Marvin v. Colvin

Filing 24

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Christian F. Hummel's February 16, 2016 23 Report-Recommendation and Order is ADOPTED in its entirety. That the decision of the Commissioner is REVERSED and REMANDED pursuant to sentencing four of 42 U.S.C. § 405(g) for proceedings consistent with this Memorandum-Decision and Order. Signed by Senior Judge Gary L. Sharpe on 5/20/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
DAWN MARVIN,
Plaintiff,

3:15-cv-74
(GLS/CFH)

v.
CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lachman, Gorton Law Firm
P.O. Box 89
1500 East Main Street
Endicott, NY 13761-0089
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Senior District Judge

PETER A. GORTON, ESQ.

SANDRA M. GROSSFELD
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Dawn Marvin challenges defendant Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking review under 42 U.S.C. §§ 405(g) and
1383(c)(3).1 (Compl., Dkt. No. 1.) In a Report-Recommendation and
Order (R&R) filed February 16, 2016, Magistrate Judge Christian F.
Hummel recommended that the matter be remanded to the Commissioner
for further administrative proceedings. (Dkt. No. 23.) No party has filed
objections to the R&R. For slightly different reasons that those noted by
Judge Hummel, the court adopts the R&R and remands the
Commissioner’s decision.
II. Background2
On August 20, 2008, Marvin filed applications for DIB and SSI under
the Social Security Act. (Tr.3 at 96-97, 208-17.) After her applications

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42 U.S.C. § 1383(c)(3) renders section 405(g) applicable to judicial review of SSI
claims. As review under both sections is identical, parallel citations to the regulations governing
SSI are omitted.
2

The court incorporates the factual recitations of the parties and Judge Hummel. (See
generally Dkt. Nos. 13, 22, 23.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)

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were denied, Marvin requested a hearing before an Administrative Law
Judge (ALJ), which was held on February 22, 2010 before ALJ John P.
Ramos. (Id. at 72-95, 120-25, 133-35.) On May 3, 2010, ALJ Ramos
issued a decision denying the requested benefits. (Id. at 98-116.) At
Marvin’s request, the Social Security Administration Appeals Council
remanded the case back to ALJ Ramos for further proceedings. (Id. at
117-19.) Thereafter, a second administrative hearing was held and, on
November 4, 2011, ALJ Ramos again denied Marvin’s applications. (Id. at
7-71.) After the Social Security Administration Appeals Council’s denial of
review of that decision, (id. at 1-5), Marvin commenced an action in
Federal District Court, (id. at 763-64).
In March 2014, by Memorandum-Decision and Order, this court
remanded the matter for further administrative proceedings consistent with
its order. (Id. at 792-93.) The court addressed all of Marvin’s contentions
and found that ALJ Ramos’ residual functional capacity (RFC)4

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A claimant’s RFC “is the most [she] can still do despite [her] limitations.” 20 C.F.R.
§ 404.1545(a)(1). In assessing a claimant’s RFC, an ALJ must consider “all of the relevant
medical and other evidence,” including a claimant’s subjective complaints of pain. Id.
§ 404.1545(a)(3). An ALJ’s RFC determination must be supported by substantial evidence in
the record. See Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 486 (2d. Cir. 2012). If it is, that
determination is conclusive and must be affirmed upon judicial review. See id.; see also Perez
v. Chater, 77 F.3d 41, 46 (2d Cir. 1996).

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determination was supported by substantial evidence,5 but that the
Commissioner did not sustain her burden at step five of the sequential
process to demonstrate that jobs exists in the national economy which
Marvin can perform. (Id. at 762-92.) As a result of the court’s remand
order, the Appeals Council vacated the November 4, 2011 determination,
and remanded the case to ALJ Elizabeth W. Koennecke. (Id. at 794-97.)
ALJ Koennecke was instructed to offer Marvin the opportunity for a
hearing, take any further action necessary to complete the administrative
record, and issue a new decision. (Id. at 796.) Subsequently, Marvin
requested a hearing and submitted additional evidence, including
additional medical records. (Id. at 930-39.) On November 7, 2014, after
Marvin appeared at another administrative hearing, ALJ Koennecke issued
an unfavorable decision, which became the Commissioner’s final
determination upon the Appeals Council’s denial of review. (Id. at 676729.) This determination included new severity and RFC findings.
(Compare id. at 13, 17, with id. at 683, 691.)
Marvin commenced the present action by filing a complaint on

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“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citation omitted).

