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Gregorka v. Commissioner of Social Security

United States District Court, N.D. New York

May 28, 2015

LEO GREGORKA and EVE GREGORKA, Plaintiffs,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

LEO GREGORKA and EVE GREGORKA, Plaintiffs pro se, Little Falls, NY.

HON. RICHARD S. HARTUNIAN, United States Attorney for the Northern District of New York, Counsel for Defendant, James T. Foley U.S. Courthouse Albany, New York.

EMILY M. FISHMAN, ESQ., OFFICE OF GENERAL COUNSEL Social Security Administration, New York, New York.

REPORT AND RECOMMENDATION

THÉRÈSE WILEY DANCKS, Magistrate Judge.

This matter was referred to the undersigned for report and recommendation by the Honorable Glenn T. Suddaby, 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. Oral argument was not heard. For the reasons discussed below, it is recommended that the Court affirm the Commissioner's finding that Plaintiffs are not entitled to supplemental security income ("SSI") benefits but remand the disability insurance benefits ("DIB") claim to the Commissioner for further proceedings.

I. BACKGROUND AND PROCEDURAL HISTORY

On June 9, 2011, Thomas Leo Gregorka ("Mr. Gregorka") submitted applications for SSI and DIB. (Dkt. No. 15-2 at 21.) The applications were denied on December 13, 2011. Id. On January 19, 2012, Mr. Gregorka filed a request for a hearing before an Administrative Law Judge ("ALJ"). Id. Mr. Gregorka died on April 1, 2012. Id. Mr. Gregorka was fifty-eight years old when he died. Id. at 30.

Plaintiffs Leo and Eve Gregorka, the parents of Mr. Gregorka, filed a substitution of party to proceed with the hearing requested by their son. (Dkt. No. 15-2 at 21.) They did not, however, wish to appear at the hearing in person. Id. Thus, the ALJ based his decision on the record alone. Id.

On June 19, 2012, the ALJ issued a decision finding that Mr. Gregorka was not disabled. (Dkt. No. 15-2 at 21-31.) Plaintiffs filed a request for review by the Appeals Council (Dkt. No. 15-2 at 16) and submitted additional evidence (Dkt. No. 15-2 at 5). On September 5, 2013, the Appeals Council issued separate decisions on Mr. Gregorka's SSI claim and his DIB claim. (Dkt. No. 15-2 at 1-4, 8.) The Appeals Council dismissed the request for review of the SSI claim, finding that Plaintiffs were not proper parties pursuant to Social Security regulations. (Dkt. No. 15-2 at 8.) The Appeals Council denied the request for review of the DIB claim, finding that there was no basis for changing the ALJ's decision. (Dkt. No. 15-2 at 2, 3.)

Plaintiffs commenced this action on November 12, 2013. (Dkt. No. 1.)

II. APPLICABLE LAW

A. Standard for Benefits

To be considered disabled, a claimant 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 claimant'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 ...

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