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Maloney v. Berryhill

United States District Court, E.D. New York

January 12, 2018

JOSEPH MALONEY, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          Olinsky Law Group Attorneys for the Plaintiff, Howard D. Olinsky, Esq., Of Counsel

          United 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

          ARTHUR D. SPATT, UNITED STATES DISTRICT JUDGE.

         The 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 benefits.

         Presently 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 denied.

         I. BACKGROUND

         On 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 blood pressure.

         On June 25, 2013, his claim was denied, and the Plaintiff requested a hearing thereafter.

         On July 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.

         On 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 Commissioner.

         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.

         For 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.”

         II. DISCUSSION

         A. The Applicable Law

         While 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)).

         The Act 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 ...


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