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Moe v. Colvin

United States District Court, W.D. New York

December 14, 2017

KEVIN EDWIN MOE, Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HONORABLE MICHAEL A. TELESCA UNITED STATES DISTRICT JUDGE.

         I. Introduction

         Represented 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”)[1] 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).

         II. Procedural Status

         On 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).[2] 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.

         Plaintiff 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.

         III. The ALJ's Decision

         The ALJ 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.

         At step 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.”

         At step 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.

         The ALJ 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 minute duration.”

         At step 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.[3]

         At step 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 ...


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