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Avera v. Colvin

United States District Court, E.D. New York

February 3, 2017


          For the Plaintiff CHRISTOPHER J. BOWES Center for Disability Advocacy Rights, Inc.

          For the Defendant ROBERT L. CAPERS United States Attorney Eastern District of New York, By: RUKHSANAH L. SINGH Assistant United States Attorney.


          FREDERIC BLOCK Senior United States District Judge.

         Garrick Avera (“Avera, ” “plaintiff, ” or “claimant”) seeks review of the final decision of the Commissioner of Social Security (“Commissioner”) denying his application for disability and disability insurance benefits under the Social Security Act (“SSA”).[1] Both parties move for judgment on the pleadings. For the reason stated below, the case is remanded to the Commissioner for further proceedings consistent with this Memorandum and Order.


         A forty-seven year-old resident of Brooklyn, New York, Avera never graduated high school but obtained a general educational degree in 1992. From 1996 through 2012, he labored as a technician and mechanic for various oil and plumbing companies, including United Metro Energy Corporation, Kraus Plumbing and Heating, and Pronto Plumbing and Heating. During a normal eight-hour working day, Avera handled large objects for eight hours, walked and stood for three, stooped and reached for four, crouched for two, and kneeled and climbed for one. In 2012, he earned roughly fourteen dollars per hour.

         On July 7, 2012, Avera was found lying on the street with gunshot wounds to his right hip and right ankle. Avera was subsequently hospitalized at Brookdale Hospital (“Hospital”). Over the next twelve days, Avera underwent three surgeries to stabilize his fractured femur with a metal rod and surgical screws. Although these operations appeared to succeed, Avera nevertheless stopped engaging in substantial gainful activity as a result of his injuries.

         Avera filed an application for disability and disability insurance benefits on July 24, 2012, and listed his onset date as July 7, 2012. Avera's claim was initially denied on November 2, 2012. At Avera's request, a hearing before an Administrative Law Judge (“ALJ”) was held on October 3, 2013.

         On April 3, 2014, the ALJ held that Avera was not disabled within the meaning of the SSA. Applying the SSA's five-step sequential evaluation process, [2] the ALJ determined that (1) Avera had not engaged in substantial gainful activity since July 7, 2012, the alleged onset date, and (2) the subtrochanteric fracture of his right hip constituted a severe impairment. Nonetheless, the ALJ concluded that this impairment did not meet or medically equal the SSA's requisite level of severity, as set forth in 20 C.F.R. § 404, Subpart P, Appendix 1, so as to trigger Avera's automatic classification as disabled.

         The ALJ then determined that Avera had the residual functional capacity (“RFC”) to per f or m t he f u l l r a n g e o f sedent ary work, as defined in 20 C.F.R. § 404.1567(a). Namely, the ALJ found that Avera could “lift/carry 10 pounds occasionally, 5 pounds frequently, stand/walk 2 hours and sit 6 hours out of an 8-hour day with appropriate breaks.” AR 21. The ALJ also determined that Avera “can occasionally squat, kneel and climb stairs.” Id. In reaching this conclusion, the ALJ “considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence, ” as well as other “opinion evidence.” Id.

         The ALJ thereupon applied this RFC to the remaining step. He there determined that Avera, though unable to perform any past relevant work, could perform other jobs identified in the Medical Vocational Guidelines (“Grid”), 20 C.F.R. § 404, Subpart P, Appendix 2. In particular, in light of Avera's age, education, past relevant work experience, and RFC, the ALJ concluded that plaintiff possessed skills transferable to other occupations with jobs existing in significant numbers in the national economy. The ALJ, however, did not give one example.

         The Appeals Council denied Avera's request for review on August 18, 2015, and the ALJ's decision thereby became the Commissioner's final one. Avera has sought timely review. He argues that (1) substantial evidence does not support the ALJ's findings as to the work Avera could perform, which specifically contradicted the opinion of Avera's treating physician, Doctor Rana Suleman (“Suleman”); (2) the ALJ should have obtained the testimony of a vocational expert rather than relying on the Grid; (3) the ALJ failed to secure Avera's complete records from the Hospital and therefore did not properly develop the record; and (4) the Appeals Council improperly discounted post-hearing evidence gathered and tendered by Avera's counsel.


         “In reviewing a final decision of the Commissioner, a district court must determine whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also 42 U.S.C. § 405(g) (“ The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”). “Substantial evidence . . . 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), cited in, e.g., Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013). If contradictions appear in the record and an ALJ fails to reasonably explain why he or she opted for one interpretation over another, the Commissioner's findings must fall. See, e.g., Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (“Failure to provide "good reasons" for not crediting the opinion of a claimant's treating physician is a ground for remand.”); Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998) (“‘[T]he ALJ cannot arbitrarily substitute his [or her] own judgment for competent medical opinion . . . .'”). ...

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