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Warcholak v. Colvin

United States District Court, W.D. New York

February 14, 2017

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


          HONORABLE MICHAEL A. TELESCA United States District Judge.


         Robert Joseph Warchlok (“Plaintiff”), represented by counsel, brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“Defendant” or “the Commissioner”), denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”).


         On April 20, 2012, Plaintiff filed concurrent applications for DIB and SSI, alleging disability beginning December 1, 2003, later amended to June 10, 2010. These applications were denied on initial review and upon reconsideration. Plaintiff requested a hearing on August 2, 2012, and, on October 28, 2013, appeared with counsel before administrative law judge Stanley A. Moskal, Jr. (“the ALJ”) in Buffalo, New York. Plaintiff testified at the hearing, as did Linda N. At the hearing, Plaintiff he withdrew his DIB application and amended his SSI onset date to June 10, 2010. (T.29).[1]

         The ALJ considered the applications de novo and issued an unfavorable decision on April 4, 2014. (T.13-22). Plaintiff appealed the decision to the Appeals Council, which granted review on December 18, 2015. The Appeals Council subsequently issued a new decision (T.4-7). The Appeals Council rejected the ALJ's step four finding, but accepted the ALJ's alternative step five finding that there was other work Plaintiff could perform. Accordingly, the Appeals Council found Plaintiff not disabled during the period from April 20, 2012, the date of his SSI application, through April 4, 2014, [2] the date of the ALJ's decision.[3] The Appeals Council's decision subsequently became the decision of the Commissioner, and Plaintiff timely commenced this action.

         The parties have cross-moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The Court adopts and incorporates by reference herein the undisputed and comprehensive factual summaries contained in the parties' briefs. The record will be discussed in more detail below as necessary to the resolution of this appeal.

         For the reasons that follow, the Commissioner's decision is reversed, and the matter is remanded for further administrative proceedings.


         As noted above, the Appeals Council granted review of the ALJ's decision and ultimately issued the final decision of the Commissioner, in which it adopted all of the ALJ's findings except for the ALJ's step four finding that Plaintiff had past relevant work as a waiter, and still could perform that work. (T.4-7). References to the Appeals Council's decision necessarily incorporate the ALJ's decision except for the step four finding.

         At step one of the sequential evaluation, the Appeals Council found that Plaintiff had not engaged in substantial gainful activity since June 10, 2010, Plaintiff's amended disability onset date. At step two, the Appeals Council found that Plaintiff had the following “severe” impairment: status-post ankle fracture and fusion. At step three, the Appeals Council determined that Plaintiff's impairments, alone or in combination, did not meet or equal a listed impairment. Next, the Appeals Council assessed Plaintiff's subjective complaints and agreed with the ALJ that Plaintiff retained the residual functional capacity (“RFC”) to perform light work as defined in 20 C.F.R. § 416.967(b),

except [he] can lift and carry twenty pounds occasionally and ten pounds frequently with normal breaks. [He] can stand or walk up to six hours in an eight-hour workday, and he can sit up to six hours in an eight hour workday. [He] can push or pull ten pounds frequently and twenty pounds occasionally with the upper extremities, but cannot push or pull with the lower left extremity. [He] can perform postural movements occasionally, but he cannot climb ladders, ropes, or scaffolds. [He] ha[s] no manipulative, visual, or communicative limitations, but he should have no exposure to hazards, dangerous moving machinery and unprotected heights.


         At step four, the ALJ had found Plaintiff was able to perform his past relevant work as a waiter. (T.21). The ALJ also continued to step five and, relying on the VE's testimony, found there were other jobs that existed in significant numbers in the national economy that Plaintiff could perform. (T.21). Specifically, the ALJ found ...

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