United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.
by counsel, Kevin Edwin Moe (“Plaintiff”)
instituted this action pursuant to Title II of the Social
Security Act (“the Act”), seeking review of the
final decision of the Acting Commissioner of Social Security
(“the Commissioner”) denying his application for
Disability Insurance Benefits (“DIB”). The Court
has jurisdiction over the matter pursuant to 42 U.S.C.
§§ 405(g), 1383(c).
December 5, 2011, Plaintiff protectively filed an application
for DIB, alleging an onset date of November 14, 2011, and a
date last insured of December 31, 2016. The claim was denied
at the initial level on March 9, 2012, and Plaintiff
requested a hearing. Administrative Law Judge David S.
Lewandowski (“the ALJ”) conducted a hearing on
September 9, 2013, in Buffalo, New York. Plaintiff appeared
with his attorney and testified. The ALJ issued an
unfavorable decision on October 9, 2013.
(T.14-35). Plaintiff's request for review by the
Appeals Council was denied on February 20, 2015, making the
ALJ decision's the final decision of the Commissioner.
Plaintiff then timely filed this action.
and Defendant have cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. The Court will discuss the record evidence further
below, as necessary to the resolution of the parties'
contentions. For the reasons set forth herein, the
Commissioner's decision is reversed, and the matter is
remanded for further administrative proceedings.
The ALJ's Decision
followed the five-step sequential evaluation promulgated by
the Commissioner for adjudicating disability claims. At step
one, the ALJ found that Plaintiff had not engaged in
substantial gainful activity since the application date.
two, the ALJ determined that Plaintiff had the following
“severe” impairments: Human Immunodeficiency
Virus (“HIV”), peripheral neuropathy and lumbar
spine osteopenia. The ALJ found that Plaintiff's
diagnosed conditions of hepatitis type B, hepatitis type C,
and anxiety disorder with substance abuse in early remission
do not cause significant work-related limitations and
therefore are not “severe.”
three, the ALJ compared Plaintiff's In particular, the
ALJ found that Plaintiff's HIV does not meet or equal
Listing 14.08 because his HIV is “stable . . . with use
of medication and care.” Further, the ALJ found, there
is no indication that Plaintiff's peripheral neuropathy
that meets or equals Listings 11.14 or 4.11. Finally, the ALJ
found no indication that Plaintiff's lumbar spine
osteopenia meets or equals Listings 1.02, 1.03 or 14.09.
then assessed Plaintiff as having the residual functional
capacity (“RFC”) to perform light work as defined
in 20 C.F.R. § 404.1567(b), with these limitations: he
is “frequently able to climb stairs; frequently able to
engage in handling and fingering; should avoid hazards; and
requires unscheduled breaks once per week [sic] for five
four, the ALJ found that Plaintiff has past relevant work as
a post office mail handler, Dictionary of Occupational Titles
(“DOT”) No. 209.687-014, which is semi-skilled
(SVP-4) work, and which is performed at the light exertional
level. (T.59). The VE noted that Plaintiff testified that he
lifted up to 40 pounds in his job as a mail handler, which is
consistent with medium work. In addition, the VE stated that
information in the file indicated that Plaintiff lifted
between 30 and 70 pounds, which suggests Plaintiff at times
performed his job at the heavy exertional level. Therefore,
the ALJ found, in light of the RFC assessment, Plaintiff is
unable to perform his past relevant work.
five, the ALJ found that Plaintiff was 51 years-old, defined
as an individual closely approachh1g advanced age, on the
onset date; he has a high school degree and two years of
college; and he can communicate in English. Based on the
VE's testimony, the ALJ found that in light of
Plaintiff's age, education, vocational experience, and
RFC, he can perform the requirements of semi-skilled and
light exertional jobs such as file clerk, DOT No.
206.387-034, light exertion and semi-skilled (SVP-3) work;
Host, DOT No. 352.667- 010, light exe1tion and semi-skilled
(SVP-3) work; and hotel clerks, DOT No. 238.376-038, light
exertion and semi-skilled (SVP-4) work, all of which exist in
significant numbers in the national and regional economies.
The ALJ further found that Plaintiff can perform a
significant number of other jobs in the ...