Totten v. Astrue

Filing 30

ORDER adopting 13 Motion for Judgment on the Pleadings filed by Michael J. Astrue, denying 15 Motion for Judgment on the Pleadings filed by Jennifer A. Totten, denying 19 Report and Recommendations. For the reasons stated above, this Court con curs with the Report and Recommendation of Magistrate Judge Kevin Nathaniel Fox, with one exception: this Court finds that the ALJ's conclusion that Plaintiff had at least a high school education was supported by substantial evidence. Accordingl y, Defendant's motion for judgment on the pleadings (Docket Entry No. 13) is denied, and Plaintiff's motion for judgment on the pleadings (Docket Entry No. 15) is also denied. This case is hereby remanded to the Commissioner for further development of the record and reconsideration of Plaintiff's disability claim. (Signed by Judge Richard Owen on 12/19/2012) (mro)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

DATE FILED: IJ-/J-v / ()... ­

JENNIFER A. TOTTEN,
Plaintiff,
10 Civ. 01410 (RO)
v.

MICHAEL J. ASTRUE, Commissioner of Social
Security,
Defendant

ORDER

OWEN, District Judge:
Plaintiff Jennifer Totten ("Plaintiff' or "Totten") brings this action seeking judicial
review of the final determination of the Commissioner of Social Security (the "Commissioner"
or "Defendant") finding that Plaintiff was not entitled to benefits under the Social Security Act's
("SSA" or the "Act") Federal Old-Age, Survivors, and Disability Insurance Benefits ("OASDI")
program, 42 U.S.C. §§ 401-434, as amended, and the Supplemental Security Income for Aged,
Blind, and Disabled ("SSI"), 42 U.S.c. §§ 1381-1383f, as amended.
Both Defendant and Plaintiff moved for judgment on the pleadings under Federal Rule of
Civil Procedure 12(c). This Court concurs with the Report and Recommendation of Magistrate
Judge Kevin Nathaniel Fox (the "Report"). Accordingly, the parties' motions for judgment on
the pleadings are denied and this case is hereby remanded to the Commissioner for further
development of the record and reconsideration.

BACKGROUND
The factual background of this action is provided at length in the Report in "medical
evidence" and "non-medical evidence" sections and will not be repeated in detail here.
Plaintiff applied for disability insurance benefits in September, 2007. Plaintiffs
application was denied on March 3, 2008, at which time Plaintiff requested a hearing before an
Administrative Law Judge CAL],,), which was held on June 10,2009.
The ALJ issued a decision on September 11, 2009, finding that Plaintiff was not disabled within
the meaning of the Act. Plaintiff requested review of the ALl's decision before the SSA's Office
of Disability Adjudication and Review. On December 23,2009, this request was denied, and the
ALl's decision became the final decision of the Commissioner.
Plaintiff filed this action on February 22, 2010, alleging that the ALJ erred in denying
benefits (Docket Entry No.2.) The Commissioner answered on August 6, 2010 (Docket Entry
No. 12) and thereafter filed a motion for Judgment on the Pleadings. (Docket Entry No. 13.)
Plaintiff cross-moved for judgment on the pleadings on September 7,2010 (Docket Entry No.
15).

Magistrate Judge Fox issued the Report and Recommendation on March 16,2011 in
which he recommended that this case be remanded to the Commissioner. (Docket Entry No. 19.)
Plaintiff filed objections to the Report pursuant to Federal Rule of Civil Procedure 28 U.S.C. §
636(b)(1) and Federal Rule of Civil Procedure neb) (Docket Entry Nos. 22-23), as did
Defendant (Docket Entry No. 24), and Plaintiff filed a reply (Docket Entry No. 26.) This case
was thereafter transferred to this Court. (Docket Entry No. 27.)

