Thomas v. Berryhill
Filing
23
DECISION AND ORDER denying 16 Motion for Judgment on the Pleadings; granting 19 Motion for Judgment on the Pleadings. Clerk of Court directed to close the file. Signed by Hon. Leslie G. Foschio on 10/4/2018. (SDW)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
________________________________________
ROBERT THOMAS
Plaintiff,
DECISION
and
ORDER
v.
1
NANCY A. BERRYHILL, Commissioner of
Social Security,
17-CV-00203-LGF
(consent)
Defendant.
_________________________________________
APPEARANCES:
LAW OFFICES OF KENNETH A. HILLER
Attorneys for Plaintiff
JEANNE NURRAY, of Counsel
6000 Bailey Avenue
Suite 1A
Amherst, New York 14226
JAMES P. KENNEDY
ACTING UNITED STATES ATTORNEY
Attorney for Defendant
CATHERINE ZURBRUGG
Assistant United States Attorney, of Counsel
Federal Centre
138 Delaware Avenue
Buffalo, New York 14202, and
STEPHEN P. CONTE
Regional Chief Counsel
United States Social Security Administration
Office of the General Counsel, of Counsel
26 Federal Plaza
Room 3904
New York, New York 10278
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Nancy A. Berryhill became Acting Commissioner of the Social Security Administration on January 23,
2017. Pursuant to Rule 25(d) of the Federal Rules of Civil Procedure, Nancy A. Berryhill should be
substituted for Carolyn Colvin as the defendant in this suit. No further action is required to continue this
suit by reason of sentence one of 42 U.S.C. § 405(g).
JURISDICTION
On June 19, 2018, the parties consented, pursuant to 28 U.S.C. ' 636(c) and a
Standing Order (Dkt. No. 20), to proceed before the undersigned. (Dkt. No. 20-1). The
court has jurisdiction over the matter pursuant to 42 U.S.C. ' 405(g). The matter is
presently before the court on motions for judgment on the pleadings, filed on November
29, 2017, by Plaintiff (Dkt. No. 16), and on January 29, 2018, by Defendant (Dkt. No.
19).
BACKGROUND and FACTS
Plaintiff Robert Thomas (“Plaintiff”), brings this action pursuant to the Social
Security Act (“the Act”), seeking review of the Acting Commissioner of Social Security
(“the Commissioner” or “Defendant”) decision denying his application for disability
benefits for Supplemental Security Income (“SSI”) benefits under Title II of the Act, and
Social Security Disability Insurance (“SSDI”) benefits under Title XVI of the Act, together
(“disability benefits”). Plaintiff, born on November 14, 1976 (R.34), alleges that he
became disabled on January 21, 2014, when he stopped working as a result of
depression, chronic back pain, and panic attacks. (R. 145).
Plaintiff’s application for disability benefits was initially denied by Defendant on
March 11, 2014 (R. 63), and, pursuant to Plaintiff’s request on March 13, 2014, a
hearing was held before Administrative Law Judge Christopher Juge (“Judge Juge” or
“the ALJ”) on July 16, 2016, in Buffalo, New York, where Plaintiff, represented by Kelly
Laga, Esq. (“Laga”) appeared and testified at the hearing. (R. 31-52). The ALJ’s
decision denying Plaintiff's claim was rendered on August 1, 2016. (R. 19-27). Plaintiff
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requested review by the Appeals Council, and on January 6, 2017, the ALJ’s decision
became Defendant’s final decision when the Appeals Council denied Plaintiff’s request
for review. (R. 1-4). This action followed on March 6, 2017, with Plaintiff alleging that
the ALJ erred by failing to find him disabled. (Dkt. No. 1).
