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Rotolo v. Commissioner of Social Security

United States District Court, N.D. New York

June 9, 2014


Wayne A. Smith, Jr., Esq., Smith Hoke PLLC, Albany, New York, For Plaintiff.

Hon. Richard S. Hartunian, United States Attorney, Elizabeth Rothstein, 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 Rotolo filed this action pursuant to 42 U.S.C. §§ 405(g) asks the Court to reverse the Commissioner's decision to deny his application for disability insurance benefits. Presently before the Court are the parties' cross-motions for judgment on the pleadings. Dkt. Nos. 16, 17, 21, 27.


The Social Security Act defines disability as the "inability 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. § 423(d)(1)(A). To be eligible for disability benefits, the claimant must demonstrate that he was disabled on the date he was last insured for benefits. See Arnone v. Bowen, 882 F.2d 34, 37-38 (2d Cir. 1989). Here, the Commissioner determined that plaintiff was last insured for benefits on December 31, 2008, and he has not challenged that determination.

There is a five-step process for evaluating 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 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).

Using the five-step evaluation process, Administrative Law Judge ("ALJ") Elizabeth Koenneke issued a decision finding that plaintiff was not disabled. The ALJ found at step one, that plaintiff "did not engage in substantial gainful activity during the period from his alleged onset date of October 3, 2008, through his date last insured of December 31, 2008." Administrative Transcript 10 ("T.10"). At step two, the ALJ found that plaintiff suffered from the following severe impairment: "degenerative disc disease in the lumbar spine". T.11. At step three, the ALJ found that plaintiff "does not have an impairment or combination of impairments that meets or medically equals one of the listed impairments in 20 CFR 404, Subpart P, Appendix 1 (20 CFR 404.1520(d), 404.1525 and 404.1526)." T.24.

At step four, the ALJ found that "through the date last insured [December 31, 2008], the claimant had the residual functional capacity to perform the full range of light work as defined in 20 C.F.R. 404.1567(b)." T.12. In making this finding, the ALJ acknowledged that there were "no assessments of the claimant's physical limitations in the record concerning the period at issue, either prepared for the Administration by its medical consultants and reviewers or by persons treating the claimant." T.12-13. She considered "obtaining medical expert opinion regarding the claimant's physical residual functional capacity during the period under review" but decided against it because there were "no medical records in the evidence [regarding the time period at issue, October 3, 2008 to December 31, 2008] that could be submitted to a medical expert to form a basis for any expert opinion." T. 13. The ALJ therefore relied on plaintiff's work history:

In 1996, the claimant was permitted to return to work by an orthopedist on a full duty basis. He was using a forklift for the very heavy lifting required back then and likely was doing work requiring medium exertion. The claimant did not seek treatment for his back until 2010 complaining of back pain on one year's duration, well after the date last insured, and treatment records in evidence during the actual period under review do not contain any complaints regarding the back.... Relying on this information, the undersigned concludes that the claimant remained able to engage in work requiring at least light exertion through the date last insured.

T.12-13. The ALJ also referred to plaintiff's work activity in 2008, which "included casket making, work requiring medium ...

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