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Gonzalez v. Colvin

United States District Court, W.D. New York

February 23, 2018

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.




         Luis Gonzalez (“Plaintiff”), represented by counsel, brings this action pursuant to Titles II and XVI of the Social Security Act (“the Act”), seeking review of the final decision of the Acting Commissioner of Social Security (“Defendant” or “the Commissioner”), [1] denying his applications for Disability Insurance Benefits (“DIB”) and Supplemental Security Income (“SSI”). The Court has jurisdiction over the matter pursuant to 42 U.S.C. §§ 405(g), 1383(c).


         On May 11, 2012, Plaintiff protectively filed applications for DIB and SSI, alleging disability beginning October 31, 2009. These claims were denied initially on July 25, 2012. Plaintiff filed a written request for a hearing, which was held on August 28, 2013 in Buffalo, New York. Administrative Law Judge David Lewandowski (“the ALJ”) presided. David Sypher, an impartial vocational expert (“the VE”), appeared and testified. Plaintiff appeared with his attorney and testified. At the hearing, Plaintiff amended his onset date to February 11, 2011. On April 16, 2014, the ALJ issued an unfavorable decision.[2] Plaintiff's request for review was denied by the Appeals Council on July 2, 2015, making the ALJ's decision the final decision of the Commissioner. Plaintiff then timely commenced this action.


         At step one of the sequential evaluation, the ALJ found that Plaintiff had not engaged in substantial gainful activity since February 11, 2011, the amended alleged onset date. At step two, the ALJ found that Plaintiff had the following “severe” impairments: lumbar protrusion, asthma, major depressive disorder, and left elbow and shoulder tendinitis. At step three, the ALJ determined that Plaintiff's impairments, considered singly or together, did not meet or equal one of the listed impairments in 20 C.F.R. Pt. 404, Subpt. P, App. 1. The ALJ specifically considered Listings 1.04 (disorders of the spine), 3.03 (asthma), 1.02 (major dysfunction of a joint), and 12.04 (affective disorders).

         Prior to proceeding to step four, the ALJ determined that Plaintiff had the residual functional capacity (“RFC”) to perform the exertional requirements of light work as defined in 20 C.F.R. §§ 404.1567(b), 416.967(b), and could frequently perform postural activities; reach, push and pull; must avoid pulmonary irritants; and was able to understand, remember and carry out simple instructions, perform simple tasks, and work in small, familiar groups.

         At step four of the sequential evaluation, the ALJ concluded that Plaintiff had past relevant work (“PRW”) as an assistant manager at Autozone, doing patient intake at a health care center, retail sales at Macy's, and order picking at a corporate services company. However, he was not able to perform the demands of his PRW. Continuing to step five, the ALJ relied on the VE's testimony (T.77-78) to find there were other jobs existing in the national economy that a person of Plaintiff's age, and with his education, work experience, and RFC, could perform the requirements of the following representative occupations: electrical assembler, inspector/hand packager, and mail sorter. Accordingly, the ALJ entered a finding of “not disabled.”


         A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by “substantial evidence” or if the decision is based on legal error. 42 U.S.C. § 405(g); see also Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). The district court must accept the Commissioner's findings of fact, provided that such findings are supported by “substantial evidence” in the record. See 42 U.S.C. § 405(g) (the Commissioner's findings “as to any fact, if supported by substantial evidence, shall be conclusive”). “Substantial evidence means ‘such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quotation omitted). The reviewing court nevertheless must scrutinize the whole record and examine evidence that supports or detracts from both sides. Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1998) (citation omitted). “The deferential standard of review for substantial evidence does not apply to the Commissioner's conclusions of law.” Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003) (citing Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)).


         I. Failure to Develop the Record

         “Because a hearing on disability benefits is a non-adversarial proceeding, the ALJ generally has an affirmative obligation to develop the administrative record.” Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996) (citing Echevarria v. Secretary of Health & HumanServs., 685 F.2d 751, 755 (2d Cir. 1982)). “Whether dealing with a pro se claimant or one represented by counsel, the ALJ must ‘develop [the claimant's] complete medical history.'” Lopez v. Comm'r of Soc. Sec., 622 F. App'x 59, 60 (2d Cir. 2015) (summary order) (citing 20 C.F.R. § 404.1512; Perez, 77 F.3d at 47 (describing duty to develop record)). “[T]he agency is required affirmatively to seek out additional evidence only where there are ‘obvious gaps' in the administrative record.” Eusepi v. Colvin, 595 F. App'x 7, 9 (2d Cir. 2014) (summary order) (quoting Rosa v. Callahan, 168 F.3d 72, 79 & n. 5 (2d Cir. 1999)). “[W]where there are no obvious gaps in the administrative record, and where the ALJ already ...

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