Washington v. Astrue

Filing 13

ORDER granting in part and denying in part 9 Motion to Reverse the Decision of the Commissioner, and denying 12 Motion to Affirm the Decision of the Commissioner. See attached opinion. Signed by Judge Thomas P. Smith on October 4, 2011. (Slitt, M.)

UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT

DANIEL WASHINGTON,
- Plaintiff
v.

CIVIL NO. 3:10CV01538(CFD)(TPS)

MICHAEL J. ASTRUE,
COMMISSIONER, SOCIAL
SECURITY ADMINISTRATION,
- Defendant
MAGISTRATE JUDGE’S OPINION
The plaintiff, Daniel Washington, brings this appeal under
§§ 205(g) and 1631(c)(3) of the Social Security Act, as amended,
42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of a final
decision

by

the

Commissioner

of

the

Social

Security

Administration (“SSA”) denying his application for benefits under
Title XVI of the Social Security Act, as amended, 42 U.S.C. §
1382c(a)(3)(A).1

The plaintiff has moved for an order reversing

the Commissioner’s decision or, in the alternative, for an order
remanding his case back to the SSA for further proceedings (Dkt.
#9).

The

decision.

defendant
(Dkt.

has

#12).

moved
For

for

the

an

order

reasons

affirming

stated

below,

the
the

plaintiff’s motion should be GRANTED in part, and DENIED in part.
It should be GRANTED to the extent that it seeks a remand for

1

The plaintiff, through counsel, acknowledged at the hearing before the
Administrative Law Judge that he could not prove eligibility for Title II
Social Security Disability Insurance Benefits. (Tr. 74; Dkt. #9 at 17, n. 21).

further proceedings.

It should be DENIED to the extent it seeks

an

the

order

reversing

decision

of

the

Commissioner.

defendant’s motion to affirm should be DENIED.

The

28 U.S.C. § 636

(b)(1)(A).
I.
On

PROCEDURAL BACKGROUND
May

1,

2008,

the

plaintiff

filed

applications

for

a

period of disability, Title II Disability Insurance Benefits, and
Title XVI Supplemental Security Income, with an alleged onset
date of January 1, 2002. (Tr. 137-149, 176).

Those applications

were denied initially and again upon reconsideration (Tr. 77-93,
260-267).

The

plaintiff

requested

a

hearing

before

an

Administrative Law Judge (“ALJ”), which was held on February 19,
2010. (Tr. 94, 40-76).

The plaintiff, who was represented by

counsel, and a vocational expert appeared and testified at the
hearing. (Tr. 40-76).
At

the

conclusion

administrative

record

of

to

the

hearing,

remain

submission of additional evidence.

open

the

for

ALJ

two

(Tr. 73-75).

allowed

weeks

for

the
the

In particular,

plaintiff’s counsel indicated that he was awaiting the return of
a

residual

functional

capacity

(RFC)

statement

plaintiff’s primary care physician. (Tr. 46).

from

the

The deadline for

submitting additional evidence was extended once more by the ALJ,
and despite subsequent correspondence between plaintiff’s counsel
-2-

and the ALJ, plaintiff’s counsel did not specifically request
another extension of time.
received

the

RFC

statement

On April 27, 2010, without having
from

the

plaintiff’s

treating

physician, the ALJ issued a decision denying the claim, on the
grounds that there are jobs that exist in significant numbers in
the national economy that the plaintiff can perform despite his
impairments, and thus the plaintiff is “not disabled” within the
meaning of the Social Security Act. (Tr. 24-39).
After the Decision Review Board (“the Board”) selected the
plaintiff’s claim for review, plaintiff’s counsel submitted the
statement from the plaintiff’s treating physician, and requested
that it be made part of the administrative record.

(Tr. 8-9).

On July 27, 2010, the Board informed the plaintiff that the
additional information did not satisfy the regulatory criteria
for

consideration

as

part

of

the

record

under

20

C.F.R.

§405.373(b) and, therefore, it found no basis for changing the
ALJ’s decision (Tr. 1-2).

The ALJ’s decision, as affirmed by the

Board, became the final decision of the Commissioner.

(Tr. 1).

The plaintiff filed the Complaint in this case on September
28, 2010, and the Motion to Reverse or Remand the Decision of the
Commissioner on February 28, 2011.

The defendant filed a Motion

to Affirm the Decision of the Commissioner on June 9, 2011.

