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Sova v. Colvin

United States District Court, N.D. New York

August 29, 2014

DONALD SOVA, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

VICTORIA M. ESPOSITO, ESQ., LEGAL AID SOCIETY OF NORTHEASTERN, NEW YORK, INC.-CANTON Canton, NY, Counsel for Plaintiff.

VERNON NORWOOD, ESQ., OFFICE OF REGIONAL GENERAL COUNSEL, Social Security Administration New York, NY.

REPORT AND RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

This matter was referred to the undersigned for report and recommendation by the Honorable Thomas J. McAvoy, United States Senior District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3(d). This case has proceeded in accordance with General Order 18 of this Court which sets forth the procedures to be followed when appealing a denial of Social Security benefits. Both parties have filed briefs. Oral argument was not heard. For the reasons discussed below, it is recommended that the decision of the Commissioner be affirmed.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff was forty-six years old at the time of the hearing. (T. at 35.) He has an eighth grade education, and at least some of his classes were special education. (T. at 36.) For his entire working life, Plaintiff has performed manual labor in either farming or construction. (T. at 37-39.) Plaintiff alleges disability due to knee injury, borderline intellectual functioning, back problems, and shoulder problems. (T. at 16-17.)

Plaintiff applied for supplemental security income ("SSI") on June 21, 2010. (T. at 14.) The application was denied on October 4, 2010. (T. at 76.) Plaintiff requested a hearing before an Administrative Law Judge ("ALJ"). (T. at 84.) The hearing was held on August 11, 2011. (T. at 30.) On October 20, 2011, the ALJ issued a decision finding that Plaintiff was not disabled. (T. at 24-25.) The ALJ's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review on March 25, 2013. (T. at 1.) Plaintiff commenced this action on May 16, 2013. (Dkt. No. 1.)

II. APPLICABLE LAW

A. Standard for Benefits

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) (2006). 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.

Id. at § 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a) (2006)), the Social Security Administration ("SSA") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920 (2012). "If at any step a finding of disability or non-disability can be made, the SSA will not review the claim further." Barnhart v. Thomas, 540 U.S. 20, 24 (2003).

At the first step, the agency will find nondisability unless the claimant shows that he is not working at a "substantial gainful activity." [20 C.F.R.] §§ 404.1520(b), 416.920(b). At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment, " defined as "any impairment or combination of impairments which significantly limits the claimant's physical or mental ability to do basic work activities." [20 C.F.R.] §§ 404.1520(c), 416.920(c). At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. [20 C.F.R.] §§ 404.1520(d), 416.920(d). If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called ...

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