Vargas v. Commissioner of Social Security

Filing 21

MEMORANDUM & ORDER adopting 17 Report and Recommendations, denying 12 Motion for Judgment on the Pleadings filed by Carlos Vargas, granting 10 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. For the forgoing reas ons, the Court overrules the above objections to the R&R. To the extent that Plaintiff raises addition issues, these simply rehash arguments already considered and properly rejected by the Magistrate. See Brown, 2006 WL 3851152, at *2. Accordingly, t he Court adopts the R&R in its entirety as thorough, well-reasoned, and not clearly erroneous. plaintiff's cross-motion for judgment on the pleadings (Dkt. 12) is DENIED and Defendant's motion for judgment on the pleadings (Dkt. 10) is GRANTED. The Clerk of the Court is directed to terminate this case. (Signed by Judge Barbara S. Jones on 11/19/2012) (mro)

USDC SONY
DOCUMENT
ELECTRONICALLY FILED

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DOC# ________~~8

DATE FILED:

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_ _ _ __ _

I//I'rll&t~

CARLOS VARGAS,
Plaintiff,
09 Civ. 6606 (BSJ) (DCF)
Memorandum & Order

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security
Defendant.
- - - x
BARBARA S. JONES
UNITED STATES DISTRICT JUDGE

Before the Court are the objections of Plaintiff Carlos
Vargas ("Plaintiff") to the Report and Recommendation ("R&R")
issued by Magistrate Judge Debra C. Freeman. The R&R recommended
that this Court grant the motion for judgment on the pleadings
filed by Defendant Commissioner of Social Security ("Defendant")
and deny Plaintiff's cross-motion for the same. For the reasons
that follow,

the Court overrules Plaintiff's objections and

adopts the R&R in its entirety.
PROCEDURAL BACKGROUND

On September 4, 2007, Plaintiff filed an application for
Supplemental Security Income claiming a disability due to
multiple osteochondromatosis, asthma, and a learning disability.l
See R. 60, 140.) The Social Security Administration ("SSA")

The Court presumes familiarity with the R&R, which sets forth the facts and

procedural history of this case at length. Citations to the administrative

record are indicated by "R. _."

1

~

denied Plaintiff's application on January 16, 2008.

(R. 40-43.)

Plaintiff requested a hearing before an administrative law judge
("ALJ") and later appeared pro se at an administrative hearing
held November 18, 2008.

(R. 24, 44 46.) Following the hearing,

the ALJ issued a Notice of Decision on January 23, 2009, finding
that Plaintiff was not disabled and affirming the SSA's denial
of benefits.

(R. 8-21.)

plaintiff then initiated this action by seeking review of
the ALJ's decision.

(Dkt. 2.) On August 27, 2009, this Court

referred this matter to Judge Freeman.
an Answer on December 7, 2009.

(Dkt. 5.) Defendant filed

(Dkt. 7.) On May 11t 2010, and

June 7, 2010, the parties filed cross-motions for judgments on
the pleadings.

(Dkt. 10, 12.) Defendant contended that the ALJts

determination should be upheld because it was supported by
substantial evidence. Plaintiff t on the other hand t maintained
that the record lacked substantial evidence to support the ALJts
decision.
On November 8 t 2011 t Judge Freeman issued an R&R (Dkt. 17)
recommending that the Court grant Defendant's motion for
judgment on the pleadings and deny Plaintifft s cross motion.
(See R&R at 29.) Plaintiff filed his Objections to the R&R (Dkt.

2

18) on November 22, 2011, and Defendant filed a Response to
those objections on January 4, 2012. 2 (Dkt. 20.)

DISCUSSION
I.

Legal Standard
This Court "may accept, reject, or modify in whole or in

part" findings or recommendations issued by a magistrate judge.
28 U.S.C.

§

636(b) (1).

"Where no objections are filed, or where

the objections are 'merely perfunctory responses, argued in an
attempt to engage the district court in a rehashing of the same
arguments set forth in the original petition, '" a report is
reviewed for clear error. Brown v. Ebert, No. 05-CIV-5579, 2006
WL 3851152, at *2 (S.D.N.Y. Dec. 29, 2006)

(quoting Gardine v.

McGinnis, No. 04-CIV-1819, 2006 WL 3775963, at *4 (S.D.N.Y. Dec.
20, 2006)). The Court reviews de novo the portions of a report
to which objections are filed. 28 U.S.C. § 636(b) (1)

i

see also

United States v. Male Juvenile, 121 F.3d 34, 38 (2d Cir. 1997).

II.

