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Kane v. Astrue

United States District Court, E.D. New York

April 26, 2013

STEVEN KANE, Plaintiff,
MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

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[Copyrighted Material Omitted]

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For Steven Kane, Plaintiff: Candace Scott Appleton, United States Attorneys Office, Brooklyn, NY; Ronald L. Epstein, Grey and Grey L.L.P., Farmingdale, NY.

For Michael J. Astrue, Commissioner of Social Security, Defendant: Candace Scott Appleton, LEAD ATTORNEY, United States Attorneys Office, Brooklyn, NY; SOCIAL SECURITY ADMINISTRATION - GENERIC, Social Security Administration.


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HON. WILLIAM F. KUNTZ, II, United States District Judge.

Steven Kane (" Plaintiff" ) brings this action pursuant to 42 U.S.C. § 405(g), claiming that the Commissioner of Social Security (" Defendant" ) improperly denied his application for Social Security disability insurance benefits. Plaintiff moves for an order reversing the Commissioner's decision or, in the alternative, remanding his case back to the Commissioner for further proceedings. Defendant moves for an order affirming the decision. For the reasons that follow, this Court reverses the Commissioner's decision denying disability benefits and remands for further consideration.


Plaintiff was born in 1963 and has a ninth-grade education. Tr. at 16, 89, 130. From 1979 to 2008, he worked in construction and home improvement. Id. at 17, 127. In February 2008, Plaintiff fell down several steps while working. Id. at 17, 89. A few weeks later, Plaintiff tried to return to work, but stopped after three days due to severe pain. Id. at 17.

On June 25, 2009, Plaintiff filed an application for disability benefits with the Social Security Administration (" SSA" ), claiming that he had cervical, left shoulder, and lumbar sprains from his February 2008 fall and was unable to work. Id. at 89-90, 126. The application was denied. Id. at 35, 50-57. Plaintiff requested a hearing, which was held before Administrative Law Judge (" ALJ" ) Andrew S. Weiss on May 13, 2010. Id. at 13-34. Two weeks later, the ALJ found Plaintiff was not disabled and denied him benefits. Id. at 36-45. Plaintiff sought review of the ALJ's decision by the Social Security Administration's (" SSA" ) Appeals Council. Id. at 11-12. On May 19, 2011, the Appeals Council denied Plaintiff's request for review, rendering ALJ Weiss' decision the final decision of the Commissioner. Id. at 1-6. Plaintiff then petitioned this Court for review.


When a claimant challenges the SSA's denial of disability benefits, the Court's function is not to evaluate de novo whether the claimant is disabled, but rather to determine only " 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); see also Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009); 42 U.S.C. § 405(g) (" The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive ...." ). Substantial evidence is " more than a mere scintilla" ; it is " 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, 28 L.Ed.2d 842 (1971) (quoting Consol. Edison Co. of N.Y., Inc. v. NLRB, 305 U.S. 197, 229, 59 S.Ct. 206, 83 L.Ed. 126 (1938)); Moran, 569 F.3d at 112 (quoting Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008)). The substantial-evidence test applies not only to the Commissioner's factual findings, but also to inferences and conclusions of law to be drawn from those facts. See, e.g., Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 214 (S.D.N.Y. 1999) (Sweet, J.). In determining whether the record contains substantial evidence to support a denial of benefits, the reviewing court must examine the entire record, weighing the evidence on both sides to ensure that the claim " has

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been fairly evaluated." See, e.g., Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999) (quoting Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983)) (quotation marks omitted).

