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Apa v. Berryhill

United States District Court, W.D. New York

December 14, 2017

ANDREW ALAN APA Plaintiff,
v.
NANCY A. BERRYHILL, [1] Commissioner of Social Security, Defendant.

          LAW OFFICES OF LEWIS L. SCHWARTZ Attorneys for Plaintiff LEWIS SCHWARTZ, of Counsel

          JAMES P. KENNEDY ACTING UNITED STATES ATTORNEY Attorney for Defendant JOANNE JACKSON PENGELLY Assistant United States Attorney, of Counsel

          STEPHEN P. CONTE Regional Chief Counsel United States Social Security Administration

          DECISION AND ORDER

          LESLIE G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.

         JURISDICTION

         On April 14, 2016, the parties consented, pursuant to 28 U.S.C. § 636(c), to proceed before the undersigned. (Dkt. No. 16). The court has jurisdiction over this matter pursuant to 42 U.S.C. § 405(g). The matter is presently before the court on the parties' cross-motions for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, filed by Plaintiff on November 13, 2015 (Dkt. 7), and by Defendant on January 13, 2016 (Dkt 9). For the reasons discussed below, Plaintiff's motion is granted and the Commissioner's motion is denied.

         BACKGROUND and FACTS

         Plaintiff Andrew Alan Apa (“Plaintiff “), brings this action pursuant to the Social Security Act (“the Act”), seeking review of the Acting Commissioner of Social Security (“the Commissioner” or “defendant”) decision denying his application for disability benefits for Supplemental Security Income (“SSI”) benefits under Title II of the Act, and Social Security Disability Insurance (“SSDI”) benefits under Title XVI of the Act, together (“disability benefits”). Plaintiff, born on September 16, 1984 (R. 382), alleges that he became disabled on February 14, 2008, when Plaintiff was fired from work for taking too many breaks to manage Plaintiff's diabetic condition. (R. 487).

         Plaintiff received SSI as a disabled child from age eight to 18 when benefits were discontinued in accordance with the regulations. Plaintiff filed an application for SSDI and SSI benefits on August 12, 2008 (R. 382-85), that was initially denied by Defendant on October 30, 2008, and, pursuant to Plaintiff's request filed on February 5, 2009 (R. 95-97), a hearing was held before Administrative Law Judge Robert Harvey (“Harvey” or “the ALJ”), on September 29, 2010, in Buffalo, New York. (R.75-105). Plaintiff, represented by Lewis Schwartz, Esq. (“Schwartz”), appeared and testified at the hearing. The ALJ's decision denying Plaintiff's claim was rendered on October 19, 2010. (R. 146-61). Plaintiff requested review by the Appeals Council, and on November 30, 2011, the Appeals Council issued a remand order directing the ALJ to evaluate the severity of Plaintiff's anxiety and depression in accordance with the special technique under 20 C.F.R. ' 404.1520a, re-evaluate Plaintiff's residual functional capacity, and if warranted, obtain testimony from a vocational expert. (R. 163-64). Upon a second hearing on May 23, 2012, a new ALJ assigned to the case, and Timothy McGuan (“McGuan or “the ALJ”), issued a finding that Plaintiff was not disabled (R. 173-200). Plaintiff filed a request for review with the Appeals Council on July 31, 2012 (R. 304-07), and on August 27, 2013, the Appeals Council vacated the ALJ's decision, and remanded the claim to the ALJ with specific instructions to obtain supplemental testimony from a VE, to whom hypothetical questions were to be posed clarifying the effect of Plaintiff's assessed limitations on the vocational base. (R. 203). On December 12, 2013, a third hearing was held on Buffalo, New York, where Plaintiff and his father, David Apa (“David Apa”) testified. (R. 124-32). Vocational Expert Jay Steinbrenner also appeared and testified at the hearing (R. 136-41). On May 20, 2014, the ALJ issued a decision that Plaintiff was not disabled. (R. 48-74). The ALJ's decision became Defendant's final decision when the Appeals Council denied Plaintiff's request for review on February 27, 2015.[2] (R. 1-4). This action followed on May 12, 2015, with Plaintiff alleging that the ALJ erred by failing to find him disabled. (Dkt. No. 1).

         On, November 13, 2015, Plaintiff filed a motion for judgment on the pleadings (“Plaintiff's motion”), accompanied by a memorandum of law (Dkt. No. 7) (“Plaintiff's Memorandum”). Defendant filed, on January 13, 2016, Defendant's motion for judgment on the pleadings (“Defendant's motion”), accompanied by a memorandum of law (Dkt. No. 19) (“Defendant's Memorandum”). Plaintiff filed a reply to Defendant's motion on the pleadings on February 25, 2016 (“Plaintiff's Reply Memorandum”) (Dkt. No. 14). Oral argument was deemed unnecessary.

         DISCUSSION

         A district court may set aside the Commissioner's determination that a claimant is not disabled if the factual findings are not supported by substantial evidence, or the decision is based on legal error. See 42 U.S.C. 405(g); Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence” means ‘such relevant evidence as a reasonable mind might accept as adequate.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000).

         A. Standard and Scope of Judicial Review

         The standard of review for courts reviewing administrative findings regarding disability benefits, 42 U.S.C. §§ 401-34 and 1381-85, is whether the administrative law judge's findings are supported by substantial evidence. Richardson v. Perales, 402 U.S. 389, 401 (1971). Substantial evidence requires enough evidence that a reasonable person would "accept as adequate to support a conclusion." Consolidated Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). When evaluating a claim, the Commissioner must consider "objective medical facts, diagnoses or medical opinions based on these facts, subjective evidence of pain or disability (testified to by the claimant and others), and . . . educational background, age and work experience." Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981)). If the opinion of the treating physician is supported by medically acceptable techniques and results from frequent examinations, and the opinion supports the administrative record, the treating physician's opinion will be given controlling weight. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. § 404.1527(d); 20 C.F.R. § 416.927(d). The Commissioner's final determination will be affirmed, absent legal error, if it ...


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