Jones v. Astrue

Filing 16

ADOPTION OF REPORT AND RECOMMENDATION for 8 Motion for Judgment on the Pleadings filed by Jeanette Jones, 6 Motion to Dismiss filed by Michael J. Astrue, 13 Report and Recommendations. Having conducted an independent de novo review of the speci fically objected-to portions of the Report and having reviewed for clear error the portions of the Report without objections, it is ORDERED as follows: 1. The Report and Recommendation of United States Magistrate Judge Frank Maas dated July 15, 2011 be and the same hereby is APPROVED, ADOPTED, and RATIFIED AS MODIFIED HEREIN by the Court; 2. Defendant's Motion for Judgment on the Pleadings is DENIED, and Plaintiff's Motion for Judgment on the Pleadings is GRANTED IN PART; 3. The case i s to be REMANDED to the Commissioner for further consideration of the credibility of Plaintiff's complaints regarding the intensity, persistence, and limiting effects of her symptoms. The Commissioner is to use the Curry standard when undergoing the Step Five analysis; and 4. The Clerk of the Court is directed to CLOSE the docket in this matter. (Signed by Judge Deborah A. Batts on 9/28/2012) (lmb)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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JEANETTE JONE S ,

Plaintiff,
09 Civ. 5577 (DAB)
ADOPTION OF REPORT
AND RECOMMENDATION

v.
MICHAEL J. ATRUE, Commissioner of
the Social Security Administration,
Defendant.
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DEBORAH A. BATTS, United States District Judge.
This matter is before the Court upon a Report and
Recommendation (UReport") of United States Magistrate Judge Frank
Maas, which was filed July 15, 2011.

The Report recommends that

Plaintiff's Motion for Judgment on the Pleadings be GRANTED IN
PART, Defendant's Motion for Judgment on the Pleadings be DENIED,
and the case be REMANDED for further consideration of the
credibility of Plaintiff's complaints regarding the intensity,
persistence, and limiting effects of her symptoms.

(Report at

1.)
The facts in this matter are meticulously detailed in Judge
Maas's Report, and they will not be fully restated here.
Plaintiff has submitted timely Objections to the Report, only
objecting to the final recommendation that the case be remanded
for further consideration. l

1 Defendant filed an unhelpful and untimely Response over
seven weeks after the filing deadline; Plaintiff filed her

I. OBJECTIONS TO THE REPORT AND RECOMMENDATION
A. Standard of Review
1. Standard of Review of a Report and Recommendation
"Within fourteen days after being served with a copy [of a
Magistrate Judge's Report and Recommendation], a party may serve
and file specific written objections to the proposed findings and
recommendations."
636(b} (l) (C).

FED. R. CIV. P. 72 (b) (2); accord 28 U. S. C.

§

The court may adopt those portions of the report

to which no timely objection has been made, as long as there is
no clear error on the face of the record.

Wilds v. United Parcel

Serv., Inc., 262 F.Supp.2d 163, 169 (S.D.N.Y. 2003).
A district court must review de novo "those portions of the
report or specified proposed findings or recommendations to which
objection is made."

28 U.S.C.

§

636(b} (1) (C).

"To the extent,

however, that the party makes only conclusory or general
arguments, or simply reiterates the original arguments, the Court
will review the Report strictly for clear error."

Indymac Bank,

F.S.B. v. Nat'l Settlement Agency, Inc., No. 07-CV-6865, 2008 WL
4810043, at *1 (S.D.N.Y. Nov. 3, 2008); Ortiz v. Barkley, 558 F.
Supp. 2d 444, 451 (S.D.N.Y. 2008).
After conducting the appropriate levels of review, the Court

Objection on July 29, 2011 and Defendant filed his Response on
September 28, 2011. See FED.R.CIV.P. 72 (b) (2) .
2

may accept, reject, or modify, in whole or in part, the findings

o• • e~ommenQ~tion~

made

~y

the Magistrate.

28 U.S.C. §

636 (b) (1) (c) .
2. Standard for Review of an ALJ's Decision
The Court will "set aside an ALJ's decision only where it is
based upon legal error or is not supported by substantial
evidence.

II

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999)

(quoting Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998».
"Substantial evidence . . . is more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion."

Rosa, 168 F.3d at 77

(quoting

Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996».
To be considered "disabled" under the Social Security Act,
"a claimant must demonstrate an 'inability 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. '"
F.3d at 77 (quoting 42 U.S.C.

§

423(d) (1) (A».

Rosa, 168

An "individual's

impairment must be 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."
3

Id.

(quoting

42 U.S.C.

§

423 (d) (2) (A}).

The Second Circuit has implemented the Social Security
Administration's five-step procedure for evaluating disability
claims under 20 C.F.R.