-3-

II.

STANDARD OF REVIEW

In reviewing a final decision of the Commissioner under §§
405(g) and 1383(c)(3), the district court performs an appellate
function.

Zambrana v. Califano, 651 F.2d 842, 844 (2d Cir.

1981); Igonia v. Califano, 568 F.2d 1383, 1387 (D.C. Cir. 1977).
A reviewing court will “set aside the ALJ’s decision only where
it is based upon legal error or is not supported by substantial
evidence.”
Alston

v.

Balsamo v. Chater,
Sullivan,

904

, 79 (2d Cir. 1998).

F.2d

122,

126

(2d

Cir.

See also

1990)(“As

a

general matter, when we review a decision denying benefits under
the

Act,

we

determinations

must
as

regard

conclusive

the
unless

[Commissioner’s]
they

are

factual

unsupported

by

substantial evidence”)(citations omitted). “Substantial evidence”
is less than a preponderance, but “more than a scintilla.

It

means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.”

Richardson v. Perales, 402

U.S. 389, 401 (1971)(quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)).

See Yancey v. Apfel, 145 F.3d 106, 110 (2d

Cir. 1998); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988).
In

determining

court must

“take

whether

the

into account

detracts from its weight.”
U.S. 474, 488 (1951).

evidence
whatever

is

substantial,

in the

the

record fairly

Universal Camera Corp. v. NLRB, 340

See also New York v. Sec’y of Health and
-4-

Human Servs., 903 F.2d 122, 126 (2d Cir. 1990)(stating that the
court,

in

assessing

whether

the

evidence

which

supports

the

Commissioner’s position, is required to “review the record as a
whole”)(citations omitted).

Still, the ALJ need not “reconcile

every conflicting shred of medical testimony.”
645 F.2d 122, 124 (2d Cir. 1981).

Miles v. Harris,

In sum, “the role of the

district court is quite limited and substantial deference is to
be afforded the Commissioner’s decision.”

Morris v. Barnhardt,

02 Civ. 0377 (AJP), 2002 U.S. Dist. LEXIS 13681, at *12 (S.D.N.Y.
July 26, 2002).
The regulations promulgated by the Commissioner establish a
five-step analysis for evaluating disability claims.

Bowen v.

Yuckert, 482 U.S. 137, 140-142 (1987); 20 C.F.R. §§ 404.1520,
416.920.

First, the Commissioner considers if the claimant is

presently working in substantial gainful activity.
404.1520(a)(4)(I), 416.920(a)(4)(I).

20 C.F.R. §§

If not, the Commissioner

next considers if the claimant has a medically severe impairment.
Id. §§ 404.1520 (a)(4)(ii), 416.920(a)(4)(ii).

If the severity

requirement is met, the third inquiry is whether the impairment
is listed in Appendix 1 of the regulations or is equal to a
listed

impairment.

Id.

§§

Pt.

404,

Subpt.

granted.

If

416.920(a)(4)(iii);
disability

is

not,
-5-

404.1520
P.
the

App.

(a)(4)(iii),
1.

fourth

If

inquiry

so,
is

the
to

determine whether, despite the severe impairment, the claimant’s
residual functional capacity allows him or her to perform any
past work.

Id. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv).

If a

claimant demonstrates that no past work can be performed, it then
becomes incumbent upon the Commissioner to come forward with
evidence that substantial gainful alternative employment exists
which

the

perform.

claimant

has

the

residual

functional

capacity

Id. §§ 404.1520(a)(4)(v), 404.1520(a)(4)(v).

Commissioner

fails

to

come

forward

with

claimant is entitled to disability benefits.

such

to

If the

evidence,

the

Alston v. Sullivan,

904 F.2d 122, 126 (2d Cir. 1990); Berry, 675 F.2d at 467.
While the claimant bears the burden of proving the first
four steps, the Commissioner must prove the final one.
675 F.2d at 467.
that

he

is

Berry,

Thus, if the claimant is successful in showing

unable

to

continue

his

past

relevant

work,

“the

[Commissioner] then has the burden of proving that the claimant
still

retains

a

residual

functional

capacity

to

perform

alternative substantial gainful work which exists in the national
economy.

Bapp v. Bowen, 802 F.2d 601, 604 (2d Cir. 1986).

