Popick v. Commissioner of Social Security

Filing 25

MEMORANDUM-DECISION AND ORDER: It is ORDERED that the # 24 Report-Recommendation of Magistrate Judge Bianchini is ACCEPTED and ADOPTED; defendant's # 18 motion for judgment on the pleadings is DENIED; plaintiff's # 21 motion for judgm ent on the pleadings is GRANTED; and this action is REMANDED to the Commissioner for further proceedings in accordance with this Order and pursuant to 42 U.S.C. § 405(g). Signed by Judge Glenn T. Suddaby on 3/28/2012. {Served upon pro se plaintiff via regular mail} (mae)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
MILTON H. POPICK,
Plaintiff,
1:09-CV-0386
(GTS/VEB)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

MILTON H. POPICK
Plaintiff, Pro Se
254 Washington Avenue
Kingston, New York 12401
SOC. SEC. ADMIN. OFFICE OF
GENERAL COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

SHEENA V. WILLIAMS-BARR, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this action seeking Supplemental Security Income (“SSI”),
filed by Milton H. Popick (“Plaintiff”) against the Commissioner of Social Security
Commissioner (“Defendant”) under 42 U.S.C. § 405(g) and 1383(c)(3), are the following: (1)
Defendant’s motion for judgment on the pleadings (Dkt. No. 18); (2) Plaintiff’s motion for
judgment on the pleadings (Dkt. No. 21); and (3) the Report-Recommendation of United States
Magistrate Judge Victor E. Bianchini (Dkt. No. 24), issued pursuant to 28 U.S.C. § 636(b)(1)(A)
and (B) and Local Rule 72.3(c) of the Local Rules of Practice for this Court, recommending that
the decision of Defendant be reversed and the matter be remanded to Defendant for further

proceedings consistent with the Report and Recommendation and sentence four of 42 U.S.C. §
405(g). Neither party has filed Objections, and the time in which to do so has expired. For the
reasons set forth below, the Report-Recommendation is accepted and adopted.
I.

RELEVANT BACKGROUND
A.

Procedural History

Because the parties have demonstrated in their briefs an adequate understanding of this
action’s procedural history, and neither party has specifically objected to Magistrate Judge
Bianchini’s accurate recitation of that procedural history, the Court adopts that recitation, in this
Decision and Order, which is intended primarily for the review of the parties. (See generally
Dkt. No. 24, at 2 [Report-Rec].)
The Court would add only two points. First, Plaintiff’s underlying application for SSI
benefits was based on his having an alleged mental disability that began on January 1, 1992.
(See Administrative Transcript [“T.”] at 67-69.)1 Second, in his decision of November 19, 2008,
denying Plaintiff’s application for benefits, the ALJ determined that was not disabled as defined
under the Social Security Act, because there was no evidence in the record to substantiate the
existence of a “medically determinable mental impairment” pursuant to 20 C.F.R. Part 404.1520.
(T. at 8-12.)

1

More specifically, Plaintiff allegedly suffers from diagnosed personality disorder,
not otherwise specified, with schizoid features, and has some limitations arising from this
condition such as moderate difficulties with maintaining social function and in maintaining
concentration, persistence, or pace. (T. at 130, 141-44.)
2

B.

Briefing by Parties

Generally, in his brief in opposition to Plaintiff’s Complaint, Defendant asserts the
following two arguments: (1) substantial evidence supports Defendant’s Decision that Plaintiff
was not disabled at step two of the five-step protocol for evaluating claims of disability under the
Social Security Act; and (2) the ALJ correctly determined that Plaintiff’s allegations were
neither entirely consistent or credible. (Dkt. No. 18, at Part C.)
Generally, liberally construed, Plaintiff’s brief in support of his Complaint argues, inter
alia, that Defendant has improperly reviewed Plaintiff’s employment history, and may have
intentionally altered Plaintiff’s employment records. (See generally Dkt. No. 21.)
C.

Magistrate Judge Bianchini’s Report-Recommendation

In his Report-Recommendation, Magistrate Judge Bianchini recommends that (1)
Plaintiff’s motion for judgment on the pleadings be granted, (2) Defendant’s motion for
judgment on the pleadings be denied, (3) the decision of the Commissioner be reversed, (4) the
case be remanded to the Commissioner pursuant to sentence four of 42 U.S.C. § 405(g) for
further administrative proceedings consistent with this Report and Recommendation, and (5) the
District Court consider the appointment of pro bono counsel to represent Plaintiff in the
proceedings on remand. (Dkt. No. 24, at 13-14.)
Essentially, Magistrate Judge Bianchini recommends that Plaintiff’s case be remanded to
Defendant for further review based on the ALJ’s failure to employ the “special technique” used
to assess the severity of mental impairments (during the second and third steps of the five-step
disability protocol) pursuant to 20 C.F.R. § 404.1520a. (Dkt. No. 24, at 8-13 & n.6.) More
specifically, Magistrate Judge Bianchini found as follows: (1) ALJ incorrectly determined that
the state agency’s consultative examiner had merely “suggested” personality disorder when in
fact the consultative examiner had actually diagnosed Plaintiff’s personality disorder; (2) the
3

ALJ’s dismissal of consultative psychiatrist Dr. Gindes’ diagnosis on the ground that it was
based on Plaintiff’s self-reports was incorrect because (a) such self-reports are an essential
diagnostic tool, and (b) Dr. Gindes’ diagnosis was likely based upon observed abnormalities in
Plaintiff’s behavior, not merely Plaintiff’s self-reports; and (3) the ALJ relied on Plaintiff’s selfreports to support his decision denying Plaintiff SSI benefits yet failed to account for Plaintiff’s
other fantastical claims.2 (Id.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Magistrate Judge Bianchini’s ReportRecommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).3
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first

2

Plaintiff believes his prior federal court case was the result of a White House
cover-up and believes the SSA is also ignoring or altering record evidence in the instant action.
(See, e.g., Dkt. No. 21 [Plf.’s Brief].)
3

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
4

instance.4
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.5 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.6 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.

4

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
5

See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).
6

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
5

72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.7
After conducting the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard Governing Judicial Review of Defendant’s Decision

In Part III.A. of his Report-Recommendation, Magistrate Judge Bianchini correctly
recited the legal standard governing judicial review of Defendant's decision, and the five-step
process for evaluating claims of disability under the Social Security Act. (Dkt. No. 24, at 3-5.)
As a result, those standards are incorporated by reference in this Decision and Order, which
(again) is intended primarily for the review of the parties.
III.

ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge

Bianchini's Report-Recommendation, the Court concludes that Magistrate Judge Bianchini's
thorough Report-Recommendation is correct in all respects. Magistrate Judge Bianchini
employed the proper standards, accurately recited the facts, and reasonably applied the law to
those facts. As a result, the Court accepts and adopts the Report-Recommendation in its entirety
for the reasons stated therein.
The Court would add only that it has carefully considered whether to appoint pro bono
counsel to represent Plaintiff in the administrative proceedings on remand. However, because
7

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
6

Plaintiff has not requested such counsel, or demonstrated an inability to otherwise obtain
counsel, the Court declines to make such an appointment.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Bianchini’s Report-Recommendation (Dkt. No. 24) is
ACCEPTED and ADOPTED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 18) is
DENIED; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 21) is
GRANTED; and it is further
ORDERED that this action is REMANDED to Defendant for further proceedings in
accordance with this Decision and Order and pursuant to 42 U.S.C. § 405(g).
Dated: March 28, 2012
Syracuse, New York

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