§

404.1520 in the following manner:

First, the Commissioner considers whether the claimant
is currently engaged in substantial gainful activity.
If he is not, the Commissioner next considers whether
the claimant has a "severe impairment" which
significantly limits his physical or mental ability to
do basic work activities. If the claimant suffers such
an impairment, the third inquiry is whether, based
solely on medical evidence, the claimant has an
impairment which is listed in Appendix 1 of the
regulations. If the claimant has such an impairment,
the Commissioner will consider him disabled without
considering vocational factors such as age, education,
and work experience . . . Assuming the claimant does
not have a listed impairment, the fourth inquiry is
whether, despite the claimant's severe impairment, he
has the residual functional capacity to perform his
past work. Finally, if the claimant is unable to
perform his past work, the Commissioner then determines
whether there is other work which the claimant could
perform.
Rosa, 168 F.3d at 77 (quoting Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982)}.
The claimant bears the burden of proof as to the first four
steps.

See, e.g., Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir.

1998).

If the claimant meets the burden of proving that he

cannot return to his past work, the burden shifts to the

4

Commissioner at the final step.2

Id.

B. Plaintiff's Objection to the Recommendation for Remand
Plaintiff Jeanette Jones ("Jones") timely filed objections
the Magistrate Judge Maas's Report.

Jones did not object to

Judge Maas's first two recommendations,

(PI.'s Obj. at 1) so the

Court will review them only for clear error.

Jones did object to

the recommendation that the case be remanded to the ALJ for
further proceedings,

(PI.'s Obj. at 1) which will therefore be

reviewed de novo.
Jones argues that, instead of remanding the case for further
proceedings, this Court reverse Defendant Michael J. Astrue's
("Astrue" or "Commissioner") determination, order a benefits
award, and remand solely for a calculation of the amount of
benefits.

(PI.'s Obj. at 1.)

In particular, Jones agrees that

Judge Maas correctly concluded the ALJ's credibility
determination lacked explanation, which was a reversible error. 3
(PI.'s Obj. at 2.) Jones asserts, however, that Judge Maas then
made two errors:

(1) that Judge Maas incorrectly declined to

2 Parties argue about the burden the Commissioner bears at
this step; it will be analyzed below.

Since there was no objection to Judge Maas's
recommendation that the ALJ erred in its lack of explanation
regarding its credibility determination, the Court will review
that component of the recommendation for clear error.
3

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evaluate the evidence related to the ALJ's credibility
determination and {2} that Judge Maas incorrectly concluded the
credibility determination occurred at the ALJ's Step Four
analysis,4 opining that the ALJ made the credibility
determination during Step Five.

(Pl. 's Ob j. at 2 - 4, 6.)

Accordingly, Jones argues, Judge Maas incorrectly remanded the
matter for a factual investigation at the Step Four level of
inquiry, arguing the appropriate step for remand, if any, was
Step Five.

(PI.'s Obj. at 2-3.) The significance of remanding at

Step Five instead of Step Four, Jones argues, is that the burden
of proof at Step Five shifts from the plaintiff to the
Commission.

(PI.'s Obj. at 3.) Because of that burden shift,

Jones claims the Commission failed to prove that other jobs exist
which Jones can perform, meaning that "all the evidence leads to
the conclusion that [she] is disabled."

(PI.'s Obj. at 3, 4.)

(1) Declining to Review the Evidence or Make a
Determination as to Plaintiff's Credibility
The regulations set forth a two-step process to evaluate a
claimant's testimony, and thereby credibility, regarding her
symptoms.

Raja v. Astrue, No. 11-CV-3490, 2012 WL 1887131, at *6

4 An ALJ makes a credibility determination while assessing a
person's residual functional capacity.
See 20 C.F.R. §§
404.1520(a) (4) (iv), (e-f); 404.1560(b) (2).
6

(S.D.N.Y. May 23, 2012).

the claimant

ba~

"First, the ALJ must consider whether

Q meg~cQlly-gete.m~n~Dle

impairment [thatJ could

reasonably be expected to produce the pain or symptoms alleged by
the claimant."

Sarchese v. Barnhart, No. 00-CV-9621, 2003 WL

470572, at *10 (S.D.N.Y. Jan. 21, 2003).

Then, if the claimant

makes allegations that are not substantiated by objective medical
evidence, the ALJ must make a finding about the claimant's
credibility.

Id. at *10.

If the ALJ determines the claimant is not credible, the ALJ
must explain its rationale "with sufficient specificity to permit
intelligible plenary review of the record."

Williams ex reI.

Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1998)

(citing

Carroll v. Secr'y of Health & Human Servs., 705 F .2d 638, 643
(2d Cir. 1983)}; Raja, 2012 WL 1887131, at *7.