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January 20, 2015, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Hummel
issued an R&R recommending that the Commissioner’s decision be
reversed and remanded. (See generally Dkt. No. 23.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
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IV. Discussion
In the R&R, Magistrate Judge Hummel recommended that the case
be remanded for further administrative proceedings that comply with this
court’s March 31, 2014 Memorandum-Decision and Order. (Dkt. No. 23 at
10-20.) Specifically, Judge Hummel concluded that ALJ Koennecke
should not have reconsidered steps one through four of the sequential
evaluation on remand from that order, and, instead, should have limited the
proceedings to obtaining testimony from a vocational expert. (Id. at 19.)
Judge Hummel construed this court’s order as providing “specified limiting
instructions” for the Commissioner to follow on remand. (Id. at 18-19.) In
that same vein, in her brief, Marvin argues that, by “conduct[ing] an entirely
new [five s]tep analysis and [making] an entirely new disability
determination,” ALJ Koennecke failed to comply with this court’s March
2014 remand order, which limited the remand to the discrete issue of the
step five determination. (Dkt. No. 13 at 3-6.)
“The regulation governing agency decisions after remand from
federal court provides that ‘[a]ny issues relating to your claim may be
considered by the [ALJ] whether or not they were raised in the
administrative proceedings leading to the final decision in your case.’”
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Thompson v. Astrue, 583 F. Supp. 2d 472, 474 (S.D.N.Y. 2008) (citing 20
C.F.R. § 404.983). However, the “law of the case doctrine,” which applies
to administrative agencies on remand, “prevents the relitigation of a settled
issue in a case and requires courts to adhere to decisions made in earlier
proceedings.” Brachtel v. Apfel, 132 F.3d 417, 419 (8th Cir. 1997) (internal
quotation marks and citations omitted); see Gladle v. Astrue,
No. 7:12-CV-284, 2013 WL 4543147, at *3 (N.D.N.Y. Aug. 27, 2013).
Further, “district courts have the power to limit the scope of remand by
specifying the actions to be taken by the ALJ.” Thompson, 583 F. Supp.
2d at 475; see Sullivan v. Hudson, 490 U.S. 877, 885 (1989) (“[T]he district
court’s remand order will often include detailed instructions concerning the
scope of the remand. . . . Deviation from the court’s remand order in the
subsequent administrative proceedings is itself legal error, subject to
reversal on further judicial review.”). Based on the foregoing, “in the
absence of limiting instructions or court findings, the Commissioner may
revisit on remand any issues relating to the application for disability
benefits.” Thompson, 583 F. Supp. 2d at 475.
While the court ultimately adopts Magistrate Judge Hummel’s R&R, it
notes that it was not the intent of the court, in its March 2014 order, to
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provide limiting instructions concerning the scope of the remand. In the
future, if the court intends to so limit the Commissioner it will do so
expressly. Nonetheless, because the law of the case doctrine “ordinarily
forecloses relitigation of issues expressly or impliedly decided by [an]
appellate court,” Starbucks Corp. v. Wolfe’s Borough Coffee, Inc., 736 F.3d
198, 208 (2d Cir. 2013) (quoting United States v. Quintieri, 306 F.3d 1217,
1229 (2d Cir. 2002) (internal quotation marks omitted)), on remand, ALJ
Koennecke was not free to reexamine Marvin’s impairments and determine
which were severe and which were not, or render a new RFC
determination, “absent ‘cogent’ and ‘compelling’ reasons such as ‘an
intervening change of controlling law, the availability of new evidence,6 or
the need to correct a clear error or prevent manifest injustice.’” Ali v.
Mukasey, 529 F.3d 478, 490 (2d Cir. 2008) (quoting United States v.
Tenzer, 213 F.3d 34, 39 (2d Cir. 2000)); see, e.g., Bradley v. Colvin, 110 F.
Supp. 3d 429, 440-42 (E.D.N.Y. 2015) (explaining that, because the district
court found that the ALJ’s RFC determination was not supported by

