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Zackowski v. Berryhill

United States District Court, D. New Hampshire

September 11, 2018

Brian Zackowski, Claimant
v.
Nancy A. Berryhill, Acting Commissioner, Social Security Administration, Defendant

          D. Lance Tillinghast, Esq. Terry L. Ollila, Esq.

          ORDER

          STEVEN J. MCAULIFFE UNITED STATES DISTRICT JUDGE.

         Pursuant to 42 U.S.C. § 405(g) and 1383(c)(3), claimant, Brian Zackowski, moves to reverse or vacate the Acting Commissioner's decision denying his application for Disability Insurance Benefits under Title II of the Social Security Act (the “Act”), 42 U.S.C. § 423, and Supplemental Security Income Benefits under Title XVI of the Act, 42 U.S.C. §§ 1381-1383(c). The Acting Commissioner objects and moves for an order affirming her decision.

         For the reasons discussed below, claimant's motion is denied, and the Acting Commissioner's motion is granted.

         Factual Background

         I. Procedural History.

         In 2012, Zackowski filed an application for Disability Insurance Benefits, alleging that he had been unable to work since December 28, 2010, due to a spine injury and depression. Administrative Record (“Admin. Rec.”) at 155, 159. That application was denied (Admin. Rec. at 74), and claimant requested a hearing before an Administrative Law Judge (“ALJ”) (Admin. Rec. at 87). On October 31, 2013, Zackowski appeared without counsel before an ALJ, along with a vocational expert, who considered claimant's application de novo. Admin. Rec. at 23-71. Two weeks later, the ALJ issued his written decision, concluding that Zackowski was not disabled, as that term is defined in the Act, at any time prior to the date of his decision. Id. at 10-22.

         Zackowski sought review of the ALJ's decision by the Appeals Council. Admin. Rec. at 9. By notice dated June 24, 2015, the Appeals Council denied Zackowski's request for review. Admin. Rec. at 1-4. Accordingly, the ALJ's denial of Zackowski's application for benefits became the final decision of the Acting Commissioner, subject to judicial review. Id. at 1.

         Zackowski then filed for federal district court review of the Commissioner's decision. See Admin. Rec. at 393-394. Prior to the court's review, however, the Commissioner, through her attorney, assented to Zackowski's motion to remand the decision for further proceedings, under 42 U.S.C. § 405(g). On June 2, 2016, the Appeals Council vacated the ALJ's earlier decision, and remanded the case to the ALJ for further consideration and evaluation of the treating source opinions in the record.[1]

         On July 11, 2017, the ALJ held a second hearing at which Zackowski, his attorney, and a vocational expert appeared. Admin. Rec. at 344-384. At the hearing, plaintiff amended his alleged onset date of disability to February 6, 2012. Admin. Rec. at 352. On September 15, 2017, the ALJ issued his written decision, concluding that Zackowski was not disabled, as that term is defined in the Act, at any time prior to the date of the decision. Id. at 326-337. Zackowski did not file any written exceptions to the ALJ's decision with the Appeals Council, and, the ALJ's decision thus became the final decision of the Commissioner.

         Zackowski subsequently filed a timely action in this court, asserting that the ALJ's decision is not supported by substantial evidence. Zackowski then filed a “Motion for Order Reversing Decision of the Commissioner” (document no. 7). In response, the Acting Commissioner filed a “Motion for Order Affirming the Decision of the Commissioner” (document no. 9). Those motions are pending.

         II. Stipulated Facts.

         Pursuant to this court's Local Rule 9.1, the parties have submitted a statement of stipulated facts which, because it is part of the court's record (document no. 10), need not be recounted in this opinion. Those facts relevant to the disposition of this matter are discussed as appropriate.

         Standard of Review

         I. “Substantial Evidence” and Deferential Review.

         Pursuant to 42 U.S.C. § 405(g), the court is empowered “to enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” Factual findings and credibility determinations made by the Commissioner are conclusive if supported by substantial evidence. See 42 U.S.C. §§ 405(g), 1383(c)(3). See also Irlanda Ortiz v. Secretary of Health & Human Services, 955 F.2d 765, 769 (1st Cir. 1991). Substantial evidence is “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Consolidated Edison Co. v. NLRB, 305 U.S. 197, 229 (1938). It is something less than a preponderance of the evidence, so the possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence. Consolo v. Federal Maritime Comm'n., 383 U.S. 607, 620 (1966). See also Richardson v. Perales, 402 U.S. 389, 401 (1971).

         II. The Parties' Respective Burdens.

         An individual seeking SSI and DIB benefits is disabled under the Act if he or she 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). See also 42 U.S.C. § 1382c(a)(3). The Act places a heavy initial burden on the claimant to establish the existence of a disabling impairment. See Bowen v. Yuckert, 482 U.S. 137, 146-47 (1987); Santiago v. Secretary of Health & Human Services, 944 F.2d 1, 5 (1st Cir. 1991). To satisfy that burden, the claimant must prove, by a preponderance of the evidence, that his impairment prevents him from performing his former type of work. See Gray v. Heckler, 760 F.2d 369, 371 (1st Cir. 1985); Paone v. Schweiker, 530 F.Supp. 808, 810-11 (D. Mass. 1982). If the claimant demonstrates an inability to perform his previous work, the burden shifts to the Commissioner to show that there are other jobs in the national economy that he can perform, in light of his age, education, and prior work experience. See Vazquez v. Secretary of Health & Human Services, 683 F.2d 1, 2 (1st Cir. 1982). See also 20 C.F.R. §§ 404.1512(f) and 416.912(f).

         In assessing a disability claim, the Commissioner considers both objective and subjective factors, including: (1) objective medical facts; (2) the claimant's subjective claims of pain and disability, as supported by the testimony of the claimant or other witnesses; and (3) the claimant's educational background, age, and work experience. See, e.g., Avery v. Secretary of Health & Human Services, 797 F.2d 19, 23 (1st Cir. 1986); Goodermote v. Secretary of Health & Human Services, 690 F.2d 5, 6 (1st Cir. 1982). Ultimately, a claimant is disabled only if his:

physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.

42 U.S.C. § 423(d)(2)(A). See also 42 U.S.C. § 1382c(a)(3)(B).

         With those principles in mind, the court reviews claimant's motion to reverse and the Acting ...


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