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Abbas v. Colvin

United States District Court, N.D. New York

July 6, 2015

SAAD ABBAS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

SAAD ABBAS, Plaintiff, Pro Se, Utica, NY.

ANDREA L. LECHLEITNER, ESQ., Special Assistant U.S. Attorney, U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL - REGION II, New York, NY, Counsel for Defendant.

DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this Social Security action filed by Saad Abbas ("Plaintiff") against the Acting Commissioner of Social Security ("Defendant" or "the Commissioner") pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are the parties' cross-motions for judgment on the pleadings. (Dkt. Nos. 15, 17.) For the reasons set forth below, Plaintiff's motion is denied and Defendant's motion is granted.

I. RELEVANT BACKGROUND

A. Factual Background

Plaintiff was born on July 26, 1963. He completed a high school education in Iraq as well as two years of trade school for air conditioning. Plaintiff received training in the English language from the fifth grade through high school, and learned the air conditioning trade in English. However, at this time, Plaintiff understands only a little bit of English and gets assistance from his four children when necessary. Plaintiff's employment history consists of work as a soldier in the Iraqi military and work as a piano player. Generally, Plaintiff's alleged disability consists of neck problems, knee problems, numbness in his left arm, allergies, anemia and vision problems. Plaintiff's alleged disability onset date is January 1, 2002.

B. Procedural History

On March 15, 2012, Plaintiff applied for Supplemental Security Income benefits. Plaintiff's application was initially denied, after which he timely requested a hearing before an Administrative Law Judge ("the ALJ"). On July 23, 2013, Plaintiff appeared before the ALJ, Robert Gale, but the hearing was postponed so that Plaintiff, who was appearing pro se, could obtain counsel. Plaintiff again appeared pro se before the ALJ on September 17, 2013, at which time a hearing was held. (Tr. 396-410.) On October 16, 2013, the ALJ issued a written decision finding Plaintiff not disabled under the Social Security Act. (Tr. 27-38.) On May 5, 2014, the Appeals Council granted Plaintiff's request for review and notified Plaintiff of its proposal to issue an unfavorable decision finding that Plaintiff was not disabled during the relevant period because Plaintiff was able to perform his past relevant work as he actually performed it. (Tr. 9-14.) Plaintiff did not submit additional comments or new evidence within the allotted time. On July 9, 2014, the Appeals Council issued its unfavorable decision, rendering it the final decision of the Commissioner. ( Id. ) Thereafter, Plaintiff, again appearing pro se, timely sought judicial review in this Court.

C. The ALJ's Decision

Generally, in his decision, the ALJ made the following six findings of fact and conclusions of law. (Tr. 32-37.) First, the ALJ found that Plaintiff had not engaged in substantial gainful activity since his application date. (Tr. 32.) Second, the ALJ found that Plaintiff's degenerative disc disease of the cervical and lumbar spine with sciatica is a severe impairment but that Plaintiff's multifactorial anemia, abdominal pain diagnosed as celiac adenopathy, knee pain, carpal tunnel syndrome and headaches are not severe. (Tr. 33.) Third, the ALJ found that Plaintiff's impairments do not meet or medically equal one of the listed impairments located in 20 C.F.R. Part 404, Subpart P, Appendix. 1. ( Id. ) In so doing, the ALJ considered Listing 1.04. ( Id. ) Fourth, the ALJ found that Plaintiff has the residual functional capacity ("RFC") to lift and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk four hours total in an eight-hour workday, and sit four hours total in an eight-hour workday, consistent with a full range of light work as defined in 20 C.F.R. § 416.967(b).[1] (Tr. 34-36.) Fifth, the ALJ found that Plaintiff has no past relevant work. (Tr. 37.) Sixth, and finally, the ALJ determined that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. ( Id. )

D. The Appeals Council's Decision

In its decision, the Appeals Council adopted the ALJ's statement of the law, facts and relevant issues. (Tr. 11.) Next, the Appeals Council generally accepted the ALJ's RFC but modified it to reflect that Plaintiff is able to sit for up to approximately six hours in an eight-hour workday. ( Id. ) In addition, the Appeals Council did not accept the ALJ's finding that Plaintiff has no past relevant work. (Tr. 11-12.) Rather, the Appeals Council found that Plaintiff has past relevant work as a keyboard player. ( Id. ) Finally, the Appeals Council concluded that, based on Plaintiff's ability to perform a wide range of light work, he is capable of performing his past relevant work as a keyboard player, and thus, is not disabled. (Tr. 12.)

II. THE PARTIES' BRIEFINGS ON PLAINTIFF'S MOTION

A. Plaintiff's Arguments

Construing Plaintiff's motion papers with the utmost of liberality, [2] the Court interprets Plaintiff's brief to state the following two arguments. First, Plaintiff argues that his impairments limit him to "a [fifteen] minute stand" and prevent him from lifting more than ten pounds or walking for more than ten to fifteen minutes. (Dkt. No. 15 [Pl.'s Br.].) Second, Plaintiff argues that his treating physicians have all opined that he has neck pain. ( Id. ) ...


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