Clark v. Colvin

Filing 19

DECISION and ORDER. The recommendation of Magistrate Judge Therese Wiley Dancks in the Report-Recommendation 17 are accepted. ORDERED that plaintiff's complaint is DISMISSED. The Clerk of the Court shall enter judgment and close the case. Signed by Judge David N. Hurd on 3/31/2016. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------RICHARD CLARK,
Plaintiff,
-v-

3:15-CV-25
(DNH/TWD)

CAROLYN W. COLVIN,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

Lachman, Gorton Law Firm
Attorneys for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089

PETER A. GORTON, ESQ.

Social Security Administration
Attorneys for Defendant
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, NY 10278

TOMASINA DiGRIGOLI, ESQ.
Special Asst. U.S. Attorney

DAVID N. HURD
United States District Judge

DECISION and ORDER
Plaintiff Richard Clark filed this action seeking judicial review of a final decision of the
Commissioner of Social Security denying her application for supplemental security income
benefits and disability insurance benefits under the Social Security Act. By ReportRecommendation dated March 4, 2016, the Honorable T hérèse Wiley Dancks, United States

Magistrate Judge, recommended that the decision of the Commissioner be affirmed,
plaintiff's motion for judgment on the pleadings be denied, and defendant's motion for
judgment on the pleadings be granted. Plaintiff filed timely objections to the ReportRecommendation. See ECF No. 18.
In his objections, plaintiff argues that, in accordance with Medical-Vocational Rule
201.09 ("GRID"), his age should be calculated at 50, as of October 19, 2014, which
combined with his ability to perform only sedentary work, limited education and previous
semi-skilled work with a lack of transferrable skills renders him "disabled" within the meaning
of the governing statute. Plaintiff asserts that this entitles him to benefits as of his 50th
birthday and the case should be "remanded solely for the calculation of benefits" as to the
period of October 19, 2014 to present.
However, this argument misses the mark entirely. The instant case and all prior
determinations – the Administrative Law Judge's ("ALJ") decision, the denial of review by the
Appeals Council and Magistrate Judge Dancks's Report-Recommendation – consider the
relevant time period from the onset of disability, August 5, 2010, through the ALJ's decision
on October 28, 2011, in which plaintiff was denied benefits. It is axiomatic that this bounded
time period, from the date of disability onset through the ALJ's decision, creates the "relevant
time period" of a social security disability insurance benefits case. Falcon v. Colvin, 2014 WL
1312362, at *6 (N.D.N.Y. Mar. 31, 2014) (Scullin, J.) ("relevant time period of disability"
begins at onset and continues through the ALJ's decision and new evidence outside that time
period cannot be considered); Evans v. Colvin, 2015 WL 4749169, at *5 (N.D.N.Y. Aug. 10,
2015) (Treece, J.) (according to the regulations only evidence from "the period on or before
the date of the date of the administrative law judge hearing decision" will be considered);
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Stober v. Astrue, 2010 WL 7864971, at *15 (D. Conn. July 2, 2010) ("if the new evidence
concerns only the claimant's condition after the relevant time period, a remand for
consideration of this evidence is not appropriate"); see also Dote-Lowery v. Colvin, 2015 WL
5787016, at *6 (N.D.N.Y. Oct. 1, 2015) (McAvoy, J.) ("relevant time period" begins at the
date of disability onset and continues through the date of the ALJ's decision); Walsh v.
Colvin, 2015 WL 3756859, at *12 (E.D.N.Y. June 16, 2015) (same); Nicole v. Astrue, 2009
WL 4110392, at *9 (N.D.N.Y. Nov. 20, 2009) (McCurn, J.) (same); Fortier v. Astrue, 2010 WL
1506549, at *22 (S.D.N.Y. Apr. 13, 2010) (same). It cannot be overstated that, on the date
of the ALJ's decision, plaintiff was only 47 years old. Thus, he was not "an individual closely
approaching advanced age, being 50 or 51 years of age. 20 C.F.R. §§ 404.1563(d),
416.963(d). Plaintiff would have a GRID applied, retroactively, that does not apply within "the
relevant time period" of the ALJ's decision; however, this is clearly erroneous.
As plaintiff astutely points out in his objections, it is undisputed that plaintif f turned 50
years old nearly three years after the ALJ's decision was rendered. Therefore, the "proper
recourse," given his development in age, "would have been to file a new application for
benefits." Ritter v. Astrue, 32 F. Supp. 3d 193, 204 (N.D.N.Y. 2012) (Mordue, J.) (citing
DeChirico v. Callahan, 134 F.3d 1177, 1184 (2d Cir.1998) (noting that "[the claimant was], of
course, free to file a new application for benefits, pursuant to the relevant regulations, and to
present new evidence of his disability at that time")); see also Feliciano v. Barnhart, 2005 WL
1693835, at *10 (S.D.N.Y. July 21, 2005) (where there is new evidence or a change in
circumstances, after the ALJ's decision is rendered, claimant may file a new application for
disability benefits).

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The remaining objections of plaintiff are also without merit. The recommendations of
Magistrate Judge Dancks in the Report-Recommendation are accepted. See 28 U.S.C.
§ 636(b)(1).
Therefore,
it is ORDERED that
Plaintiff's complaint is DISMISSED.
The Clerk of the Court shall enter judgment and close the case.
IT IS SO ORDERED.

Dated: March 31, 2016
Utica, New York

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