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Pines v. Commissioner of Social Security

United States District Court, S.D. New York

March 2, 2015

MARVIN PINES, JR., Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

REPORT AND RECOMMENDATION TO THE HONORABLE ALISON J. NATHAN

FRANK MAAS, Magistrate Judge.

Plaintiff Marvin Pines, Jr. ("Pines") brings this action pursuant to Section 205(g) of the Social Security Act ("Act"), as amended, 42 U.S.C. § 405(g), seeking review of a final decision of the Commissioner of Social Security ("Commissioner") denying his application for Supplemental Security Income benefits ("SSI").[1]The parties have filed cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. For the reasons set forth below, Pines' motion should be granted in part, the Commissioner's cross-motion should be denied, and this case should be remanded pursuant to sentence four of Section 205(g) of the Act for further proceedings consistent with this Report and Recommendation.

I. Background

A detailed recitation of the non-medical and medical evidence may be found in the parties' motion papers. (See ECF No. 11 ("Pl.'s Mem); ECF No. 21 ("Def.'s Mem.")). In brief, that evidence indicates that Pines was born in 1957, making him fiftyfour years old at the time of the hearing, and has a GED. (R. 48, 105, 120, 125).[2] He was diagnosed with HIV in 2002 and with hypertension in 2005. (Id. at 261). Pines began using cocaine and heroin at age twenty-five and continued to do so until in or around 2010. (Id. at 41-42, 262, 328). At age nineteen, Pines was imprisoned for robbery, and he has since been arrested some fifty times. (Id. at 46, 267). In or around December 2007, while he was incarcerated, Pines had an accident that resulted in a fractured left thumb and nerve damage, which has limited the use of his left nondominant hand. (Id. at 42, 134-36, 145, 148-49).

Pines claims that he is unable to work because he hears voices, suffers from anxiety, bipolar disorder, and post-traumatic stress disorder ("PTSD"), is HIV positive, and has a metacarpal fracture of his left hand with nerve damage. (Id. at 39-40, 124, 162, 179).

On February 2, 2011, Pines filed an application for SSI, alleging that he became disabled on January 24, 2011. (Id. at 105-113). After his application was denied initially, Pines requested a hearing before an Administrative Law Judge ("ALJ").[3] (See id. at 11, 54-57, 58-59). On February 7, 2012, Pines and his attorney appeared before ALJ Curtis Axelsen for that hearing. (Id. at 35-51). On March 21, 2012, the ALJ found that Pines was not disabled. (Id. at 8-19). The ALJ's decision became the final decision of the Commissioner on August 15, 2013, when the Appeals Council denied Pines' request for review. (Id. at 1-7, 33). Pines then timely commenced this action on September 26, 2013. (ECF No. 1).

II. Standard of Review

Under Rule 12(c), judgment on the pleadings is appropriate when the material facts are undisputed and a party is entitled to judgment as a matter of law based on the contents of the pleadings. See, e.g., Sellers v. M.C. Floor Crafters, Inc., 842 F.2d 639, 642 (2d Cir. 1988); Carballo ex rel. Cortes v. Apfel, 34 F.Supp.2d 208, 213-14 (S.D.N.Y. 1999).

The Act, in turn, provides that "[t]he findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive." 42 U.S.C. § 405(g); see Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002); Perez v. Chater, 77 F.3d 41, 46 (2d Cir. 1996). The term "substantial" does not require that the evidence be overwhelming, but it must be "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).

A district court is not permitted to review the Commissioner's decision de novo. Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (citing Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998)); Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991). Rather, the court's inquiry is limited to ensuring that the Commissioner applied the correct legal standard and that his decision is supported by substantial evidence. See Hickson v. Astrue, No. 09 Civ. 2049 (DLI) (JMA), 2011 WL 1099484, at *2 (E.D.N.Y. Mar. 22, 2011). When the Commissioner's determination is supported by substantial evidence, the decision must be upheld, "even if there also is substantial evidence for the plaintiff's position." Morillo v. Apfel, 150 F.Supp.2d 540, 545 (S.D.N.Y. 2001).

III. Disability Determination

The term "disability" is defined in the Act 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). "[W]hether a claimant is disabled and cannot work" is a matter "reserved for the Commissioner." Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citing 20 C.F.R. § 404.1527(e)(1)). In determining whether a claimant is disabled, the Commissioner is required to apply the five-step sequential process set forth in 20 C.F.R. §§ 404.1520 and 416.920.

The Second Circuit has described this familiar process 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 disabled without considering vocational factors such as age, education, and work experience.... 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.

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (quoting Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982)); accord Burgess v. Astrue, 537 F.3d 117, 120 (2d Cir. 2008). The claimant bears the burden of proof with respect to the first four steps. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the claimant sustains their burden at each of these steps, then the burden shifts to the Commissioner at step five. Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009).

In assessing whether a claimant has a disability, the factors to be considered include: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or other[s]; and (4) the claimant's educational background, age, and work experience." Rivera v. Harris, 623 F.2d 212, 216 (2d Cir. 1980). When reviewing the medical evidence, the ALJ has the authority to select among conflicting opinions. Veino, 312 F.3d at 588; see also Richardson, 402 U.S. at 399. Thus, if there are genuine conflicts within the evidence, their ...


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