United States District Court, N.D. New York
ANTONIO T. PERALTA, Plaintiff,
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.
HOWARD D. OLINSKY, ESQ., OLINSKY LAW GROUP, Counsel for Plaintiff.
HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, PETER JEWETT, ESQ., Special Assistant United States Attorney, OFFICE OF GENERAL COUNSEL, Social Security Administration, STEPHEN P. CONTE, ESQ., Chief Counsel, Region II, 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 Lawrence E. Kahn, Senior 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.
I. BACKGROUND AND PROCEDURAL HISTORY
The Plaintiff was born on August 2, 1949. (Administrative Transcript at 41, 263, 299.) Plaintiff completed the 11th grade and is able to read and write "a little bit" and perform simple math. Id. He is able to operate a car, and has worked as a machine operator, a hazardous materials handler, a roofer, a cook, a baker's assistant, an auto detailer, and a farm worker. (T. at 50-57.) Plaintiff alleges disability due to a back impairment, diabetes, hypertension, gout, liver problems, and arthritis in the back, hip and shoulder. (T. at 62-66, 303.)
Plaintiff applied for disability insurance benefits and social security income on September 9, 2010, alleging disability as of November 1, 2009. (T. at 299-300.) The applications were initially denied on December 21, 2010. (T. at 100-01.) Plaintiff requested a hearing which was held on July 27, 2012, before Administrative Law Judge ("ALJ") Jennifer Gale Smith, who denied the application in a decision dated September 13, 2012. (T. at 24-31, 37-99.) On December 20, 2013, ALJ Smith'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 January 22, 2014. (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.
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 economy that the claimant can perform given the claimant's residual functional capacity, age, education, and work experience.
McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014.) "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).
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 ...