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Gallup v. Commissioner of Social Security

United States District Court, N.D. New York

June 3, 2014


Louise M. Tarantino, Esq., Empire Justice Center, Albany, New York, for Plaintiff.

Hon. Richard S. Hartunian, United States Attorney, Benil Abraham, Esq., Special Assistant United States Attorney Social Security Administration Office of Regional General Counsel, Region II, New York, New York.


NORMAN A. MORDUE, Senior District Judge.


Plaintiff Nicholas Gallup filed this action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) and asks the Court to reverse the Commissioner's decision to deny his application for disability benefits and remand this matter for payment of benefits. Presently before the Court are the parties' cross-motions for judgment on the pleadings. Dkt. Nos. 14, 16.


Plaintiff was born on June 26, 1988. He left high school in ninth grade and reads at a fourth or fifth grade level. He worked for Walmart as a "cart pusher" until he was fired in June 2009. T.39.

On January 20, 2010, plaintiff applied for child's insurance benefits based on disability. At the same time, he filed an application for supplemental security income. In both applications, plaintiff alleged that he became disabled on June 8, 2009 and that he suffers, among other things, low back pain, depressive disorder, anxiety disorder, learning disorder, paranoid personality disorder and borderline intellectual functioning. On May 13, 2011, after obtaining plaintiff's medical records and holding a hearing, Administrative Law Judge ("ALJ") Arthur Patane issued a decision finding that plaintiff "was not disabled as defined in section 223(d) of the Social Security Act prior to June 25, 2010, the date he attained age 22." T.28. On September 17, 2011, the Appeals Council denied plaintiff's request for review and the ALJ's decision became the Commissioner's final decision. T.1-6. This action followed.

III. Administrative Hearing

On March 1, 2011, the ALJ conducted a hearing regarding plaintiff's application for disability benefits. T.34. Plaintiff testified that he was classified as emotionally disturbed and learning disabled in school and placed in a special education class. T.43. Plaintiff stated that he completed eighth grade, left school when he was in ninth grade and has been unable to obtain his GED. T.43. Plaintiff described his ability to add and subtract as "bad" and his ability to spell as "very bad". T.44. Plaintiff stated that he could not "read that well at all" and that he would "have people read stuff to [him] and then most of the time [he will] understand some of it." T.44.

Plaintiff stated that he last worked in June 2009, as a "cart pusher" for Walmart. T.38. He testified that he was terminated "due to absence and tardiness, because [he] had severe problems with quite a few other workers that I was working with to the point where [he] had severe anger issues and [he] would fly off the wall at them. I mean, I screamed and yelled at management." T.39.

Plaintiff testified that he lives in an apartment with one roommate. T.38. Plaintiff stated that he has a driver's license and a vehicle. T.41-42.

Plaintiff testified that during the day, he "normally" goes to his aunt's residence, where he visits with her, watches television and eats all his meals. T.41. Plaintiff stated that he then goes back home and goes to sleep. T.41.

Plaintiff stated that when he is at home, he uses his computer to "[p]lay numerous games" and talk to friends who live "out of town." T.42. Plaintiff testified that "[s]ometimes" he cleans his apartment. T.41. Plaintiff stated that he gets "sidetracked" "everyday with the simplest tasks" and explained that when he tries to clean his house, he will start in his bedroom, "jump to the living room, then jump to the kitchen and... all over the place." T.45.

Plaintiff stated that the pain level in his back is an eight "on most days" but when it is severe, "it's a ten". T.50. Plaintiff testified that he "toss[es] and turn[s] almost all night, trying to get comfortable because the pain is going all the way up [his] back." T.50. Plaintiff stated that the pain is "constant" and that if he stands for too long, i.e., thirty minutes, "it hurts and it'll go up my neck and it'll go down to my legs." T.50. Plaintiff testified that sitting "normally" causes back pain, but that if he moves around, "then for the most part [he is] okay" and "can go back to sitting again." T.51. Plaintiff stated that he can sit "[m]aybe about an hour" before he needs to stand up and move around. T.51.

Plaintiff testified that his doctor prescribed Lortab for his back until his "ex-fiance" began stealing it. T.55. Plaintiff stated that he also received a prescription for a muscle relaxant. T. 59. Plaintiff testified that he takes "Ibuprofen and Aleve and Advil" for back pain. T.59. Plaintiff testified that he also takes Cymbalta and Pepcid. T.43.

Plaintiff stated that his memory is "very bad" and that he forgets "appointments, names, numbers" and medication, which his roommate reminds him to take. T.45. Plaintiff testified that his poor memory affects his driving and he forgets where he is going. T.44.

Plaintiff stated that he has no social habits and that he feels "paranoid to leave the house" because he feels "that everyone is looking at me or everyone is talking about me and it's really scary." T.47. Plaintiff testified that he goes grocery shopping at "12:00 or 1:00 in the morning" when "the store is completely empty and if it's not empty, there's only a few people in there." T.47.

Plaintiff testified that he has nightmares two to three times a week and that he has problems with suicidal thoughts "three or four times a week." T.47. Plaintiff testified that after his uncle died, he heard him "talk to him almost every night" and on numerous occasions, he has heard people calling his name when "there's nobody there." T.48. Plaintiff stated that he has severe mood swings, "like one minute I could be talking really calm to somebody and the next minute I'm screaming and yelling at people." T.48. Plaintiff stated that he recently had an altercation with a customer service manager at a retail store who "was doing her job" and he "started flipping and screaming at her along with other store managers". T48. Plaintiff testified that he has had fifteen or twenty angry outbursts since then. T.49.

IV. ALJ's Decision

To be eligible for Social Security disability benefits, a claimant must establish "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." 42 U.S.C. § 423(d)(1)(A). There is a five-step analysis for evaluating disability claims:

"In essence, if the Commissioner determines (1) that the claimant is not working, (2) that he has a severe impairment, ' (3) that the impairment is not one [listed in Appendix 1 of the regulations] that conclusively requires a determination of disability, and (4) that the claimant is not capable of continuing in his prior type of work, the Commissioner must find him disabled if (5) there is not another type of work the claimant can do." The claimant bears the burden of proof on the first four steps, while the Social Security Administration bears the burden on the last step.

Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003) (quoting Draegert v. Barnhart, 311 F.3d 468, 472 (2d Cir. 2002)); Shaw v. Chater, 221 F.3d 126, 132 ...

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