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While ALJ Koennecke considered the new medical evidence submitted by Marvin in
assessing the severity of her impairments and her RFC, neither ALJ Koennecke’s decision or
he Commissioner’s brief, (Dkt. No. 22 at 7), point to any specific new evidence that compelled
ALJ Koennecke to reopen ALJ Ramos’ decision.

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substantial evidence, the law of the case doctrine did not act to bar the
redetermination of the plaintiff’s RFC upon remand); Nettelton v. Astrue,
No. 3:11CV1357, 2013 WL 1390042, at *2 (D. Conn. Apr. 4, 2013)
(“Because the court in [its original determination] remanded the case with
respect to an error on step five of the analysis, it necessarily upheld the
ALJ’s finding at step one that [p]laintiff had not engaged in substantial
gainful activity since” the alleged onset date. “Thus, [that] Order is the law
of the case for the purposes of the substantial gainful activity determination
at step one of the analysis.” (citation omitted)); Calderon v. Astrue, 683 F.
Supp. 2d 273, 277 (E.D.N.Y. 2010) (holding that, where the court reversed
an ALJ’s decision due to a step-five error, it necessarily reached the
conclusion that the step-four determination in favor of the plaintiff was
supported by substantial evidence, and, at that point, that determination
became the law of the case and could not be changed on remand absent
cogent and compelling reasons); Carrillo v. Heckler, 599 F. Supp. 1164,
1168 (S.D.N.Y. 1984) (holding that the ALJ exceeded the scope of the
remand order where he reconsidered the severity of the plaintiff’s
impairments, because the district court implicitly affirmed the ALJ’s original
severity finding when it failed to find that the severity determination was not
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supported by substantial evidence and remanded the action for
consideration of whether the plaintiff could return to her prior work); see
also Nelson v. Astrue, No. 08-cv-01675-REB, 2009 WL 2338113, at *4 (D.
Colo. July 27, 2009) (explaining that, when the district court remanded the
case because the ALJ failed to properly assess the plaintiff’s subjective
complaints of pain, it necessarily relied on the ALJ’s original conclusion
that plaintiff suffered from systemic lupus erythematosus (SLE), which
causes significant neurological consequences, and, therefore, the ALJ was
not free to conclude on remand that SLE was not a severe impairment);
Davis v. Sec’y of Health & Human Servs., 634 F. Supp. 174, 178 (E.D.
Mich. 1986) (holding that an ALJ improperly concluded on remand that the
claimant was capable of medium work when the claimant was initially
found capable of light work, this determination was not challenged, and the
court remanded with instructions that the record be supplemented to
include medical opinions regarding whether the claimant’s alleged nerve
root impairments in his right leg prevented him from performing a wide
range of light work activities).
Accordingly, the court agrees with Judge Hummel that this matter
should be remanded for the Commissioner to address the step five errors
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in ALJ Ramos’ November 2011 decision.
V. Conclusion
ORDERED that Magistrate Judge Christian F. Hummel’s February
16, 2016 Report-Recommendation and Order (Dkt. No. 23) is ADOPTED in
its entirety; and it is further
ORDERED that the decision of the Commissioner is REVERSED and
REMANDED pursuant to sentence four of 42 U.S.C. § 405(g) for
proceedings consistent with this Memorandum-Decision and Order; and it
is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
May 20, 2016
Albany, New York

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