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Tanner v. Colvin

United States District Court, N.D. New York

May 28, 2014

Andrea Tanner, Plaintiff,
v.
Carolyn W. Colvin, Acting Commissioner of Social Security, in place of Michael Astrue, Defendant.

Olinsky Law Group Howard D. Olinsky, Esq., of counsel Syracuse, New York, Attorney for Plaintiff.

Hon. Richard S. Hartunian, United States Attorney, Andreea L. Lechleitner, Esq., Special Assistant United States Attorney Social Security Administration, Office of Regional General Counsel, Region II New York, New York, Attorney for Defendant.

MEMORANDUM-DECISION AND ORDER

NORMAN A. MORDUE, Senior District Judge.

INTRODUCTION

After the initial denial of her application for Supplemental Security Income, plaintiff requested a hearing. Administrative Law Judge ("ALJ") John P. Ramos held a hearing on August 12, 2009, at which plaintiff testified. By decision dated November 3, 2009, the ALJ determined that plaintiff was not disabled under the Social Security Act from April 25, 2007 to November 3, 2009. On September 10, 2010, the Appeals Council denied plaintiff's request for review; thus, the ALJ's decision became the final decision of the Commissioner of Social Security ("Commissioner").

Plaintiff seeks judicial review of the Commissioner's decision pursuant to 42 U.S.C. § 405(g). She asks the Court to reverse the Commissioner's decision denying benefits and to remand the matter for payment of benefits. In the alternative, she asks the Court to remand the matter to the ALJ for consideration of a report of Dr. Cynthia Starkey, which she contends should be considered as new and material evidence. As set forth below, the Court grants plaintiff's motion for judgment on the pleadings insofar as it seeks reversal and remand (Dkt. Nos. 12, 13), denies defendant's motion for judgment on the pleadings (Dkt. No. 14), reverses the Commissioner's decision, and remands for further administrative proceedings.

THE ADMINISTRATIVE RECORD

The Commissioner's brief states: "The Commissioner hereby incorporates the summaries of the procedural history and statement of facts set forth by plaintiff in her brief, with the exception of any inferences or conclusions asserted by plaintiff. The Commissioner also incorporates the summary of the facts contained in the ALJ's decision." Because there is no significant dispute regarding the facts in the record, the Court does not summarize them here.

THE ALJ DECISION

To be eligible for Supplemental Security Income, plaintiff must meet the income and resource requirements of 42 U.S.C. §§ 1382a and 1382b and establish that 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 12 months." 42 U.S.C. § 1382c(a)(3)(A). Her impairment must be of such severity that "[she] is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy[.]" 42 U.S.C. § 1382c(a)(3)(B). The impairment must result "from anatomical, physiological, or psychological abnormalities which are demonstrable by medically acceptable clinical and laboratory diagnostic techniques." 42 U.S.C. § 1382c(a)(3)(D).

The ALJ conducted the five-step analysis for evaluating disability claims. This process, mandated by the regulations, see 20 C.F.R. § 404.1520, is as follows:

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 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) (citations and alterations omitted). At the first step, the ALJ found that plaintiff was not engaged in substantial gainful activity. At the second step, the ALJ found that plaintiff had the following "severe impairments" that "significantly limit[] [her]... mental ability to do basic work activities": bipolar disorder type II, substance abuse disorder (in remission), and alcohol abuse disorder (in partial remission). See 20 C.F.R. § 416.920(c). He further found that plaintiff's alleged disabling symptoms from irritable bowel syndrome and bilateral shoulder tendinitis were not severe in that they did "not more than minimally affect the claimant's ability to engage in basic work activity."

The third step requires a determination of whether, based solely on the medical evidence, plaintiff had an impairment listed in Appendix 1 of the Regulations. 20 C.F.R., Pt. 404, Subpt. P, App. 1. "These are impairments acknowledged by the [Commissioner] to be of sufficient severity to preclude gainful employment. If a claimant's condition meets or equals the listed' impairments, he or she is conclusively presumed to be disabled and entitled to benefits." Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir. 1995). The ALJ concluded that plaintiff's impairments did not meet or medically equal the severity of the listed impairments, specifically listings 12.04 (affective disorders), 12.06 (anxiety-related disorders), and 12.09 (substance abuse disorders). He found that, because the claimant's mental impairments did not cause at least two "marked" limitations or one "marked" ...


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