Analysis
When reviewing a decision regarding disability benefits,

this Court is "limited to a determination of whether the
decision is supported by substantial evidence in the record as a
whole."

v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002)

(internal citations and quotations omitted). substantial

2 Defendant's time to respond was extended by an endorsed letter dated

December 5, 2011. (Dkt. 19.)

3

evidence means "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Id.
As an initial matter, the Court has reviewed the findings
and conclusions in R&R and finds them to be thorough, well
reasoned, and not clearly erroneous. Plaintiff objects to the
R&R on the basis that Judge Freeman (1) erred in finding that
the ALJ adequately developed the recordi

(2) erred by concluding

that Plaintiff did not meet the criteria under section 12.05(C)

j

and (3) erroneously relied on the medical-vocational guidelines
in determining that Defendant had shown that Plaintiff could
perform other sedentary work.

(See PI.'s Objections to the

Magistrate Judge's Report and Recommendation ("Objections") at
2, 8, 14.) The Court reviews these conclusions de novo.
A. Development of the Record by the ALJ

First, Plaintiff contends that Judge Freeman failed to
consider his claim that the ALJ did not adequately develop the
record in this case.

(Objections at 2.) Plaintiff objects that

"[o]ther than one conclusory sentence, the Magistrate Judge did
not address this argument./I

(Id.) In fact, however, the R&R

meticulously reviewed the evidence in the record supporting the
ALJ's decision with regard to whether plaintiff's impairment met
the criteria under section 12.05 before reaching this

4

conclusion. 3

See R&R at 19-25.) Only after this review did Judge

Freeman conclude that Uthe ALJ fulfilled his duty to develop the
administrative record and that substantial evidence supports the
ALJ's finding that Plaintiff did not have 'deficits in adaptive
functioning. '"

rd. at 25.)

The Court's own review of record compels the same
conclusion. An ALJ must Uadequately protect a pro se claimant's
rights by ensuring that all of the relevant facts are
sufficiently developed and considered." Cruz v. Sullivan, 912
F.2d 8, 11 (2d Cir. 1990)

(internal citation omitted). However,

the record in this case includes Plaintiff's testimony before
the ALJ (R. 22-38)

i

educational records (R. 74-134)

report (R. 139-46)

i

function report (R. 147-54) i and medical

i

disability

records (R. 166-75). The record also contains reports from Drs.
Barbara Akresh (R. 176-84) and Jyothi Kudakandira (R. 185)

an

i

intelligence test report from Dr. Edward Hoffman (R. 186-89)

i

and a psychiatric review (R. 190-203) and mental residual
functional capacity assessment (R. 204 07) from Dr. E. Kamin.
During the administrative hearing the ALJ adequately
supplemented the record with inquiries concerning Plaintiff's
age, background, abilities, work experience, familial status,
living conditions

l

daily activities, and medical history.

(See

Judge Freeman conducted a similar review of the record in connection with

the ALJ's finding that Plaintiff was capable of performing sedentary work.

(See R&R at 26-28.)

3

5

R. 26-37.) Although Plaintiff argues that the ALJ should have
sought additional information, development of the record beyond
the statutory requirements is within the discretion of the ALJ.
See Snyder v. Barnhart, 323 F. Supp.2d 542, 545 n.3

(S.D.N.Y.

2004). The Court is satisfied that there was ample evidence in
the record to serve as bases for the ALJ's conclusions. Thus,
Plaintiff's objection that the ALJ did not adequately develop
the record in this case has no merit.
B. Application of Section l2.05{C)

Next, Plaintiff contends that Judge Freeman erred by
finding that Plaintiff did not meet the standard under section
12.05(C). The R&R found that Plaintiff did not satisfy the
criteria under section 12.05(C) because "although it is true
that the ALJ never refered [sic] to Section 12.05
refer .

he did

. to Section 12.00 of the listings, an overarching

provision that, inter alia, requires evaluation of the same
'adaptive functioning' criterion at issue [under section
12.05(C)]."

(R&R at 23.)

In reaching this conclusion, Judge

Freeman relied on the fact that "the ALJ made an explicit
finding that Plaintiff 'showed adequate adaptive functioning. '"
(Id. )
Plaintiff objects that Judge Freeman approved the decision
of the ALJ and the Commissioner on different grounds than those
on which they relied, and thus improperly "affirm[ed] an

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administrative action on grounds different from those considered
by the agency.H Burgess v. Astrue, 537 F.3d 117, 131 (2d Cir.

2008)

(citing Melville v. Apfel, 198 F.3d 45, 52 (2d Cir.

