Harrington v. Colvin

Filing 13

ORDER adopting Report and Recommendations re 12 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Dancks' February 25, 2015 Report and Recommendation is ADOPTED in its entirety for the reasons stated therein; and the C ourt further ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 10) is GRANTED; and the Court further ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 11) is DENIED; and the Court further ORDERS tha t the Commissioner's decision denying disability benefits is VACATED and this matter is REMANDED for further proceedings consistent with Magistrate Judge Dancks Report and Recommendation; and the Court further ORDERS that the Clerk shall enter judgment and close this case. Signed by U.S. District Judge Mae A. D'Agostino on 3/19/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
WAYNE S. HARRINGTON,
Plaintiff,
vs.

6:13-cv-01230
(MAD/TWD)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
300 S. State Street
Suite 420
Syracuse, New York 13202
Attorneys for Plaintiff

HOWARD D. OLINKSY, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

VERNON NORWOOD, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Wayne S. Harrington brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c), seeking judicial review of the Commissioner of Social Security's ("Commissioner")
decision to deny his applications for disability insurance benefits ("DIB") and Supplemental
Security Income ("SSI") under the Social Security Act. Plaintiff moves to vacate the
Commissioner’s decision and to remand this matter for further administrative proceedings, and
the Commissioner cross-moves for judgment on the pleadings. See Dkt. Nos. 10, 11. This matter
was referred to United States Magistrate Judge Thérèse Wiley Dancks for a Report and

Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), familiarity with which
is assumed.
Plaintiff protectively filed applications for DIB and SSI benefits on January 11, 2011,
alleging a disability onset date of December 28, 2010. See Dkt. No. 8 at 188-200, 216. On May
25, 2011, Plaintiff's applications were initially denied, and, upon Plaintiff's request, a hearing was
held on February 10, 2012, which was adjourned, and continued on May 11, 2012. See id. at 3473, 94-100. On June 18, 2012, the Administrative Law Judge ("ALJ") issued a decision denying
Plaintiff's claim for benefits, finding that Plaintiff was not disabled within the meaning of the
Social Security Act. See id. at 7-22. Plaintiff timely filed a request for a review of the ALJ's
unfavorable hearing decision. Id. at 30-33. The Appeals Council denied review by letter dated
August 5, 2013, thereby making the ALJ's decision the final determination of the Commissioner.
Id. at 1-6. Plaintiff commenced this action seeking judicial review of the Commissioner's
unfavorable decision. See Dkt. No. 1.
In her February 25, 2015 Report and Recommendation, Magistrate Judge Dancks found
that the ALJ did not properly assess Plaintiff’s credibility related to his subjective symptoms.
After determining that the alleged intensity, persistence, and limiting effects of Plaintiff's
symptoms were not substantiated by the objective evidence, the ALJ erred by failing to continue
the assessment of symptoms using the following regulatory factors: (1) Plaintiff’s daily activities,
(2) the location, duration, frequency, and intensity of Plaintiff’s symptoms, (3) the precipitating
and aggravating factors, (4) the type, dosage, effectiveness, and side effects of any medication
taken to relieve symptoms, (5) the other treatments received to relieve symptoms, (6) any
measures taken by Plaintiff to relieve symptoms, and (7) any other factors concerning Plaintiff’s
functional limitations and restrictions due to symptoms. See 20 C.F.R. §§ 404.1529(c)(3)(i)-(vii);
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416.929(c)(3)(i)-(vii); Dkt. No. 12. Magistrate Judge Dancks recommends that the
Commissioner's decision be vacated and remanded for further consideration of Plaintiff's
subjective complaints.
Magistrate Judge Dancks further found that the ALJ did not give consideration to the
combined effect of Plaintiff's severe and non-severe impairments. See Dkt. No. 12. Also, the
ALJ did not discuss any evidence supporting each of Plaintiff's abilities to lift, push, and pull
when making the RFC determination. See id. Without this information, Magistrate Judge Dancks
was "unable to fathom" the ALJ's rationale determining Plaintiff's RFC, and she recommends that
the Commissioner's decision be vacated and remanded. Neither party objected to Magistrate
Judge Dancks' Report and Recommendation.
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g); Wagner v. Sec'y
of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court must examine the
Administrative Transcript to ascertain whether the correct legal standards were applied and
whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131
(2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial evidence" is
evidence that amounts to "more than a mere scintilla," and it has been defined as "such relevant
evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v.
Perales, 402 U.S. 389, 401 (1971) (citations and internal quotation marks omitted). If supported
by substantial evidence, the Commissioner's finding must be sustained "even where substantial
evidence may support the plaintiff's position and despite that the court's independent analysis of
the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F. Supp. 147, 153
(S.D.N.Y. 1992). In other words, this Court must afford the Commissioner's determination
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considerable deference, and "may not substitute its own judgment for that of the [Commissioner],
even if it might justifiably have reached a different result upon a de novo review." Valente v.
Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).
In reviewing a report and recommendation, a district 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). When a party makes specific objections to a magistrate judge's report, the district
court engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F.
Supp. 2d 301, 307 (N.D.N.Y. 2008) (citation omitted). When a party fails to make specific
objections, the court reviews the magistrate judge's report for clear error. See id.; see also
Gamble v. Barnhart, No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations
omitted). Failure to object timely to any portion of a magistrate judge's report operates as a
waiver of further judicial review of those matters. See Roldan v. Racette, 984 F.2d 85, 89 (2d Cir.
1993) (quoting Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)).
Having carefully reviewed Magistrate Judge Dancks’ Report and Recommendation, the
parties' submissions, and the applicable law, the Court concludes that Magistrate Judge Dancks
correctly determined that the ALJ's assessment of Plaintiff’s credibility was not complete without
evaluating Plaintiff's symptoms in light of the regulatory factors to determine the intensity,
persistence, and limiting effects of Plaintiff's symptoms. Magistrate Judge Dancks also correctly
determined that Plaintiff's RFC was not properly determined where the ALJ did not evaluate the
combined effect of Plaintiff's severe and non-severe impairments and where the ALJ did not
provide support for each of the findings of Plaintiff's physical abilities. As such, the Court finds
that Magistrate Judge Dancks correctly determined that the decision of the Commissioner should
be vacated and the matter be remanded.
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Accordingly, the Court hereby
ORDERS that Magistrate Judge Dancks' February 25, 2015 Report and Recommendation
is ADOPTED in its entirety for the reasons stated therein; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 10) is
GRANTED; and the Court further
ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and the Court further
ORDERS that the Commissioner's decision denying disability benefits is VACATED and
this matter is REMANDED for further proceedings consistent with Magistrate Judge Dancks’
Report and Recommendation; and the Court further
ORDERS that the Clerk shall enter judgment and close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on all parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 19, 2015
Albany, New York

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