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Matthew Lee Overby v. Carolyn W. Colvin

April 29, 2013

MATTHEW LEE OVERBY, PLAINTIFF,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Earl S. Hines United States Magistrate Judge

REPORT AND RECOMMENDATION

The Commissioner of Social Security ("Commissioner") denied Matthew Lee Overby's application for disability insurance benefits under the Social Security Act. In this action for judicial review under 42 U.S.C. § 405(g), the sole issue is whether the court should remand the case and order additional evidence to be taken before the Commissioner.

I. Procedural Background

On May 1, 2010, Overby protectively applied for disability insurance benefits. He claimed disability beginning on July 18, 2009, due to a discogenic and degenerative back disorder. (T. 16, 71).*fn2 Following an evidentiary hearing, an administrative law judge, Mary Sparks ("ALJ Sparks"), denied Overby's application on July 25, 2011. (T. 16-24). After unsuccessfully requesting Appeals Council review, Overby timely instituted this proceeding. (Dkt. No. 1).

II. Commissioner's Decision

When adjudicating Overby's claim, ALJ Sparks utilized a five-step sequential evaluation procedure prescribed by regulation and approved by courts as a fair and just way for determining disability applications in conformity with the Social Security Act. See 20 C.F.R. § 404.1520; Bowen v. Yuckert, 482 U.S. 137, 153 (1987) (citing Heckler v. Campbell, 461 U.S. 458, 461 (1983)). A full discussion of the Commissioner's five-step process is contained in Christiana v. Commissioner of Soc. Sec. Admin., No. 1:05-CV-932, 2008 WL 759076, at *1-2 (N.D.N.Y. Mar. 19, 2008).

ALJ Sparks determined that Overby carried his Step 1 burden to show that he has not engaged in substantial gainful activity since his alleged onset of disability, and also met his Step 2 burden to show that he has a "severe" impairment consisting of minimal diffuse spondylosis.*fn3 (T. 18). At Step 3, ALJ Sparks found that Overby did not prove that his impairment meets or equals a presumptively disabling condition. Id.*fn4

Given these initial findings, ALJ Sparks was required to next assess Overby's "residual functional capacity" before proceeding to remaining steps.*fn5

In that respect, she found that Overby's ability to perform work-related activities is reduced by his impairment to the "sedentary" exertional level*fn6 with several additional limitations.*fn7 (T. 19-22).

At Step 4, ALJ Sparks determined whether Overby's impairments prevent him from performing his past relevant work. Overby's past relevant work included occupations as a resident supervisor, warehouse worker, repairer of manufactured homes, and cashier with stocking responsibilities. (T. 57-58). Toward this end, ALJ Sparks obtained and relied up evidence from a vocational expert, David Sypher ("VE Sypher"). ALJ Sparks posed a hypothetical question that asked VE Sypher to state whether an individual with the same residual functional capacity and limitations as ascribed to Overby could perform any of his past relevant work. (T. 63). VE Sypher testified that an individual with such restrictions can still perform work as a resident supervisor as that occupation is defined in the Dictionary of Occupational Titles ("DOT") Code 187.167-186.*fn8 Id.

ALJ Sparks accepted this testimony as credible; found that Overby can still perform past relevant work as resident supervisor; and, accordingly, concluded that he was not disabled. (T. 23). Overby's application for benefits was, therefore, denied. (T. 24).

III. Request For Remand

Overby does not challenge ALJ Sparks's findings and conclusions. Instead, Overby proffers additional evidence -- submitted for the first time to this court -- and requests remand for consideration of that evidence:

The decision should be remanded based upon the new and material evidence attached hereto as this evidence warrants changing the Administrative Law ...


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