On November 29, 2017, Plaintiff filed a motion for judgment on the pleadings
(“Plaintiff’s motion”), accompanied by a memorandum of law (Dkt. No. 16) (“Plaintiff’s
Memorandum”). Defendant filed, on January 29, 2018, Defendant’s motion for
judgment on the pleadings (“Defendant’s motion”), accompanied by a memorandum of
law (Dkt. No. 19) (“Defendant’s Memorandum”). Plaintiff filed a reply to Defendant’s
motion for judgment on the pleadings on January 10, 2017 (“Plaintiff's Reply
Memorandum”) (Dkt. No. 22). Oral argument was deemed unnecessary.
DISCUSSION
A district court may set aside the Commissioner’s determination that a claimant is
not disabled if the factual findings are not supported by substantial evidence, or the
decision is based on legal error. See 42 U.S.C. 405(g); Green-Younger v. Barnhart,
335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence” means ‘such relevant
evidence as a reasonable mind might accept as adequate.’” Shaw v. Chater, 221 F.3d
126, 131 (2d Cir. 2000).
A.
Standard and Scope of Judicial Review
The standard of review for courts reviewing administrative findings regarding
disability benefits, 42 U.S.C. §§ 401-34 and 1381-85, is whether the administrative law
judge's findings are supported by substantial evidence. Richardson v. Perales, 402
3
U.S. 389, 401 (1971). Substantial evidence requires enough evidence that a
reasonable person would "accept as adequate to support a conclusion." Consolidated
Edison Co. v. N.L.R.B., 305 U.S. 197, 229 (1938). When evaluating a claim, the
Commissioner must consider "objective medical facts, diagnoses or medical opinions
based on these facts, subjective evidence of pain or disability (testified to by the
claimant and others), and . . . educational background, age and work experience."
Dumas v. Schweiker, 712 F.2d 1545, 1550 (2d Cir. 1983) (quoting Miles v. Harris, 645
F.2d 122, 124 (2d Cir. 1981)). If the opinion of the treating physician is supported by
medically acceptable techniques and results from frequent examinations, and the
opinion supports the administrative record, the treating physician's opinion will be given
controlling weight. Schisler v. Sullivan, 3 F.3d 563, 567 (2d Cir. 1993); 20 C.F.R. §
404.1527(d); 20 C.F.R. § 416.927(d). The Commissioner's final determination will be
affirmed, absent legal error, if it is supported by substantial evidence. Dumas, 712 F.2d
at 1550; 42 U.S.C. §§ 405(g) and 1383(c)(3). "Congress has instructed . . . that the
factual findings of the Secretary,2 if supported by substantial evidence, shall be
conclusive." Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
The applicable regulations set forth a five-step analysis the Commissioner must
follow in determining eligibility for disability insurance benefits. 20 C.F.R. §§ 404.1520
and 416.920. See Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986); Berry v.
Schweiker, 675 F.2d 464 (2d Cir. 1982). The first step is to determine whether the
2
Pursuant to the Social Security Independence and Program Improvements Act of 1994, the function of
the Secretary of Health and Human Services in Social Security cases was transferred to the
Commissioner of Social Security, effective March 31, 1995.
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applicant is engaged in substantial gainful activity during the period for which benefits
are claimed. 20 C.F.R. §§ 404.1520(b) and 416.920(b). If the claimant is engaged in
such activity the inquiry ceases and the claimant is not eligible for disability benefits. Id.
The next step is to determine whether the applicant has a severe impairment which
significantly limits the physical or mental ability to do basic work activities as defined in
the applicable regulations. 20 C.F.R. §§ 404.1520(c) and 416.920(c). Absent an
impairment, the applicant is not eligible for disability benefits. Id. Third, if there is an
impairment and the impairment, or an equivalent, is listed in Appendix 1 of the
regulations and meets the duration requirement, the individual is deemed disabled,
regardless of the applicant's age, education or work experience, 20 C.F.R. §§
404.1520(d) and 416.920(d), as, in such a case, there is a presumption the applicant
with such an impairment is unable to perform substantial gainful activity.3 42 U.S.C. §§
423(d)(1)(A) and 1382(c)(a)(3)(A); 20 C.F.R. §§ 404.1520 and 416.920. See also
Cosme v. Bowen, 1986 WL 12118, at * 2 (S.D.N.Y. 1986); Clemente v. Bowen, 646
F.Supp. 1265, 1270 (S.D.N.Y. 1986).