In addition, “[t]he court...may at any time order additional
evidence to be taken before the Commissioner of Social Security,
but only upon a showing that there is new evidence which is
material

and

that

there

is

good
-6-

cause

of

the

failure

to

incorporate such evidence into the record in a prior proceeding.”
42 U.S.C. § 405(g).
III. DISCUSSION
A.
At

the

The ALJ’s Decision
first

three

steps

of

the

sequential

evaluation

process, the ALJ found that the plaintiff had not engaged in
substantial gainful activity since January 1, 2002; that the
plaintiff’s osteoarthritis of the right knee and obesity were
severe impairments2; and that the impairments did not meet or
equal the criteria of any impairment listed in 20 C.F.R. Part
404, Subpart P, Appendix 1.

(Tr. 30 at Findings 2-4).

then

retained

found

capacity

to

that

Plaintiff

perform

sedentary3

climbing, kneeling, or crawling.
determination

was

based

on

the

work

the

residual

that

did

The ALJ

functional

not

involve

(Tr. 30 at Finding 5).
ALJ’s

determination

that

This
the

plaintiff’s statements concerning the intensity, persistence and
2

The plaintiff’s medical history with respect to his right knee includes
a complex tear of the lateral meniscus, small osteopytes at all three joint
compartments, marked osteoarthritis, clinic note findings showing painful and
limited range of motion of the right knee associated with limping on
ambulation but with intact neurological function, arthroscopic surgery, large
knee effusion, abnormal appearance of the posterior horn of the lateral
meniscus which may reflect a prior partial meniscectomy, abnormalities of the
articulating cartilage, and abnormal lateral tibial plateau with areas of
edema.3 (Tr. 32-33).
“Sedentary work involves lifting no more than 10 pounds at a time and
occasionally lifting or carrying articles like docket files, ledgers, and
small tools. Although a sedentary job is defined as one which involves
sitting, a certain amount of walking and standing is often necessary in
carrying out job duties.” 20 C.F.R. §§ 404,1567(a), 416.967(a).

-7-

limiting effects of his symptoms were not entirely credible. (Tr.
31).

At step four, the ALJ found that the plaintiff could not

return to his past relevant work.

(Tr. 33 at Finding 6).

At

step five, after consultation with a vocational expert, the ALJ
found that, given the Plaintiff’s residual functional capacity,
age,

education

and

work

experience,

he

was

able

to

perform

certain enumerated jobs that existed in significant numbers in
the

national

Accordingly,

economy.
the

ALJ

(Tr.

33-34

determined

that

at
the

Findings
Plaintiff

7-10).
was

not

of

his

disabled. (Tr. 34 at Finding 11).
The

plaintiff

Motion to

Reverse

raises
or

numerous

Remand

issues

in

support

the Commissioner.

As

discussed

above, a reviewing court will “set aside the ALJ’s decision only
where

it

is

based

upon

substantial evidence.”
Cir. 1998).
case

is

legal

error

or

is

not

supported

by

Balsamo v. Chater, 142 F.3d 75, 79 (2d

Thus, the ultimate issue for determination in this
whether

there

is

substantial

evidence

in

the

administrative record to support the decision of the Commissioner
that the plaintiff was not disabled under the Social Security Act
because

he

did

not

have

an

impairment

or

combination

of

impairments that would prevent him from performing alternative
work.

However, before reaching this dispositive issue, the Court

shall first determine whether the Board properly concluded that
-8-

the

statement

respect

to

from

the

the

plaintiff’s

plaintiff’s

ability

treating
to

physician

perform

with

work-related

activities, which was submitted to the Board after the ALJ’s
decision was issued, did not satisfy the regulatory criteria for
consideration

as

part

of

the

administrative

record

under

20

C.F.R. §§ 405.373(b) and 405.430. See also, 42 U.S.C. § 405(g);
Tirado v. Bowen, 842 F.2d 595, 597 (2d Cir. 1988)(the Court may
remand for the taking of additional evidence upon a showing of
new material evidence and good cause for failure to incorporate
such evidence into the record in a prior proceeding).
B.

The

The Board’s Decision to Exclude the RFC Statement
from the Administrative Record

Social

Security

Act

contains

explicit

provisions

regarding the consideration of new evidence by the Board after
the issuance of a decision by the ALJ.

Pursuant to 20 C.F.R.

