Defendant's cross-motions for judgment on the pleadings or, in the alternative, for summary judgment. See Dkt. Nos. 14, 15.

II. BACKGROUND

A. Procedural history

On May 30, 2007, Plaintiff filed applications for DIB and SSI benefits, citing a torn rotator cuff as his disabling condition. See Administrative Record ("AR") at 99-106. In both applications, Plaintiff alleged an onset date of January 1, 2007. See id. at 99, 103. The Social Security Administration denied his applications on August 30, 2007, and Plaintiff thereafter filed a timely request for a hearing before an ALJ on October 5, 2007. See id. at 71-78. ALJ Arthur Patane conducted that hearing in Albany, New York on March 23, 2009. See id. at 41-63. Plaintiff appeared with legal counsel and testified. See id.

In a decision dated June 23, 2009, ALJ Patane denied Plaintiff's claims for DIB and SSI benefits. See id. at 10-18. ALJ Patane stated that he considered all of the evidence in the record and made the following findings:

1) Plaintiff had not engaged in substantial gainful activity since January 1, 2007, the alleged onset date.

2) Plaintiff had the following severe impairment: right rotator cuff tear.

3) Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings").

4) Plaintiff had the residual functional capacity ("RFC") to perform the full range of light work.

5) Plaintiff was unable to perform his past relevant work.

6) Plaintiff was born on April 9, 1962. When he applied for DIB and SSI, Plaintiff was forty-four years old which is defined as a younger individual aged eighteen to forty-nine.

7) Plaintiff had a limited education and communicated in English.

8) Transferability of job skills was not material because the Medical-Vocational Guidelines (the "Grids") in 20 C.F.R. Part 404, Subpart P, Appendix 2 directly supported a finding of "not disabled."

9) In light of Plaintiff's age, education, work experience, and RFC, there were jobs that existed in significant numbers in the national economy that Plaintiff could perform.

10) Plaintiff had not been under a disability as defined by the Act since January 1, 2007, the alleged onset date.

See AR at 12-17.

The ALJ's decision became the Commissioner's final decision on July 21, 2009, when the Appeals Council denied Plaintiff's request for review. See id. at 1-3.

On March 1, 2010, Plaintiff commenced this action. See Dkt. No. 1. He filed a supporting brief on March 8, 2010.*fn1 See Dkt. No. 14. Defendant thereafter filed an answer on October 4, 2010, see Dkt. No. 9, and a brief in opposition on April 21, 2011, see Dkt. No. 15.

B. Plaintiff's medical history

Plaintiff was treated at North Dutchess Hospital in Rhinebeck, New York, on August 20, 2006, for a right shoulder injury that he sustained at work. See AR at 182-86. Plaintiff alleged that his injury caused radiating pain down his arm. See id. at 185. An x-ray of Plaintiff's right shoulder showed no acute fracture or dislocation, preserved joint spaces, and no abnormal calcifications. See id. ...


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