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Besser v. Berryhill

United States District Court, N.D. New York

June 30, 2017

FRANK BESSER, SR., Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, [2] Defendant.

          OLINSKY LAW GROUP Attorney for Plaintiff HOWARD D. OLINSKY, ESQ.

          SOCIAL SECURITY ADMINISTRATION Attorney for Defendant LAUREN E. MYERS, ESQ.

          MEMORANDUM-DECISION AND ORDER

          DANIEL J. STEWART United States Magistrate Judge

         In this action, Plaintiff Frank Besser, Sr., moves, pursuant to 42 U.S.C. § 405(g), for review of a decision by the Acting Commissioner of Social Security denying his application for Disability Insurance Benefits (“DIB”) and Period of Disability (“POD”).[3] Based upon the following discussion, the Acting Commissioner's decision denying Social Security benefits is affirmed.

         I. BACKGROUND

         Besser, born on April 23, 1958, filed an application for DIB and POD on June 14, 2013, claiming an inability to work as of February 9, 2013, due to a variety of ailments, including chronic obstructive pulmonary disease (“COPD”), obstructive sleep apnea, knee arthritis, pinched nerve in the neck, and herniated disc. Dkt. No. 8, Admin. Tr. [hereinafter “Tr.”] at pp. 13, 52-53, 61, 63, 125-28, 138, & 141. Besser completed ninth grade and has past relevant work as a security guard. Id. at pp. 142 & 143.

         Besser's disability application was denied on initial review. Id. at pp. 61 & 64-75. On August 21, 2014, a Hearing was held before Administrative Law Judge (“ALJ”) Carl E. Stephan; Besser, who was accompanied by an attorney, was the only witness to testify during the Hearing. Id. at pp. 26-51. On August 30, 2014, ALJ Stephan sent a vocational interrogatory to Peter Manzi, a Vocational Expert (“VE”). Id. at pp. 190-95. VE Manzi responded to the interrogatory on September 15, 2014. Id. at pp. 196-99. Plaintiff's representative also sent a vocational interrogatory to the VE, id. at pp. 203-05, and VE Manzi responded to that interrogatory on October 29, 2014, id. at pp. 212-14.

         On February 6, 2015, ALJ Stephan issued an unfavorable decision finding that Besser was not disabled. Id. at pp. 10-25. On May 13, 2016, the Appeals Council concluded there was no basis to review the ALJ's decision, thus rendering the ALJ's decision the final determination of the Acting Commissioner. Id. at pp. 1-4. Exhausting all of his options for review through the Social Security Administration's tribunals, Plaintiff now brings this appeal.

         II. DISCUSSION

         A. Standard of Review

         Under 42 U.S.C. § 405(g), the proper standard of review for this Court is not to employ a de novo review, but rather to discern whether substantial evidence supports the Commissioner's findings and that the correct legal standards have been applied. See Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Urtz v. Callahan, 965 F.Supp. 324, 325-26 (N.D.N.Y. 1997) (citing, inter alia, Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Succinctly defined, substantial evidence is “more than a mere scintilla” of evidence scattered throughout the administrative record; rather, it is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consol. Edison Co. of New York v. N.L.R.B., 305 U.S. 197, 229 (1938); see also Williams ex. rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). “To determine on appeal whether an [Administrative Law Judge's] findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight.” Williams ex. rel. Williams v. Bowen, 859 F.2d at 258.

         The ALJ must set forth the crucial factors supporting the decision with sufficient specificity. Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984). Where the ALJ's findings are supported by substantial evidence, the court may not interject its interpretation of the administrative record. Williams ex rel. Williams v. Bowen, 859 F.2d at 258; 42 U.S.C. § 405(g). However, where the weight of the evidence does not meet the requirement for substantial evidence or a reasonable basis for doubt exists as to whether correct legal principles were applied, the ALJ's decision may not be affirmed. Johnson v. Bowen, 817 F.2d at 986.

         B. Determination of Disability

         To be considered disabled within the meaning of the Social Security Act, a plaintiff must establish an “inability 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 12 months.” 42 U.S.C. § 423(d)(1)(A). Furthermore, the claimant's physical or mental impairments must be of such severity as to prevent engagement in any kind of substantial gainful work which exists in the national economy. Id. at § 423(d)(2)(A).

         In determining whether a claimant is disabled, the Commissioner follows a five-step analysis set forth in the Social Security Administration Regulations. 20 C.F.R. § 404.1520. At Step One, the Commissioner “considers whether the claimant is currently engaged in gainful activity.” Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982). If the claimant is engaged in substantial gainful activity, he or she is not disabled and the inquiry ends. 20 C.F.R. § 404.1520(b). If the claimant is not engaged in substantial gainful activity, the Commissioner proceeds to Step Two and assesses whether the claimant suffers from a severe impairment that significantly limits his or her physical or mental ability to do basic work activities. Id. at § 404.1520(c). If the claimant suffers from a severe impairment, the Commissioner considers at Step Three whether such impairment(s) meets or equals an impairment listed in Appendix 1, in Part 404, Subpart P of the Regulations. Id. at § 404.1520(d). The Commissioner makes this assessment without considering vocational factors such as age, education, and work experience. Berry v. Schweiker, 675 F.2d at 467. Where the claimant has such an impairment the inquiry ceases as he or she is presumed to be disabled and unable to perform substantial gainful activity. Id. If the claimant's impairment(s) does not meet or equal the listed impairments, the Commissioner proceeds to Step Four and considers whether the claimant has the residual functional capacity (“RFC”)[4] to perform his or her past relevant work despite the existence of severe impairments. 20 C.F.R. § 404.1520(e). If the claimant cannot perform his or her past work, then at Step Five, the Commissioner considers whether the claimant can perform any other work available in the national economy. Berry v. Schweiker, 675 F.2d at 467; 20 C.F.R. § 404.1520(f).

         Initially, the burden of proof lies with the claimant to show that his or her impairment(s) prevents a return to previous employment (Steps One through Four). Berry v. Schweiker, 675 F.2d at 467. If the claimant meets that burden, the burden then shifts to the Commissioner at Step Five to establish, with specific reference to medical evidence, that the claimant's physical and/or mental impairment(s) are not of such severity as to prevent him or her from performing work that is available within the national economy. Id.; 42 U.S.C. § 423(d)(2)(A); see also White v. Sec'y of Health and Human Servs., 910 F.2d 64, 65 (2d Cir. 1990). In making this showing at Step Five, the claimant's RFC must be considered along with other vocational factors such as age, education, past work experience, and transferability of skills. 20 C.F.R. § 404.1520(f); see also New York v. Sullivan, 906 F.2d 910, 913 (2d Cir. 1990).

         C. ALJ Stephan's Findings

         As noted above, Besser appeared and testified at the ALJ Hearing. Tr. at pp. 26-51. In addition to such testimony, the ALJ had Besser's medical records consisting of treatment reports and opinions from ...


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