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DISCUSSION
A. Standard of Review
United States Magistrate Judges hear dispositive motions and make proposed findings of
fact and recommendations, generally in the form of a Report and Recommendation. 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).
A party may file "specific written objections," Fed R. Civ. P. n(b), to a Magistrate
Judge's proposed findings and recommendations, and in that case, the district court has an
obligation to make a de novo determination as to those portions of the Report and
Recommendation to which objections were made. 28 U.S.C. § 636(b)(l); First Union Mortgage

Corp., v. Smith, 229 F .3d 992, 995 (10th Cir. 2000). A district court judge, in making such
determination, has discretion in the weight placed on proposed findings and recommendations
and may afford a degree of deference to the Report and Recommendation. See United States v.

Raddatz, 447 U.S. 667,676 (1980). Objections to a Report and Recommendation are to be
"specific and are to address only those portions of the proposed findings to which the party
objects." Camardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380,
381-82 (W.D.N.Y. 1992). Objections that 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
[papers] will not suffice to invoke de novo review." See Vega v. Artuz, No. 97 Civ. 3775, 2002
WL 31174466, at *1, 2002 U.S. Dist. LEXIS 18270 (S.D.N.Y. Sept. 30,2002).
Where no timely objection has been made by either party, a district court need only find
that "there is no clear error on the face of the record" in order to accept the Report and

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Recommendation. Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). In the event a
party's objections are conclusory or general, or simply reiterate original arguments, the district
court also reviews the Report and Recommendation for clear error.
The Social Security Act defines the term "disability" as the "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." 42 U.S.C. § 423(d)(1)(A). A person will
be found disabled only if it is determined that his "impairments are 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." 42 U.S.C. § 423(d)(2)(A).
Any individual may appeal from a final decision of the Commissioner of Social Security
to a United States District Court. 42 U.S.c. § 405(g). A reviewing court limits its inquiry to a
review of the administrative record to determine whether there is substantial evidence supporting
the Commissioner's decision and whether the con'ect legal standard was applied. See Machadio
v. Apfel, 276 F.3d 103, 108 (2d Cif. 2002); see 42 U.S.c. § 405(g). Accordingly, it is not the role
of reviewing courts to make de novo decisions on disability determinations nor to substitute its
own judgment, but rather to consider the record as a whole in assessing whether the
Commissioner's conclusion is supported by enough "relevant evidence as a reasonable mind
might accept as adequate" to support that conclusion. Green-Younger v. Barnhart, 335 F.3d 99,
106 (2d Cir. 2003).
As such, an ALI!s decision will be set aside "only where it is based upon legal error or is
not supported by substantial evidence." Balsamo v. Chater, 142 F.3d 75,79 (2d Cir.1998). Upon

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review, a court may "enter, upon the pleadings and transcript of the record, a judgment
affirming, modifYing, or reversing the decision of the Commissioner of Social Security, with or
without remanding the cause for a rehearing." Butts v. Barnhart, 388 F.3d 19377,384 (2d
Cir.2004).

B. Disability Determination
In evaluating a disability claim, regulations issued pursuant to the Act set forth a five-step
process that the Commissioner must follow. See 20 C.F.R. § 404.l520(a)(4).
First, the Commissioner will consider whether the claimant is engaged in "substantial
gainful activity." !d. at § 404. I 520(a)(4)(i),(b). Ifthe claimant is so engaged, then the
Commissioner will find that the claimant is not disabled. Id. Second, the
Commissioner considers the medical severity of the claimant's impairments. Id. at §
404.1 520(a)(4)(ii). The claimant's impairment will not be deemed severe "[i]f[he or she] do[es]
not have any impairment or combination of impairments which significantly limits [his or her]
physical or mental ability to do basic work activities." Id. at § 404.1520(c). Third, ifit is found
that the claimant's impairments are severe, the Commissioner will determine if the claimant has
an impairment that meets or equals one of the impairments presumed severe enough to render
one disabled, listed in Appendix I to Part 404, Subpart P of the Social Security Regulations. See

id. at § 404.1520(a)(4)(iii),(d). If the claimant's impairments are not on the list, the
Commissioner considers all the relevant medical and other evidence and decides the claimant's
residual functional capacity. See id. at § 404.1520( e). Then, the Commissioner proceeds to the
fourth step to determine whether the claimant can do his or her past relevant work. See id. at §
404.1S20(a)(4)(iv),( e )-(f). Finally, if it is found that the claimant cannot do his or her past
relevant work, the Commissioner will consider the claimant's residual functional capacity, age,

