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Patrick James O'connell v. Michael J. Astrue

March 28, 2013

PATRICK JAMES O'CONNELL, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court

DECISION AND ORDER

1. Plaintiff challenges an Administrative Law Judge's ("ALJ") decision, dated June 14, 2011, wherein the ALJ determined that Plaintiff was not disabled under sections 216(i) and 223(d) of the Social Security Act through December 31, 2008, Plaintiff's last date insured. Plaintiff filed an application for disability insurance benefits alleging that he became disabled beginning August 1, 2003. He now contends that the ALJ's determination is not based upon substantial evidence, and that new evidence warrants reversal.

2. On May 25, 2011, the ALJ held a hearing at which Plaintiff testified. After consideration of the evidence, including Plaintiff's medical records, the ALJ denied Plaintiff's application for disability insurance benefits. On December 16, 2011, the Appeals Council denied Plaintiff's request for review. Plaintiff filed the current civil action challenging Defendant's final decision in this Court on December 30, 2011.

3. Plaintiff filed a Motion for Judgment on the Pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure on June 14, 2012. Defendant also moved for such judgment in his favor on the same date. This Court finds the matter fully briefed and oral argument unnecessary. Judgment on the pleadings is appropriate where material facts are undisputed and where a judgment on the merits is possible merely by considering the contents of the pleadings. Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988).

4. A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § § 405(g), 1383(c)(3); Wagner v. Sec'y of Health and Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Commissioner's determination will be reversed only if it is not supported by substantial evidence or there has been a legal error. See Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979). Substantial evidence is that which amounts to "more than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S. Ct. 1420, 1427, 28 L. Ed. 2d 842 (1971). Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982), cert denied, 459 U.S. 1212 (1983).

5. "To determine on appeal whether the ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Williams on Behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). If supported by substantial evidence, the Commissioner's finding must be sustained "even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination considerable deference, and will not substitute "its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

6. The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act. See 20 C.F.R. § § 404.1520, 416.920. The United States Supreme Court recognized the validity of this analysis in Bowen v. Yuckert, 482 U.S. 137, 140-142, 107 S. Ct. 2287, 2291, 96 L. Ed. 2d 119 (1987), and it remains the proper approach for analyzing whether a claimant is disabled.

7. This five-step process is detailed below: First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience; the [Commissioner] presumes that a claimant who is afflicted with a "listed" impairment is unable to perform substantial gainful activity. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam) (quotations in original); see also 20 C.F.R. § 404.1520; Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).

8. Although the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See Bowen, 482 U.S. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). The final step of this inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his physical ability, age, education and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § 404.1520(f); Heckler v. Campbell, 461 U.S. 458, 460, 103 S. Ct. 1952, 1954, 76 L. Ed. 2d 66 (1983).

9. In this case, the ALJ made the following findings with regard to the five-step process set forth above: (1) Plaintiff did not engage in substantial gainful activity between August 1, 2003, his alleged onset date through December 31, 2008, the date he was last insured (R. 13);*fn1 (2) Plaintiff has the following severe impairments: "status post stent placement in the circumflex and left anterior descending arteries, coronary artery disease, and angina" (R. 13); (3) neither these impairments nor any combination of these impairments meets or medically equals a recognized disabling impairment under the regulations (R. 14); (4) Plaintiff retains the residual functional capacity ("RFC") to perform the full range of light work as defined in 20 C.F.R. 416.1567(b) (R. 14-18); and (5) Plaintiff was capable of performing his past relevant work as a dispatcher and truck lease/sales representative, work Plaintiff performed at a sedentary level of exertion, through the date last insured. (R. 18.)

10. Plaintiff first contends that this Court should remand the matter back to the Commissioner for consideration of new evidence regarding his alleged difficulty in walking. "The Social Security Act provides that a court may order the Secretary to consider additional evidence, 'but only upon a showing that there is new evidence which is material and that there is good cause for the failure to incorporate such evidence into the record in a prior proceeding.' " Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988) (quoting 42 U.S.C. § 405(g)). Thus, Plaintiff must establish that (1) his proffered evidence is in fact new and not merely cumulative of what is already in the record; (2) the evidence is material and probative to Plaintiff's condition during the time period for which benefits were denied; and (3) there is good cause for his failure to present the evidence earlier. Tirado, 842 F.2d at 597. "The concept of materiality requires, in addition, a reasonable possibility that the new evidence would have influenced the [Commissioner] to decide claimant's application differently." Id.

Plaintiff alleged that he had difficulty walking and driving due to left foot pain and a right knee problem, which had previously been diagnosed as necrosis. (R. 33-34, 129.) Plaintiff's purported new evidence centers on the affidavit of a neurologist who began treating Plaintiff in November 2011, only 11 months after the hearing but almost three years after Plaintiff's last insured date of December 31, 2008. (Aff. of Michael R. Stoffman, M.D., ¶¶ 1, 3-4, Docket No. 8-1.) The neurologist averred that a clinical examination at that time revealed indications of a possible spinal cord and/or brain pathology. (Stoffman Aff. ¶¶ 6-9.) As a result, the neurologist ordered lumber, thoracic, and cervical spine MRI tests to be performed. (Id. ¶¶ 10-12.) A cervical spine MRI revealed "that at the C5-6 level, there was absolutely critical spinal cord compression, where the spinal cord was compressed down to 3 mm." (Id. ¶¶ 14-15.) The neurologist diagnosed Plaintiff with cervical spondylotic myelopathy, opining in the present affidavit that "this is the worst case of spinal cord compression that I have seen in a patient that retains the ability to walk. In other words, it was surprising that [Plaintiff] could walk at all." (Id. ¶ 15.) It is further explained that "spinal cord compression in the neck area caused symptomatology in [Plaintiff's] lower extremities and has caused his instability to stand or walk." (Id. ¶ 16.) Surgeries were performed in January and April 2012 to alleviate the related symptoms. (Id. ¶¶ 18-22.)

As a result of his treatment of Plaintiff and his review of medical reports in the administrative ...


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