In making the

credibility determination, the ALJ must consider, not only the
objective medical evidence, but also seven factors:
1. The individual's daily activities; 2. The location,
duration, frequency, and intensity of the individual's
pain or other symptoms; 3. Factors that precipitate and
aggravate the symptoms; 4. The type, dosage,
effectiveness, and side effects of any medication the
individual takes or has taken to alleviate pain or
other symptoms; 5. Treatment, other than medication,
the individual receives or has received for relief of
pain or other symptoms; 6. Any measures other than
treatment the individual uses or has used to relieve
pain or other symptoms . . . ; and 7. Any other factors
concerning the individual's functional limitations and
restrictions due to pain or other symptoms.
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SSR 96-7p, 1996 WL 374186, at *3 (July 2, 1996)
§§

(citing 20 C.F.R.

404.1529(c), 416.929(c». Additionally, an ALJ cannot

disregard a claimant's statements about pain "solely because they
are not substantiated by objective medical evidence."
1996 WL 374186, at *1.

SSR 96-7p,

Although a reviewing court will afford

the ALJ's determination great deference, a "credibility
determination will be set aside if it is not set forth with
sufficient specificity to enable a reviewing court to decide
whether it is supported by substantial evidence."

Raja, 2012 WL

1887131, at *6 (internal citations and quotations omitted).

In

the instant case, the Court finds no clear error in Judge Maas's
determination that the ALJ's assessment of Plaintiff's
credibility was inadequate. s
Plaintiff Jones argues that Judge Maas erred in not
evaluating the evidence regarding her credibility. However, where
"conclusory determinations . . . leave a reviewing court no basis
to determine whether the proper factors were considered," the
proper procedure is "to remand this case so that the ALJ can
provide her reasoning in a manner" that enables review.

Lugo v.

5 Judge Maas notes that the ALJ "at best" made "two
references to Jones' credibility."
(Report at 48.) Likewise,
this Court str uggles to find refere nces to Plaintif f's
credibility.

8

Apfel, 20 F. Supp. 2d 662, 664 (S.D.N.Y. 1998); Williams, 859

F.2a Qt 290-91,

Jone5 argues that all evidence points to the

fact that she is credible, but the ALJ claims to have found
contradictions.

And, given the sparse detail by the ALJ, this

Court cannot conduct a meaningful review to determine whether she
is credible. 6

Accordingly, this Court ADOPTS Judge Maas's

recommendation and REMANDS this case to the Commissioner for
further proceedings to determine Plaintiff's credibility
regarding the intensity, persistence, and limiting effects of her
symptoms.

(2) Remanding for Step Four Analysis
Jones asserts, because neither party objected to the ALJ's
Step Four analysis and determination, that the Step Four analysis
was not even before Judge Maas for review. Jones argues that the
only portion of the sequential evaluation process that was to be

6 It is true that the Court has the "power to enter .
. . a
judgment affirming, modifying, or reversing the decision of the
Commissioner . . . with or without remanding the cause for a
rehearing." 42 U.S.C. § 405{g). Thus, remand solely for
calculation of benefits is proper "when the record provides
persuasive proof of disability and a remand for further
evidentiary proceedings would serve no purpose." Parker v.
Harris, 626 F.2d 225, 235 (2d Cir. 1980); Mortise v. Astrue, 713
F. Supp. 2d 111, 128 (N.D.N.Y. 2010) (same).
Upon searching the
record, this Court can find no persuasive proof of Plaintiff's
credibility.

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reviewed by Judge Maas was Step Five of the process.

In part,

JonC5 i5 correcti neither Party

ultimate

to the ALJ's

o~jectea

determinations of the first four steps of the sequential
analysis.

Judge Maas, therefore, was incorrect in remanding the

matter for Step Four analysis.
However, in the Step Four analysis of whether Jones could
perform her prior work, the ALJ considered her uresidual
functional capacity and [her] past relevant work," which includes
a credibility determination.

20 C.F.R.

§

404.1520{a) (4) (iv).

The fifth step also considers her same "residual functional
capacity."

20 C.F.R.

§

404.1520 (a) (4) (v)

{UAt the fifth and last

step, we consider our assessment of your residual functional
capacity and your age, education, and work experience to see if
you can make an adjustment to other work."}.

Accordingly, the

ALJ made its credibility and residual functional capacity
determination during its Step Four analysis, which would also be
used in its Step Five analysis.

Based on the present record, and

because this Court remands to the Commissioner for a
determination as to Plaintiff's credibility, this Court cannot
say with certainty that Jones is disabled and entitled to
benefits.

