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Prestia v. Colvin

United States District Court, N.D. New York

March 5, 2015


PETER W. ANTONOWICZ, ESQ., OFFICE OF PETER W. ANTONOWICZ, Rome, New York, Counsel for Plaintiff.

DAVID B. MYERS, ESQ., Special Assistant United States Attorney, HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Albany, New York, Counsel for Defendant.

STEPHEN P. CONTE, ESQ., Chief Counsel, Region II, OFFICE OF GENERAL COUNSEL, Social Security Administration, New York, New York.



This matter was referred to the undersigned for report and recommendation by the Honorable Mae A. D'Agostino, 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 the Commissioner's decision be affirmed.


Plaintiff is currently 62 years old. (Administrative Transcript at 30, 35.[1]) He completed high school and has an Associate's Degree in Civil Engineering. (T. at 30, 35.) He also has an additional year of college, and has completed computer courses. (T. at 30-31, 35.) His work experience includes the restaurant business where he worked in the kitchen as a chef, and owned his own restaurant. (T. at 35-38.) He has also worked as a census worker for the U.S. Census Bureau and briefly as a bank security guard. (T. at 50-52.) Plaintiff alleges disability due to chronic back pain, right shoulder pain, heart problems, and left side chest discomfort. (T. at 39-40, 153, 181.)

Plaintiff applied for disability insurance benefits on January 3, 2011, alleging disability as of December 29, 2010. (T. at 12, 149.) The application was initially denied on August 1, 2011. (T. at 56.) Plaintiff requested a hearing which was held on September 10, 2012, before Administrative Law Judge ("ALJ") Elizabeth W. Koennecke, who denied the application in a decision dated October 12, 2012. (T. at 12-20, 26-55.) Plaintiff's last date insured, based upon his earnings record, is December 31, 2015. (T. at 13, 149.) On November 13, 2013, ALJ Koennecke'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 December 18, 2013. (Dkt. No. 1.)


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) (2013). Under that five-step sequential evaluation process, the decision-maker determines:

(1) whether the claimant is currently engaged in substantial gainful activity; (2) whether the claimant has a severe impairment or combination of impairments; (3) whether the impairment meets or equals the severity of the specified impairments in the Listing of Impairments; (4) based on a "residual functional capacity" assessment, whether the claimant can perform any of his or her past relevant work despite the impairment; and (5) whether there are significant numbers of jobs in the national ...

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