1999». This is not, however, a correct reading of the R&R.
Judge Freeman affirmed the ALJ's finding because the ALJ had
found that Plaintiff did not demonstrate inadequate adaptive
functioning - a necessary prerequisite to satisfying the
conditions of section 12.05(C).

(R&R at 23.) Since Plaintiff did

not make this threshold showing, Judge Freeman found that he
could not qualify under section 12.05(C).

(Id.) Where the ALJ's

analysis is sufficiently detailed for the Court to

~determine

whether [the ALJ] made the requisite findings,H an explicit
conclusion is not necessary. Cf. Crowell v. Astrue, No. 08-CIV­
8019, 2011 WL 4863537, at *4 (S.D.N.Y. Oct. 12, 2011); Edwards
v. Astrue, No. 07-CV-898, 2010 WL 3701776, at *4

(N.D.N.Y. Sept.

16, 2010). Contrary to Plaintiff's argument, the magistrate did
not make findings in the first instance; rather, she reached the
correct legal conclusions from the findings that were made by
the ALJ. 4

Plaintiff also argues that his alleged adaptive functioning incapacities
should be viewed as having manifested during his developmental period (i.e.
before Plaintiff had reached the age of twenty-two). (See Objections at 11­
12.) It is unnecessary to consider these arguments because the R&R clearly
states ~it is obvious that, to the extent that Plaintiff suffered from any
disability . . . the disability had manifest [ed] 'before age 22.'" (R&R at 21
(emphasis in original).J

4

7

Plaintiff also objects that his qualifications under
section 12.05(C) were judged under the wrong standard.
Specifically, Plaintiff claims that Judge Freeman incorrectly
applied "B" criteria set forth in section 12.00C. 5 (Objections at
9-10.) Plaintiff is correct that he is not required to satisfy
both paragraph A and paragraph B criteria under section 12.05.
See 20 C.F.R. Pt. 404, Subpt. P, App. I,

§

12.00(A). He is,

however, required to "satisf[y] the diagnostic description in
the introductory paragraph and anyone of the four sets of
criteria [under section 12.05]." Id. In order to satisfy the
diagnostic description, Plaintiff must show that he has
"deficits in adaptive functioning." 20 C.F.R. Pt. 404, Subpt. P,
App. I,

§

12.05. As indicated above, Judge Freeman relied on the

ALJ's "explicit finding that Plaintiff 'showed adequate adaptive
functioning'" to determine that

aintiff did not satisfy the

criteria under section 12.05. 6 (R&R at 23.) Thus, Judge Freeman's

"B" criteria are "impairment-related functional limitations" considered in
conjunction with specific medical findings under all sections except 12.05
and 12.09. 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(A).

5

6 Plaintiff urges that the ALJ and Judge Freeman improperly relied on the
criteria in section 12.05 (D) (1) (4). (Objections at 10.) The R&R recognizes
that the ALJ relied on "four broad functional areas set out in the disability
regulations for evaluating mental disorders . . . includ[ingl activities of
daily living, social functioning, concentration, persistence or pace, and
episodes of decompensation" to find that Plaintiff did not have deficits in
adaptive functioning. (R&R at 23 n.B (internal citation omitted).) Similar
criteria are found in section 12.05(D). However, section 12.05(C) applies to
disorders not "severe enough" to preclude all "gainful activity" and requires
an evaluation of "the degree of functional limitation" imposed by any
impairments to determine whether an impairment is "severe." 20 C.F.R. Pt.
404, Subpt. P, App. 1, § 12.00(A). The "broad functional areas ll considered
here by the ALJ are the appropriate criteria for evaluating severity as
defined in 20 C.F.R. Pt. 404, Subpt. P, App. 1, § 12.00(C). Given that these

8

conclusion is based not on Plaintiff's inability to satisfy "B"
criteria, but on his inability to satisfy the diagnostic
description. 7
C. Reliance on the Medical-Vocational Guidelines

Finally, Plaintiff contends that Judge Freeman erroneously
relied on the medical-vocational guidelines in determining that
Plaintiff could perform other sedentary work.

(Objections at

16.) Judge Freeman concluded that reliance on the guidelines was
proper and that additional vocational testimony was not required
because the ALJ found that Plaintiff's "nonexertional
limitations were 'minor' or 'minimal'."

(See R&R at 28.)

Plaintiff objects that his mental retardation is a significant
nonexertional impairment that necessitated additional testimony
from a vocational expert.

(Objections at 15-16.)