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education, and work experience to see ifhe or she can make an adjustment to other work. See

id. at § 404. 1520(a)(4)(v),(g).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico
v. Callahan, 134 F .3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an
early step of the analysis that the claimant is not disabled, he or she need not proceed with the
remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). Ifthe fifth step is
necessary, the burden shifts to the Commissioner to show that the claimant is capable of other
work. DeChirico, 134 F .3d at 1180 (citation omitted).
The ALJ determined that Plaintiff was not disabled from June 1,2006 through September
11,2009, tbe date of the decision. Plaintiff asserts that the ALl's decision is not supported by
substantial evidence on the following bases: 1) the ALJ failed to combine Plaintiffs
impairments; 2) the ALJ improperly did not give controlling weight to the treating physician's
opinion, failed to clarify evidence from him, and failed to substantiate the failure to give the
treating physician controlling or significant weight, and in doing so, the ALJ improperly
substituted his own judgment related to Plaintiff s impairments, contrary to 20 C.F.R. §
404.1 527(d); 3) the ALJ did not adequately explain why Plaintiffs impairments did not meet the
listing of impairments; 4) the ALJ misapplied vocational guidelines; 5) the ALJ improperly
assessed Plaintiff s credibility; and 6) the ALJ failed to employ a vocational expert.
The ALJ determined, under the first two steps under 20 C.F.R. § 404. 1520(a)(4) that
Plaintiff had not engaged in substantial gainful activity since the onset of her alleged disability
and that Plaintiff suffered from severe impairments of obesity, bipolar disorder, substance abuse,
and back impairment.

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Related to step three, the Report finds that the Plaintiff had not sufficiently demonstrated
that the ALl failed to consider the extent of Plaintiff's exertionallimitations in standing and
walking, and that the ALl's findings in this regard were supported by substantial evidence in the
record. To this extent, the Report found that the ALl had properly considered the effect of
Plaintiff's obesity on other impainnents, and that Plaintiff's argument that the ALl did not
combine the effects of Plaintiff's impainnents was without merit.
The Report finds that the ALl failed to adequately demonstrate the reasons for not giving
the opinion of Plaintiff's treating physician controlling weight. The Report also finds that the
ALl did not provide enough infonnation under the regulations related to assessing the opinion of
Plaintiff's treating physician in the event that opinion is contradicted by other medical evidence.
If the ALl finds that a treating medical source's opinion on the claimaint is well­
supported by "medically accepted clinical and laboratory diagnostic techniques and is not
inconsistent with the other substantial evidence" in the record, the ALl is to give it controlling
weight. 20 C.F.R. §§ 404. 1527(d)(2), 416.927(d)(d). In the event the treating source's opinion
is not given controlling weight, the ALl is to apply the following factors: 1) the length of the
treatment relationship and frequency of examination; 2) the nature and extent of the treatment
relationship; 3) the support for an explanation of the opinion; and 4) any other supporting or
contradicting factors. See id. Failure on the part of the ALl to provide "good reasons for not
crediting the opinion ofa claimant's treating physician is a ground for remand." See Burgess v.

Astrue, 537 F.3d 117, 129-30 (2d Cir. 2008).
Specifically, the Report finds that the ALl's opinion does not indicate that he considered
aspects of Dr. Emmanuel's opinion, including the length of Plaintiff's relationship with Dr.
Emmanuel and the frequency and nature of the treatment relationship. The Report finds that the

