United States District Court, W.D. New York
OFFICES OF LEWIS L. SCHWARTZ Attorneys for Plaintiff LEWIS
SCHWARTZ, of Counsel
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
DECISION AND ORDER
G. FOSCHIO, UNITED STATES MAGISTRATE JUDGE.
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.
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).
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. (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).
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.
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).
Standard and Scope of Judicial Review
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 ...