It is the function of the SSA, not the courts, " to resolve evidentiary conflicts and to appraise the credibility of witnesses, including the claimant." Carroll v. Sec'y of Health & Human Servs., 705 F.2d 638, 642 (2d Cir. 1983) (citing Richardson, 402 U.S. at 399); see also Clark v. Comm'r of Soc. Sec., 143 F.3d 115, 118 (2d Cir. 1998). Although the ALJ need not resolve every conflict in the record, " the crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence." Calzada v. Asture, 753 F.Supp.2d 250, 269 (S.D.N.Y. 2010) (Sullivan, J.) (quoting Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984)) (quotation marks omitted). To fulfill this obligation, the ALJ must not only " adequately explain his reasoning in making the findings on which his ultimate decision rests," but also must " address all pertinent evidence." Id. " [A]n ALJ's failure to acknowledge relevant evidence or to explain its implicit rejection is plain error." Id. (internal quotation marks omitted); Rodriguez v. Astrue, No. 11 CIV. 7720, 2012 WL 4477244, at *30 (S.D.N.Y. Sept. 28, 2012) (McMahon, J.) (quoting Kuleszo v. Barnhart, 232 F.Supp.2d 44, 57 (W.D.N.Y.2002) (Siragusa, J.)) (same).


I. Applicable Law

The Social Security Act defines the term " disability" to mean an " 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." Burgess, 537 F.3d at 119-20 (quoting 42 U.S.C. § 423(d)(1)(A)) (quotation marks omitted). In addition, " [t]he impairment must be of 'such severity that [the claimant] is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." ' Shaw v. Chater, 221 F.3d 126, 131-32 (2d Cir. 2000) (quoting 42 U.S.C. § 423(d)(2)(A)).

In determining whether a claimant is disabled, the Commissioner is required to apply the five-step sequential process set forth in 20 C.F.R. § 404.1520. Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999). While the claimant bears the burden of proving the first four steps, the burden shifts to the Commission at step five. Rosa, 168 F.3d at 77. In the first step, the Commissioner considers whether the claimant is presently working in substantial gainful activity. 20 C.F.R. § 404.1520(a)(4)(i); Rosa, 168 F.3d at 77. If the claimant is not so engaged, the Commissioner next considers whether the claimant has a " severe impairment" that significantly limits his physical or mental ability to do basic work activities. 20 C.F.R. § 404.1520(a)(4)(ii); Rosa, 168 F.3d at 77. If the severity requirement is met, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment that is listed in Appendix 1 of the regulations, or is equal to a listed impairment. 20 C.F.R. § 404.1520(a)(4)(iii); 20 C.F.R. Part 404, Subpart P, Appendix 1; Rosa, 168 F.3d at 77. If the claimant has such an impairment, there will be a finding of disability. If not, the fourth inquiry is to determine whether, despite the claimant's severe impairment, the claimant's residual functional capacity allows the claimant to perform his or her past work. 20 C.F.R. § 404.1520(a)(4)(iv);

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Rosa, 168 F.3d at 77. Finally, if a claimant is unable to perform past work, the Commissioner then determines whether there is other work, such as " light work" discussed infra, that the claimant could perform, taking into account, inter alia, the claimant's residual functional capacity, age, education, and work experience. 20 C.F.R. § 404.1520(a)(4)(v); Rosa, 168 F.3d at 77.

II. The ALJ's Decision

Using the five-step process, the ALJ found that: 1) Plaintiff had not engaged in any substantial gainful activity since February 29, 2008, the date of the accident; 2) Plaintiff has severe medically determinable impairments, namely cervical and lumbar syndromes and a left shoulder impairment; 3) Plaintiff's severe impairments do not meet nor medically equal any impairment listed in 20 C.F.R. Part 404, Subpart P, Appendix 1; 4) Plaintiff is unable to perform any relevant past work; and 5) Plaintiff has the residual functional capacity to perform the full range of " light work" as defined in 20 C.F.R. 404.1567(b). Tr. 41, 44. Pursuant to 20 C.F.R. 404.1567(b), light work " involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds," as well as " a good deal of walking or standing." To be considered capable of performing light work, an individual must have the ability to do substantially all of these activities. Id.

In determining that Plaintiff has the residual functional capacity to perform light work, which is the only determination contested by Plaintiff, the ALJ relied on Plaintiff's own testimony about his pain, medications, and difficulties with daily ...

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