§405.430:
Subject to §405.373(b) of this part, in claims reviewed
by the Board, the record is closed as of the date of
the administrative law judge’s decision, and the Board
will base its action on the same evidence that was
before the administrative law judge. When it reviews a
claim, the Board will consider only that evidence that
was in the record before the administrative judge.

-9-

(emphasis
accept

added).

the

Pursuant

evidence

if

you

to

§405.373(b), the

show

that

there

is

Board4
a

“will

reasonable

probability that the evidence, alone or when considered with the
other

evidence

of

record,

would

change

the

outcome

of

the

decision, and...[s]ome other unusual, unexpected, or unavoidable
circumstance beyond your control prevented you from submitting
the evidence earlier.”

Id. § 405.373.

After the Board selected

the plaintiff’s claim for review, plaintiff’s counsel submitted
the RFC statement from the plaintiff’s treating physician, and
requested that it be made part of the administrative record.
(Tr. 8-9).
that

the

On July 27, 2010, the Board informed the plaintiff
ALJ

had

of

new

submission
information

did

allowed
evidence
not

more
in

satisfy

than

reasonable

the

case,

the

regulatory

consideration under 20 C.F.R. §405.373(b).

and

time
the

for

the

additional

criteria

for

Therefore, it found

no basis for changing the ALJ’s decision (Tr. 1-2).
i.

Reasonable Probability That The Evidence
Would Change the Outcome of the Decision

As addressed above, the first hurdle for the plaintiff to
overcome in his quest to make his primary care physician’s RFC
statement part of the record under 20 C.F.R. § 405.373 is a
4

“If the administrative law judge’s decision is not our final decision,
you must submit your evidence to the Decision Review Board, and the Board will
consider it if you make the showings required in [§ 405.373(b)].” 20 C.F.R. §
405.373(d).

-10-

showing

that

“there

is

a

reasonable

probability

that

the

evidence, alone or when considered with the other evidence of
record, would change the outcome of the decision...”

The Court

finds that the plaintiff has made the required showing.

Most

importantly, the RFC statement from Dr. Klufas contradicts the
ALJ’s

conclusion

functional
exertion

that

capacity

as

defined

to

the

plaintiff

perform

by

SSR

work

83-10.

retained

At

residual

a sedentary

at

the

level of

the

sedentary

level,

“periods of standing or walking should generally total no more
than about 2 hours of an 8-hour workday, and sitting should
generally total approximately 6 hours of an 8-hour workday.”
83-10.

SSR

The RFC statement completed by Dr. Klufas indicates that

the plaintiff can only sit for 3 or 4 hours per day, and only 2
hours

at

weight,

one
the

time.
RFC

(Tr.

12).

statement

would

Thus,

if

change

granted
the

controlling

outcome

of

the

decision.
In addition, when considered with the other evidence of the
record,

it

lends

support

to

the

plaintiff’s

subjective

complaints, which were discredited by the ALJ, particularly with
respect to his inability to sit throughout an 8 hour workday.

As

the vocational expert confirmed during the hearing, if the ALJ
found the plaintiff’s testimony to be credible, there would be no
work that the plaintiff could perform.
-11-

(Tr. 72-73).

Dr.

Klufas’ RFC statement corroborates this testimony.
ALJ

alluded

to

the

importance

of

the

RFC

Moreover, the

statement

to

the

plaintiff’s case during the hearing.

When plaintiff’s counsel

requested

the

additional

time

to

produce

statement,

the

ALJ

stated, “I would like to see them, especially the RFC if it’s
from someone who’s actually examined him.”

(Tr. 74).

Thus, the

ALJ himself acknowledged the significance of a RFC statement
submitted by the plaintiff’s treating physician in this case.
Furthermore,

in

the

reaching
residual

his

plaintiff

had

sedentary

work

that

did

crawling,

and

(b)

plaintiff’s

intensity,

persistence

functional

not

and

conclusions

include

capacity

(a)

to

climbing,

statements

limiting

that,

perform

kneeling

concerning

effects

of

the

his

or
the

alleged

symptoms were not credible to the extent they were inconsistent
with the above residual functional capacity assessment, the ALJ
noted

that

assessment
Lorenzo,

he

accorded

performed
M.D.

(Tr.

“considerable

by

non-treating

30-33).

Dr.

weight”
DDS

to

the

consultant

Lorenzo’s

RFC

RFC
Maria

assessment

indicated that the plaintiff could not only sit for 6 hours in an
8-hour workday, but that he could also stand and/or walk for 6
hours in an 8-hour workday.