The medical-vocational guidelines "take[] into account the
claimant's residual functional capacity in conjunction with
[his] age, education, and work experience." Zorilla v. Chater,
915 F. Supp. 662, 667 (S.D.N.Y. 1996). However, reliance on
criteria address the same "adaptive functioning" term and the SSA itself has
yet to provide a definition, see
v.
No. 09-CIV-2123, 2010 WL
889550, at *5 (E.D.N.Y. Mar. 8, 2010 , the Court cannot conclude that
consideration of these approved areas for definitional purposes was improper.
7 Plaintiff argues that he does satisfy the diagnostic description because Dr.
Hoffman "diagnosed [Plaintiff] as suffering from mental retardation."
(Objections at 10.) The ALJ considered this as well as other conflicting
evidence before concluding that Plaintiff had not shown a deficit in adaptive
functioning. (R. 18-19.) The existence of contrary evidence in the record
does not compel this Court to reverse a reasoned decision made by the ALJ.
See Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). Judge Freeman found
this conclusion was supported by substantial evidence and the Court agrees.
(See R&R at 23-25.)

9

these guidelines is inappropriate where a nonexertional
impairment "significantly" limits the claimant's working
capacity. Bapp v. Bowen, 802 F.2d 601, 605 (2d. Cir. 1986)
The ALJ did not find that Plaintiff's range of work was so
diminished as to require additional vocational testimony. Judge
Freeman found that this conclusion was supported by substantial
evidence.

(See R&R at 27-28.)

"[T]he mere existence of a

nonexertional impairment does not automatically require the
production of a vocational expert nor preclude reliance on the
guidelines. 1t Bapp, 802 F.2d at 603. Whether additional testimony
is required must instead be "determined on a case by case
basis.1t Id. at 605.
Judge Freeman concluded that the ALJ in this case
determined that the Plaintiff did have a severe nonexertional
impairment, but that this impairment was due to the "Plaintiff's
bone condition, in combination with his mild mental retardation
and asthma." s (R&R at 27-28 (emphasis in original).) Plaintiff's
objection that Judge Freeman made this finding "without
reference to the record" is unsupported. 9 (Objections at 16.) In

8

Severity of an impairment may be due to a combination of impairments. See 20
§ 416.920(a) (4) ( i i ) .

C.F.R.

In fact, Plaintiff argues that "the ALJ found that Vargas' mental
retardation and asthma were severe impairments," but it is Plaintiff's
assertions that depart from the record. (Objections at 16). The ALJ
explicitly found that "[tlhe claimant's medically determinable mental
impairment of borderline mental deficiency and mentally deficient range of
intelligence does not cause more than minimal limitation . . . and is
therefore nonsevere." (R. 13.)

9

10

fact, the R&R specifically references several portions of the
record on which this conclusion is based. Io

See R&R at 27-28.)

The Court agrees that substantial evidence supports the ALJ's
finding. As such, it was within the ALJ's discretion to require
additional vocational testimony. Because the ALJ and Judge
Freeman were justified in relying on the guidelines, see BapPI
802 F.2d at 603, this objection is overruled. 11
CONCLUSION

For the forgoing reasons, the Court overrules the above
objections to the R&R. To the extent that Plaintiff raises
addition issues, these simply rehash arguments already
considered and properly rejected by the Magistrate. See Brown,
2006 WL 3851152, at *2. Accordingly, the Court adopts the R&R in
its entirety as thorough

I

well-reasoned, and not clearly

erroneous. plaintiff's cross-motion for judgment on the
pleadings (Dkt. 12) is DENIED and Defendant's motion for
judgment on the pleadings (Dkt. 10) is GRANTED. The Clerk of the
Court is directed to terminate this case.
The most obvious, of course, is the citation to the ALJ's actual finding
that "[t]he claimant has the following severe impairment: [t]he claimant has
mUltiple osteochondromatosis and mild mental retardation. Asthma." (R. 13
(emphasis added).) The R&R also cites a relevant portion of the "Applicable
Law" section of the ALJ's opinion. (R&R at 28 n.10.) Finally, the R&R reviews
the evidence that underlies the ALJ's decision. (See R&R at 28.)
10

Plaintiff also argues that the ALJ failed to make specific findings with
regard to his asthma. (Objections at 17.) The ALJ did, however, note
Plaintiff's significant smoking habits (R. 17-18) and review Dr. Akresh's
opinion that Plaintiff's asthma imposed only "mild limitations" (R. 18)
before considering Plaintiff's asthma in combination with his other
nonexertional limitions. (See R. 13.) The Court is not persuaded that
additional, more specific findings were necessary.

11

11

SO ORDERED:

ITED STATES DISTRICT JUDGE

Dated:

New York, New York
November 19, 2012

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