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Dupre v. Colvin

United States District Court, N.D. New York

February 25, 2015

ALFRED T. DUPRE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

JAYA SHURTLIFF, ESQ., STANLEY LAW OFFICES, Syracuse, New York, Counsel for Plaintiff.

GRAHAM MORRISON, ESQ., Special Assistant United States Attorney, RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, James T. Foley U.S. Courthouse, Albany, New York. STEPHEN P. CONTE, ESQ., Chief Counsel, Region II OFFICE OF GENERAL COUNSEL, Social Security Administration, New York, New York, Counsel for Defendant.

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 District Judge, pursuant to 28 U.S.C. § 636(b) and Northern District of New York Local Rule 72.3. 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 this matter be remanded to the Commissioner for further proceedings as set forth herein.

I. BACKGROUND AND PROCEDURAL HISTORY

Plaintiff is currently 54 years old. (Administrative Transcript "T." at 28, 97.) He served in the United States Marine Corps. and earned a GED in 1980. (T. at 29, 132.) He holds a Class A commercial driver's license, and he was working part time as a supervisor for an independent commercial contractor at the time of the hearing before Administrative Law Judge ("ALJ") Barry E. Ryan. (T. at 29-31, 131.) Prior to that part time work, he worked full time in construction as a driver and as a construction worker for a construction company and a heating and cooling company. (T. at 30-34.) He is safety certified for forklifts and boom lifts. (T. at 31.) Plaintiff alleges disability due to chronic back pain, hernias, knee pain, arm pain, shortness of breath, and heart burn. (T. at 34-37, 131.)

Plaintiff applied for disability insurance benefits on March 8, 2011, alleging disability as of September 1, 2009. (T. at 97-104.) The application was initially denied on May 19, 2011. (T. at 50-54.) Plaintiff requested a hearing which was held on July 17, 2012, before ALJ Ryan, who denied the application in a decision dated August 13, 2012. (T. at 13-20, 24-41.) Plaintiff's last date insured, based upon his earnings record, is December 31, 2014. (T. at 13.) On September 4, 2013, ALJ Ryan's decision became the final decision of the Commissioner when the Appeals Council denied Plaintiff's request for review. (T. at 1-6.) Plaintiff commenced this action on November 1, 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.

§ 1382c(a)(3)(B).

Acting pursuant to its statutory rulemaking authority (42 U.S.C. § 405(a)), the Social Security Administration ("S.S.A.") promulgated regulations establishing a five-step sequential evaluation process to determine disability. 20 C.F.R. § 416.920(a)(4) (2015). "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 non-disability 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 non-disability 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 "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy. [20 C.F.R.] §§ 404.1520(f), 404.1560(c), 416.920(f), 416.9630(c).

Barnhart, 540 U.S. at 24-25 (footnotes omitted).

The plaintiff-claimant bears the burden of proof regarding the first four steps. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (quoting Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996)). If the plaintiff-claimant meets his or her burden of proof, the burden shifts to the defendant-Commissioner at the fifth step to prove that the plaintiff-claimant is capable of working. Id. (quoting Perry, 77 F.3d at 46).

B. Scope of Review

In reviewing a final decision of the Commissioner, a court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision. Featherly v. Astrue, 793 F.Supp.2d 627, 630 (W.D.N.Y. 2011) (citations omitted); Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992) (citation omitted). A reviewing court may not affirm an ALJ's decision if it reasonably doubts whether the proper legal standards were applied, even if the decision appears to be supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987).

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support the decision. 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991). "An ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports the decision." Roat v. Barnhart, 717 F.Supp.2d 241, 248 (N.D.N.Y. 2010);[1] see Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). "Substantial evidence has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion....'" Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (citations omitted). It must be more than a mere scintilla' of evidence scattered throughout the administrative record. Featherly, 793 F.Supp.2d at 630 (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from ...


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