(Tr. 261).

In addition, Dr. Lorenzo

opined that the plaintiff could frequently stoop, crouch and
crawl.

(Tr.

262).

In

comparison,
-12-

the

RFC

statement

later

submitted by Dr. Klufas, the plaintiff’s primary care physician,
indicated that the plaintiff can only sit for 3 or 4 hours per
day, stand and/or walk for 1 or 2 hours per day, and could never
stoop, kneel, crouch and crawl. (Tr. 14).
In

describing

his

rationale

for

according

“considerable

weight” to Dr. Lorenzo’s opinion, the ALJ noted that it was
“well-substantiated by the record as a whole and not contradicted
by any other significant evidence.”5
sentence,
suggests

however,
that

the

the

as

notes

claimant

suggested by Dr. Lorenzo.
capacity

ALJ

determined

is

(Tr. 33).
that

In the next

“additional

slightly

more

evidence

limited

than

Consequently, the [residual functional
by

the

ALJ]

limits

the

claimant

to

sedentary exertional work.” (Tr. 33). Thus, the ALJ indicated
that, while he accorded considerable weight to Dr. Lorenzo’s
opinion because it was not contradicted by other significant
evidence,

he,

nevertheless,

could

not

accept

Dr.

Lorenzo’s

finding on the severity of the plaintiff’s residual functional
capacity.
on

the

The Court finds it reasonable to conclude that, based

ALJ’s

own

statements,

if

afforded

the

opportunity

to

review the RFC statement from the plaintiff’s treating physician,
which significantly contradicts Dr. Lorenzo’s conclusions, there

5

Of course, Dr. Klufas’ RFC statement, which significantly contradicts
Dr. Lorenzo’s conclusions, had not been obtained at this point.

-13-

is a reasonable probability that the ALJ would have come to a
different conclusion regarding the plaintiff’s credibility and
residual functional capacity.

Accordingly, there is a reasonable

probability that Dr. Klufas’ RFC statement, when considered alone
or with the other evidence of record, would change the ultimate
outcome in this case.
ii.

Unusual, Unexpected or Unavoidable
Circumstances Beyond the Plaintiff’s Control

In order for the Board to accept Dr. Klufas’ RFC statement,
the plaintiff must also demonstrate that “[s]ome other unusual,
unexpected, or unavoidable circumstance beyond [the Plaintiff’s]
control prevented [him] from submitting the evidence earlier.”
20 C.F.R. §405.373(b)(3).6

At the conclusion of the hearing, the

ALJ allowed the administrative record to remain open until March
5, 2010 for the submission of additional evidence.

(Tr. 73-75).

In particular, plaintiff’s counsel indicated that he was awaiting
the return of the RFC statement from the plaintiff’s primary care
physician. (Tr. 46). The discussion on the record was as follows:
ALJ:

Okay, so Counsel we’re going to leave this
record open, correct?
ATTY: Yes.
ALJ: In order to –
ATTY: I’ll see if I can get it, I –
ALJ: -- okay, well let’s do this.
Let’s start –we’ll start slow and we’ll work our way –- so
6

While alternative avenues for acceptance of new evidence exist under 20
C.F.R. §405.373(b)(1)and(2), they do not apply to the facts in this case.

-14-

we’ll leave the record open until March 5, and
if you receive anything, please submit it.
If
you do not and you think it’s coming and you
think you just need a little more time –
ATTY: Let you know.
ALJ: –- then just let us know and I will grant you
more time if it’s reasonable to get those
things.
I would like to see them, especially
the RFC if it’s from someone who’s actually
examined him.
(Tr. 73-74).
The record reveals that plaintiff’s counsel timely requested
the form, not only from Dr. Klufas, but also from the plaintiff’s
orthopedist, Dr. Schlein. (Tr. 20-22).

On March 8, 2010, shortly

after the March 5, 2010 deadline had passed, plaintiff’s counsel
requested, and received, an extension of time from the ALJ until
March 26, 2010 to obtain the RFC statement from Dr. Klufas and to
submit the results of a magnetic resonance imaging (MRI) exam
that the plaintiff was having extreme difficulty scheduling with
Dr. Schlein.7 (Tr. 27, 222-223).