Accordingly, the case should be remanded to the

Commissioner for a further hearing as to Plaintiff's residual
functional capacity after determining whether Plaintiff is
10

credible.

After determining Plaintiff's residual functional

cQPQc1ty, the Commissioner shall proceed to Step Five, not to
Step Four as recommended by the Report.

(3) Commissioner's Burden at Step Five Analysis
Plaintiff argues the Commissioner bears the burden as
articulated by the Second Circuit in Curry v. Apfel, 209 F.3d 117
(2d Cir. 2000), while Defendant asserts that the SSA regulations
promulgated in 2003 have limited the Step 5 burden.

20 C.F.R.

§

404.1560(c) (2); see Poupore v. Astrue, 566 F.3d 303 (2d Cir.
2009).

Under Curry, the Commissioner must prove that the

claimant can perform sedentary work.?
However, 20 C.F.R.

§

Curry, 209 F.3d at 123.

404.1560(c) (2) abrogated Curry's standard in

cases where the onset of disability was after the regulation's
promulgation in 2003.

Poupore, 566 F.3d at 306.

Under the

? The Second Circuit in Curry explains: "Although sedentary
work is the least rigorous of the five categories of work
recognized by SSA regulations, by its very nature sedentary work
requires a person to sit for long periods of time even though
standing and walking are occasionally required. According to the
SSA, sedentary work generally involves up to two hours of
standing or walking and six hours of sitting in an eight-hour
work day.
Sedentary work also involves lifting no more than 10
pounds at a time and occasionally lifting or carrying articles
like docket files, ledgers, and small tools.n Curry, 209 F.3d at
123 (internal quotations, citations, and modifications omitted).

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regulation, "the Commissioner need only show that there is work
in the national economy that the claimant can do; he need not
provide additional evidence of the claimant's residual functional
capacity."

Id.

(citing 20 C.F.R.

§

404.1560(c) (2».

The Second Circuit has repeatedly declined to reach the
issue as to whether the Curry standard still holds in cases where
the disability onset was prior to the promulgation.

See Poupore,

566 F.3d at 306 ("[W]e decline to reach the issue."); see also
Mancuso v. Astrue, 361 Fed. Appx. 176, 177 (2d Cir. 2010)
left this question open .
the issue here.").

.

("We

. and need not conclusively decide

Yet, district courts within this Circuit have

repeatedly explained that the Curry standard applies when the
onset of disability occurred before the promulgation of 20 C.F.R.
§

404.1560(c) (2).

See Lupo v. Comm'r of Soc. Sec., 07-CV-4660,

2011 WL 1316105, at *2 (E.D.N.Y. Apr. 4, 2011); see also Brown v.
Comm'r of Soc. Sec., 06-CV-3174, 2011 WL 1004696, at *3 (E.D.N.Y.
Mar. 18 , 2 0 11) ;

No. 09-CV-3030, 2010 WL

3325205, at *6 (E.D.N.Y. 2010).

Plaintiff applied for disability benefits on October 14,
1997, well before the promulgation of 20 C.F.R.

§

404.1560(c) (2).

Thus, when this case is heard on remand, the Commissioner is to
apply the Curry standard.

Additionally, this Court is mindful of

the extensive time Jones has endured while awaiting a final
12

determination of whether she is entitled to disability. The
Commissioner is instructed to make every effort to expedite the
rehearing process upon remand.

III. UNOPPOSED RECOMMENDATIONS
Judge Maas's Report makes two unopposed recommendations:
that the Commissioner's motion for judgment on the pleadings be
denied and that Jones's cross-motion for judgment on the
pleadings be granted in part. Having found no clear error on the
record with the remainder of the Report, the Court adopts the two
unopposed recommendations.

IV. CONCLUSION
Having conducted an independent de novo review of the
specifically objected-to portions of the Report and having
reviewed for clear error the portions of the Report without
objections, it is ORDERED as follows:
1. The Report and Recommendation of United States Magistrate
Judge Frank Maas dated July 15, 2011.

be and the same

hereby is APPROVED, ADOPTED, and RATIFIED AS MODIFIED HEREIN
by the Court;

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2. Defendant's Motion for Judgment on the Pleadings is
DENIED, and Plaintiff's Motion for Judgment on the Pleadings
is GRANTED IN PART;
3. The case is to be REMANDED to the Commissioner for
further consideration of the credibility of Plaintiff's
complaints regarding the intensity, persistence, and
limiting effects of her symptoms.

The Commissioner is to

use the Curry standard when undergoing the Step Five
analysis; and
4. The Clerk of the Court is directed to CLOSE the docket in
this matter.

SO ORDERED.

Dated:

New York, New York

\~hK ~8 , 2012

DEBORAH A. BATTS

United States District Judge

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