However, as a fourth step, if the impairment or its equivalent is not listed in
Appendix 1, the Commissioner must then consider the applicant's "residual functional
capacity" and the demands of any past work. 20 C.F.R. §§ 404.1520(e), 416.920(e). If
the applicant can still perform work he or she has done in the past, the applicant will be
denied disability benefits. Id. Finally, if the applicant is unable to perform any past
work, the Commissioner will consider the individual's "residual functional capacity," age,
3
The applicant must meet the duration requirement which mandates that the impairment must last or be
expected to last for at least a twelve-month period. 20 C.F.R. §§ 404.1509 and 416.909.
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education and past work experience in order to determine whether the applicant can
perform any alternative employment. 20 C.F.R. §§ 404.1520(f), 416.920(f). See also
Berry, 675 F.2d at 467 (where impairment(s) are not among those listed, claimant must
show that he is without "the residual functional capacity to perform [her] past work"). If
the Commissioner finds that the applicant cannot perform any other work, the applicant
is considered disabled and eligible for disability benefits. 20 C.F.R. §§ 404.1520(g),
416.920(g). The applicant bears the burden of proof as to the first four steps, while the
Commissioner bears the burden of proof on the final step relating to other employment.
Berry, 675 F.2d at 467.
In reviewing the administrative finding, the court must follow the five-step
analysis and 20 C.F.R. § 416.935(a) (“§ 416.935(a)”), to determine if there was
substantial evidence on which the Commissioner based the decision. 20 C.F.R. §
416.935(a); Richardson, 402 U.S. at 410.
B.
Substantial Gainful Activity
The first inquiry is whether the applicant engaged in substantial gainful activity.
"Substantial gainful activity" is defined as "work that involves doing significant and
productive physical or mental duties” done for pay or profit. 20 C.F.R. § 404.1510(a)(b).
Substantial work activity includes work activity that is done on a part-time basis even if it
includes less responsibility or pay than work previously performed. 20 C.F.R. §
404.1572(a). Earnings may also determine engagement in substantial gainful activity.
20 C.F.R. § 404.1574. In this case, the ALJ determined that Plaintiff did not meet
Plaintiff's burden of proof to establish that Plaintiff did not engage in substantial gainful
activity at step one of the sequential disability evaluation. (R. 21). In particular, the ALJ
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found that Plaintiff worked as a baker from March 1, 2014 until June 9, 2014, with
earnings of $553.00 during the first quarter of 2014, earnings of $3,465.00 during the
second quarter of 2014, and earnings of $940 during the third quarter of 2014.
Significantly, these earnings are inconsistent with Plaintiff's alleged date of disability of
January 21, 2014. Plaintiff also testified that he worked as a handyman on occasion
during that same period. (R. 215). Plaintiff does not contest the ALJ’s finding that
Plaintiff is not disabled at step one of the sequential disability analysis. Substantial
evidence thus supports the ALJ’s finding that Plaintiff engaged in substantial gainful
activity during the relevant period of disability. Plaintiff's motion for judgment on the
pleadings alleging error in the ALJ’s subsequent steps of the disability analysis is
DENIED.
Because the undersigned finds Plaintiff is not disabled at the first step of the fivestep evaluation, the remaining steps are not considered. See 20 C.F.R. ' 404.1520(b),
Cutter v. Colvin, 673 Fed. App’x. 78, 80 (2d Cir. 2016) (a finding of not disabled is
automatic if you are doing substantial gainful activity).
CONCLUSION
Based on the foregoing, Plaintiff's motion (Doc. No. 16) is DENIED; Defendant’s
motion (Doc. No. 19) is GRANTED. The Clerk of Court is ordered to close the file.
SO ORDERED.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
DATED: October 4, 2018
Buffalo, New York
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