On April 9, 2010, plaintiff’s

counsel again corresponded with the ALJ, informing him that the
plaintiff was continuing to have difficulty scheduling the MRI,
and

that

he

scheduled.
letter

from

would

contact

the

ALJ

as

soon

as

the

MRI

is

As the ALJ and the Board point out, the April 9, 2010
plaintiff’s

counsel

did

not

specifically

request

7

The difficulty in scheduling the MRI appears to be a combination of
factors outside the control of the plaintiff, including Dr. Schlein’s vacation
schedule, the plaintiff’s need to be sedated with anesthesia during the MRI
due to claustrophobia, and a delay or misunderstanding between Dr. Schlein and
Dr. Klufas regarding the latter’s approval of the sedation. (Tr. 223-225).

-15-

another extension of time to submit the RFC statement from Dr.
Klufas (Tr. 224).
On April 27, 2010, without having received the RFC statement
from Dr. Klufas or the results of the MRI, the ALJ issued his
decision finding the plaintiff “not disabled.” (Tr. 24-39).

As

plaintiff’s counsel stated in his May 13, 2010 letter to the
Board, in which he attached the recently received RFC statement
from Dr. Klufas, “Counsel assumed, with the outstanding RFC form
and the pending MRI, the ALJ would wait for the RFC form and the
results of the MRI before issuing a decision or at least give a
day on which the record would be closed since he was aware of the
problems securing additional documentation.”
circumstances

outlined

above,

including

(Tr. 8).

the

ALJ’s

Given the
statements

regarding his interest in having the opportunity to review a RFC
from a treating source and willingness to grant additional time
if plaintiff’s counsel “just let[s] us know” of the need, the
Court finds plaintiff’s counsel’s assumption to be plausible,
albeit misplaced.
lay

the

blame

Nevertheless, the Court finds it improper to

for

this

miscalculation

at

the

feet

of

the

plaintiff. In the same vein, Dr. Klufas’ delay in completing the
RFC form should not be imputed to the plaintiff, as he was
undoubtedly at the mercy of his doctor.
circumstances

outlined

above,

including

-16-

Thus, in light of the
a

lack

of

dilatory

conduct on the part of the plaintiff, the Court finds that the
plaintiff satisfied his obligation under 20 C.F.R. §405.373(b)(3)
to show that “[s]ome other unusual, unexpected, or unavoidable
circumstance

beyond

[the

Plaintiff’s]

control

prevented

[him]

from submitting the evidence earlier.”
Accordingly, given the beneficent and remedial purposes of
the Social Security Act, the Court fins that the RFC statement
completed by Dr. Klufas satisfied the regulatory criteria for
consideration

as

part

of

the

administrative

record

under

20

C.F.R. §§ 405.430 and 405.373(b). See Cutler v. Weinberger, 516
F.2d 1282, 1285 (2d Cir. 1975). (“[C]ourts have not hesitated to
remand for
shown,

the

where

taking

of

relevant,

additional

probative,

evidence,

and

on

available

good

cause

evidence

was

either not before the Secretary or was not explicitly weighted
and considered by him, although such consideration was necessary
to

a

just

determination

of

the

claimant’s

application.”)(citations omitted).
V.

CONCLUSION

For

the

remanded

to

reasons
the

set

forth

Commissioner

for

herein,

this

matter

consideration

of

must

be

additional

evidence material to the plaintiff’s application for benefits.
Therefore, the plaintiff’s motion (Dkt. #9) should be GRANTED to
the extent it seeks remand for a further proceedings before the
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ALJ.

On remand, the ALJ shall give proper consideration to Dr.

Klufas’ RFC statement with respect to, inter alia, a revised
analysis of the plaintiff’s credibility and residual functional
capacity.

The plaintiff’s motion should be DENIED to the extent

it seeks an order reversing the decision of the Commissioner.
The defendant’s motion for an order affirming the decision of the
Commissioner

(Dkt.

#12)

should

be

DENIED.

28

U.S.C.

§

636

(b)(1)(A).
The defendant may timely seek review of this recommended
ruling in accordance with Rule 72(b) of the Federal Rules of
Civil Procedure.

Fed. R. Civ. P. 72(b).

bar further review.

Failure to do so may

28 U.S.C. § 636(b)(1)(B); Small v. Sec’y of

Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989).

Dated at Hartford, Connecticut this
2011.

4

th

day of October,

/s/ Thomas P. Smith
THOMAS P. SMITH
UNITED STATES MAGISTRATE JUDGE

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