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Kresin v. Colvin

United States District Court, Second Circuit

May 21, 2013

BRUCE KRESIN, Plaintiff,
v.
CAROLYN W. COLVIN, Comm'r of Soc. Sec., [1] Defendant.

LACHMAN & GORTON, PETER A. GORTON, ESQ. Endicott, NY, Counsel for Plaintiff.

U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II JOHN M. KELLY, ESQ. New York, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Bruce Kresin ("Plaintiff") against the Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 13, 15.) For the reasons set forth below, Plaintiff's motion is granted and Defendant's motion is denied.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born on October 25, 1972. Plaintiff has a high school education, and is able to communicate in English. He has most recently worked for short periods of time as a packer for a snack food company and as a stock clerk at a toy store. Prior to that, Plaintiff worked from 2004 through October of 2006 as a quality control inspector in a sheltered workshop. Generally, Plaintiff's alleged disability consists of diabetes, obesity, sleep apnea, gastroesophageal reflux disease (GERD), shortness of breath, back pain, knee pain and hand problems. His alleged disability onset date is October 15, 2006, and his date last insured is September 30, 2011.

B. Procedural History

On December 6, 2009, Plaintiff applied for Social Security Disability Insurance and Supplemental Security Income. Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On January 22, 2010, Plaintiff appeared before the ALJ, Richard West. (T. 19-39.) At the hearing, Plaintiff sought a determination of disability for a closed period - from Plaintiff's onset date, October 15, 2006, through July 24, 2008. (T. 22.) The ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act on February 19, 2010 (T. 5-18.) On January 26, 2012, the Appeals Council denied Plaintiff's request for review, rendering the ALJ's decision the final decision of the Commissioner. (T. 1-4.) Thereafter, Plaintiff timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following five findings of fact and conclusions of law. (T. 10-14.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his alleged onset date. (T. 10.) Second, the ALJ found that Plaintiff's diabetes mellitus, obesity, shortness of breath of undetermined etiology, and obstructive sleep apnea are severe impairments. ( Id. ) Third, the ALJ found that Plaintiff's impairments did not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. (T. 10-11.) The ALJ considered listing 9.08 and evaluated Plaintiff's obesity under the guidelines set forth in Social Security Ruling 02-1p. ( Id. ) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to perform light work as defined in 20 C.F.R. §§ 404.1567(b) and 416.967(b), except Plaintiff can only stand and/or walk for 2 hours and sit for 6 hours, can only occasionally perform postural functions, and needs to avoid concentrated exposure to fumes, dust and similar occupational irritants. (T. 11-14.) Fifth, and finally, the ALJ determined that Plaintiff can perform his past relevant work as a quality insurance inspector. (T. 14.)

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

A. Plaintiff's Arguments

Plaintiff makes three separate arguments in support of his motion for judgment on the pleadings. First, Plaintiff argues that the ALJ erred in failing to find Plaintiff's lumbar disc disease, degenerative joint disease, and carpal tunnel syndrome severe, and erred in failing to consider their combined effect. (Dkt. No. 13 at 6-10 [Pl.'s Mem. of Law].) Second, Plaintiff argues that the ALJ erred in failing to properly assess the medical evidence and in failing to apply the treating physician rule. ( ...


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