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ALl's decision fails to explain the factors he considered in assessing how much weight to give to
Dr. Emmanuel's opinion and similarly does not adequately explain his reasons for rejecting that
opinion. The Report also finds that the AU failed to address an internal inconsistency in one of
Dr. Emmanuel's reports, specifically of June 2009, as well as the inconsistency between Dr.
Emmanuel's opinion and that of Dr. Halpern, and that the ALJ failed to seek additional
information that could have been used to clarify these inconsistencies.
The Commissioner objects to the Report, arguing that the ALJ demonstrated that he
considered reports of Dr. Emmanuel in the form of notes from September, October, and
November, 2007 and that the ALJ properly considered various other factors including prior
statements made by Plaintiff.
After reviewing the record in light of the Report and the parties' objections, this Court
concurs with the Report's finding that the ALJ did not sufficiently support the failure to give
controlling weight to Plaintiffs treating physician
The Report found that the ALJ sufficiently explained the findings that Plaintiffs
impairments do not medically equal the listing impairments. This Court concurs with the
Report's finding. The Report also found that the ALJ's findings in assessing Plaintiffs
credibility were within his discretion in light of the full record. Credibility findings made by an
ALJ are entitled to deference by a reviewing court. See Tejada v. Apfel, 167 F.3d 770, 775-76
(2d Cir. 1999) (stating that the ALJ may decide to discredit a claimant's subjective complaints
about impairment); see also Aponte v. Sec y, Dep 't ofHealth & Human Servs., 728 F.2d 588,
591 (2d Cir. 1984) (stating that it is the role of the Commissioner and not the reviewing court to
assesses the credibility of the claimant and other witnesses, and such assessments shall not be
disturbed by a reviewing court as long as they are supported by substantial evidence).

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Magistrate ludge Fox properly deferred to the ALl's credibility determinations related to
subjective evidence of pain experienced by the Plaintiff, and the Court finds no reason to upset
those findings.
With regard to the fourth step, the Report finds that the ALl erred with respect to findings
on Plaintiffs residual functional capacity. Specifically, the Report states that the ALl was
incorrect in not performing a function-by-function assessment of some of the tasks Plaintiff has
to perform. The Report also found that the AL] failed to discuss some functions entirely and
improperly did not inquire about Plaintiff s prior work experiences. The Report also found that
the AL] failed to separately address Plaintiffs nonexertional functions.
Defendant argues that the ALl was proper in not finding additional limitations because
such limitations are unsupported by the record and that the function-by-function assessment was
properly substantiated. Defendant also asserts that any failure by the ALl to compare Plaintiffs
residual functional capacity more specifically with Plaintiff s past work was harmless.
The Report explains that because the ALl determined at step four that Plaintiff was not
disabled, he did not proceed to step five of the analysis. The Report also finds that the record
contains conflicting information regarding the level of Plaintiffs education, and that the ALl's
finding that Plaintiffhas "at least a high school education" is not based on substantial evidence.
Defendant asserts that the record contains substantial evidence supporting the ALl's finding that
plaintiff had earned a general equivalency diploma ("GED") and that under the Commissioner's
regulations, a GED is functionally equivalent to a high school diploma.
This Court holds that the ALl's finding that Plaintiff had "at least a high school
education" was based on substantial evidence. The record contains sufficient evidence to
conclude that Plaintiff earned a GED in 1997. In addition, the SSA' s Program Operations

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Manual System ("POMS") indicates that a GED is considered equivalent to a high school
education. See DI 25001.001, Medical-Vocational Quick Reference Guide and DI 25015.005,
Age as a Vocational Factor (stating that a GED certificate is considered in the category of
"[fJormal schooling completed at a level of 12th grade and above" and that "[pJossession of a
[GEDJ is generally not an additional adversity as it is comparable to a high school education.")
Accordingly, this Court finds that the ALl's finding that Plaintiff had at least a high
school education was supported by substantial evidence.
CONCLUSION
For the reasons stated above, this Court concurs with the Report and Recommendation of
Magistrate Judge Kevin Nathaniel Fox, with one exception: this Court finds that the ALl's
conclusion that Plaintiff had at least a high school education was supported by substantial
evidence.
Accordingly, Defendant's motion for judgment on the pleadings (Docket Entry No. 13) is
denied, and Plaintiffs motion for judgment on the pleadings (Docket Entry No. 15) is also
denied. This case is hereby remanded to the Commissioner for further development of the record
and reconsideration of Plaintiff s disability claim.

SO ORDERED.
December

ll-'

2012

RICHARD OWEN
UNITED STATES DISTRICT JUDGE

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