United States District Court, E.D. New York
Olinsky Law Group Attorneys for the Plaintiff, Howard D.
Olinsky, Esq., Of Counsel
States Attorney's Office for the Eastern District of New
York Attorneys for the Defendant, Matthew Silverman,
Assistant United States Attorney
MEMORANDUM OF DECISION & ORDER
D. SPATT, UNITED STATES DISTRICT JUDGE.
Plaintiff Joseph Maloney (the “Plaintiff”)
commenced this this civil action pursuant to the Social
Security Act, 42 U.S.C. § 405 et seq. (the
“Act”), challenging a final determination by the
Defendant, Nancy A. Berryhill (the “Defendant” or
the “Commissioner”), the acting commissioner of
the Social Security Administration (the
“Administration”) at the time of filing, that she
is ineligible to receive Social Security disability insurance
before the Court are the parties' cross motions, pursuant
to Federal Rule of Civil Procedure (“Fed. R. Civ.
P.” or “Rule”) 12(c) for a judgment on the
pleadings. For the reasons that follow, the Plaintiff's
motion is granted, and the Commissioner's motion is
April 8, 2013, the Plaintiff applied for Title II Social
Security disability insurance benefits, alleging that he had
been disabled since November 1, 2011 due to anxiety, bipolar
depression, sleep apnea, a knee impairment, gout, and high
25, 2013, his claim was denied, and the Plaintiff requested a
23, 2014, Administrative Law Judge Brian J. Crawley (the
“ALJ”) conducted a hearing, during which the
Plaintiff was represented by counsel. The ALJ issued a
written opinion on July 23, 2014 denying the Plaintiff's
claim for benefits.
October 7, 2014, the Plaintiff requested that the Appeals
Council review the ALJ's decision. In support of his
petition for review, he supplied further evidence to the
Appeals Council. The Appeals Council denied the
Plaintiff's request for review on May 9, 2016, at which
point the ALJ's decision became the final decision of the
Plaintiff commenced this action on July 13, 2016, and filed
the instant motion for a judgment on the pleadings on
February 9, 2017. The Plaintiff contends that the Appeals
Council erred in failing to consider new and material
evidence supporting remand; and that the ALJ erred in failing
to account for the Plaintiff's obesity and gout and his
decision is therefore not supported by substantial evidence.
purposes of these motions, familiarity with the underlying
administrative record is presumed. The Court's discussion
of the evidence will be limited to the specific challenges
presently raised by the Plaintiff. In this regard, references
to the record are denoted as “R.”
The Applicable Law
the Act was amended effective March 27, 2017, the Court
reviews the ALJ's decision under the earlier regulations
because the Plaintiff's application was filed before the
new regulations went into effect. See Lowry v.
Astrue, 474 F. App'x 801, 805 n.2 (2d Cir. 2012)
(applying and referencing version of regulation in effect
when ALJ adjudicated plaintiff's claim); see also
Michael Barca, Plaintiff, v. Comm'r of Soc. Sec.,
Defendant., No. 2:16-CV-187, 2017 WL 3396416, at *8 (D.
Vt. Aug. 8, 2017) (applying the regulations in effect when
the plaintiff filed his application); Alvarez v.
Comm'r of Soc. Sec., No. 14CV3542(MKB), 2015 WL
5657389, at *11 n.26 (E.D.N.Y. Sept. 23, 2015) (“[T]he
Court considers the ALJ's decision in light of the
regulation in effect at the time of the decision.”
(citing Lowry, 474 F. App'x at 805 n.2)).
defines the term “disability” to mean an
“inability to engage in any substantial gainful
activity by reason of any medically determinable physical or
mental impairment . . . which has lasted or can be expected
to last for a continuous period of not less than 12
months.” Burgess v. Astrue, 537 F.3d 117, 119
(2d Cir. 2008) (quoting 42 U.S.C. § 423(d)(1)(A))
(quotation marks omitted). In addition, “[t]he
impairment must be of ‘such severity that [the
claimant] is not only unable to do his previous work but
cannot, considering his age, education, and work experience,
engage in any other kind ...