PETER W. ANTONOWICZ, ESQ., Office of Peter W. Antonowicz, Rome, New York, for the Plaintiff.
JEREMY A. LINDEN, ESQ., Social Security Administration Office of Regional General Counsel Region II, New York, New York, for the Defendant.
GARY L. SHARPE, Chief District Judge.
The above-captioned matter comes to this court following a Report-Recommendation by Magistrate Judge Andrew T. Baxter, duly filed June 5, 2013. Following ten days from the service thereof, the Clerk has sent the file, including any and all objections filed by the parties herein.
No objections having been filed, and the court having reviewed the Magistrate Judge's Report-Recommendation for clear error, it is hereby
ORDERED that the Report-Recommendation of Magistrate Judge Andrew T. Baxter filed June 5, 2013 is ACCEPTED in its entirety for the reasons state therein; and it is further
ORDERED that the Clerk is directed to substitute Carolyn W. Colvin, Acting Commissioner of Social Security, for defendant Michael J. Astrue, and amend the caption accordingly; and it is further
ORDERED that the decision of the Commissioner is REVERSED and this case REMANDED, pursuant to sentence four of 42 U.S.C. § 405(g), for a proper determination of plaintiff's residual functional capacity and other further proceedings, consistent with the Report-Recommendation. Proceedings on remand should be conducted on an expedited basis; and it is further
ORDERED, that the Clerk of the Court is to mail copies of the Order to the parties in accordance with the court's local rules.
IT IS SO ORDERED.
This matter was referred to me for report and recommendation by the Honorable Gary L. Sharpe, Chief United States District Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). This case has proceeded in accordance with General Order 18.
I. PROCEDURAL HISTORY
Plaintiff first "protectively filed" applications for both Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") benefits effective April 8, 2005. (Administrative Transcript ("T.") 12, 22, 40-45). The applications were denied on June 9, 2005. (T. 34-38). Administrative Law Judge ("ALJ") Gordon Mahley conducted a hearing on September 13, 2006, at which the plaintiff testified. (T. 188-221). On April 21, 2007, the ALJ issued a decision denying plaintiff's applications for benefits. (T. 12-20). The Appeals Council declined to review the ALJ's unfavorable decision on July 13, 2007. (T. 4-6). Plaintiff filed an appeal of the Commissioner's decision in U.S. District Court in this district on September 10, 2007. (No. 6:07-CV-931 (NAM)).
The plaintiff subsequently filed another application for SSI, and was found to be disabled by the Commissioner as of October 3, 2007. He is currently receiving SSI benefits. Plaintiff could not be found eligible for DIB after his insured status ended on March 31, 2006. (Pl.'s Brf. at 2, Dkt. No. 14).
In a decision dated September 1, 2010, then Chief U.S. District Judge Norman A. Mordue ruled that the ALJ's April 21, 2007 Residual Functional Capacity ("RFC") determination was not supported by substantial evidence, and that the ALJ failed to fully develop the administrative record. Schmelzle v. Astrue, 6:07-CV-931 (NAM), 2010 WL 3522305, at *3-4 (N.D.N.Y. Sept. 1, 2010). Judge Mordue remanded the case to the Commissioner for further proceedings, and he directed the ALJ, on remand, to attempt to obtain additional opinion evidence regarding plaintiff's functional limitations from his treating physician. Id., 2010 WL 3522305, at *4.
On remand, ALJ Mahley conducted a de novo hearing on July 11, 2011, at which plaintiff again testified. (T. 330-56). Because plaintiff's treating doctors from the relevant time period were not available to provide further opinion evidence, the plaintiff submitted a purportedly retrospective RFC assessment from plaintiff's current treating physician, Dr. Teng. (T. 237, 241, 321-23). The ALJ acknowledged that, in light of the award of SSI benefits to plaintiff effective October 3, 2007, the issue on remand was whether plaintiff was entitled to DIB benefits during a closed period, between January 1, 2004-the amended onset date claimed by plaintiff-and October 2, 2007. (T. 333, 352-54; Pl.'s Brf. at 4). The ALJ issued a decision dated October 13, 2011, denying plaintiff's claim for DIB benefits during the closed period and finding that he was not disabled between January 1, 2004 and the date of the decision. (T. 230-31, 239). On July 9, 2012, the Appeals Council advised that it would not further review the ALJ Mahley's decision on remand, which therefore became the final decision of the Commissioner. (T. 222-24).
II. GENERALLY APPLICABLE LAW
A. Disability Standard
To be considered disabled, a plaintiff seeking disability insurance benefits or SSI disability benefits must establish that he or she is "unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months...." 42 U.S.C. § 1382c(a)(3)(A). In addition, the plaintiff's
physical or mental impairment or impairments [must be] of such severity that he 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, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.
42 U.S.C. § 1382c(a)(3)(B).
The Commissioner uses a five-step process, set forth in 20 C.F.R. sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims.
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 meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him [per se] disabled.... 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.
Selian v. Astrue,
708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see 20 C.F.R. §§ 404.1520, 416.920. The plaintiff has the burden of establishing disability at the first four steps. However, if the plaintiff establishes that her impairment prevents her from performing her past work, there is a "limited burden shift to the Commissioner" to "show that there is work in the national economy ...