Fee v. Astrue

944 F. Supp. 2d 237, 2013 WL 1960765, 2013 U.S. Dist. LEXIS 67255
CourtDistrict Court, W.D. New York
DecidedMay 10, 2013
DocketNo. 11-CV-6625L
StatusPublished

This text of 944 F. Supp. 2d 237 (Fee v. Astrue) is published on Counsel Stack Legal Research, covering District Court, W.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fee v. Astrue, 944 F. Supp. 2d 237, 2013 WL 1960765, 2013 U.S. Dist. LEXIS 67255 (W.D.N.Y. 2013).

Opinion

DECISION AND ORDER

DAVID G. LARIMER, District Judge.

INTRODUCTION

Plaintiff Robert Fee (“plaintiff’) brings this action under 42 U.S.C. § 405(g) to review the final determination of the Commissioner of Social Security (“the Commissioner”) that he is not disabled under the Social Security Act, and therefore, is not entitled to a period of Social Security disability and disability insurance benefits.

Plaintiff originally applied for Social Security disability benefits on May 5, 2010, alleging that he had been disabled since March 30, 2012, due to a constellation of health issues including diabetes, hypertension, high cholesterol, sleep apnea, chronic obstructive pulmonary disease (“COPD”), back spasms, and morbid obesity. (Tr. 213). Plaintiffs application was initially denied. Plaintiff then requested a hearing before an administrative law judge (“ALJ”).

A video hearing was held before ALJ Lawrence Levey on July 26, 2011 (Tr. 18). The ALJ determined that plaintiff was not disabled under the Act (Tr. 18-24), and that decision became the final decision of the Commissioner on November 10, 2011 when the Appeals Council denied plaintiffs request for review. (Tr. 1-3). This appeal followed.

The plaintiff has moved (Dkt.# 6) and the Commissioner has cross moved (Dkt.# 9) for judgment on the pleadings pursuant to Fed. R. Civ. Proc. 12(c). As discussed below, the Commissioner’s decision is reversed, and the matter is remand[239]*239ed for the calculation and payment of benefits.

FACTUAL BACKGROUND

Familiarity with the pertinent facts, summarized below, is presumed.

Plaintiff was born May 8, 1953 and was 58 years old at the time of his hearing. (Tr. 253). He has a college education and a steady history of past employment, including jobs as a rewriter/translator of educational materials for teaching English as a second language, group home house parent, manufacturing shipper and receiver, thrift store manager, used car lot manager and teacher. (Tr. 80-81,187).

Plaintiffs medical diagnoses, for which ample treatment records were provided to the ALJ, consist primarily of chronic back pain, diabetes, morbid obesity, and other health issues commonly associated with those conditions. .

DISCUSSION

I. Standard for Determining Disability

A person is considered disabled when he is unable “to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months____” 42 U.S.C. § 423(d)(1)(A). In order to determine whether a claimant is disabled, an ALJ employs a five-step inquiry:

The first step determines whether the claimant is engaged in ‘substantial gainful activity.’ If he is, benefits are denied. If he is not engaged in such activity, the process moves to the second step, which decides whether the claimant’s condition or impairment is ‘severe’ — i.e., one that significantly limits his physical or mental ability to do basic work activities. If the impairment is not severe, benefits are denied. If the impairment is severe, the third step determines whether the claimant’s impairments meet or equal those set forth in the ‘Listing of Impairments’... contained in subpart P, appendix 1, of the regulations.... If the claimant’s impairments are not listed, the process moves to the fourth step, which assesses the individual’s ‘residual functional capacity’ (RFC); this assessment measures the claimant’s capacity to engage in basic work activities. If the claimant’s RFC permits him to perform his prior work, benefits are denied. If the claimant is not capable of doing his past work, a decision is made under the fifth and final step whether, in light of his RFC, age, education, and work experience, he has the capacity to perform other work. If he does not, benefits are awarded.

Bowen v. City of New York, 476 U.S. 467, 470-71, 106 S.Ct. 2022, 90 L.Ed.2d 462 (1986) (citations omitted). It is well-settled that plaintiff bears the burden of proof at the first four steps of the analysis. At the fifth and final stage of this process, the burden shifts to the Commissioner to prove that the claimant is capable of performing other work that exists in the national economy. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998); Perez v. Chater, 77 F.3d 41, 46 (2d Cir.1996).

II. The ALJ’s Decision

At the first step, the ALJ found that plaintiff had not engaged in substantial gainful activity since his alleged onset date of March 30, 2010 (Tr. 20). The ALJ concluded that plaintiff had severe impairments, consisting of degenerative disc disease with radiculopathy (nerve compression), orthostatic hypotension (a sudden drop in blood pressure upon standing), COPD, sleep apnea, and obesity. Id. Al[240]*240though plaintiffs medical records indicate that he was morbidly obese at 5'10" tall and 315 pounds in weight at the time of his initial application (Tr. 213), he testified at the hearing on July 26, 2011 that he had lost over one hundred pounds in the previous year, after making dietary changes, and had reduced his weight from 348 pounds at the time of a hospitalization in 2010 to approximately 236 pounds. (Tr. 53).

At step four, after summarizing the plaintiffs medical records and the opinions of his treating, examining and reviewing physicians, the ALJ concluded that plaintiff retained the RFC to perform sedentary work, except that he required a sit-stand option, could only occasionally use his right foot to push, pull or operate foot controls, could only occasionally climb ramps or stairs, could not climb ladders, ropes or scaffolds, could only occasionally balance or stoop, could not kneel, crouch or crawl, and could not engage in work which would expose him to unprotected heights or hazardous machinery. (Tr. 21).

Based upon testimony from vocational expert Dennis Conroy (“VE”), the ALJ concluded that plaintiffs RFC permitted him to return to his past relevant work as an ESL writer (a position found by the VE to be comparable to the job of process-description writer, as defined by the Dictionary of Occupational Titles). (Tr. 88). As such, the ALJ concluded that plaintiff was not disabled. (Tr. 24).

III. Standards of Review

The Commissioner’s decision' that plaintiff was ineligible to receive benefits must be affirmed if it applies the correct legal standards and is supported by substantial evidence. 42 U.S.C. § 405(g); Shaw v. Chater, 221 F.3d 126, 131 (2d Cir.2000); Balsamo v. Chater,

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944 F. Supp. 2d 237, 2013 WL 1960765, 2013 U.S. Dist. LEXIS 67255, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fee-v-astrue-nywd-2013.