Howe v. Astrue
ORDER ADOPTING REPORT AND RECOMMENDATIONS for 23 Report and Recommendations, 19 Motion for Judgment on the Pleadings filed by Michael J. Astrue. In accordance with Magistrate Judge Netburn's Report and Recommendation of July 16, 2013, and in light of the substantial evidence supporting the ALJ's denial of SSI or disability to Plaintiff, the Commissioner's motion for judgment on the pleadings is GRANTED. Additionally, the court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this order will not be taken in good faith; accordingly, in forma pauperis status is denied for purpose of an appeal. The Clerk of Court is directed to close the motion at docket entry number 19 and to close the case. (Signed by Judge J. Paul Oetken on 8/26/2013) (ja)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC •._ - - -- -
KIM RONNETTE HOWE,
12 Civ. 6955 (JPO)(SN)
CAROL YN W. COLVIN,
Commissioner of Social Security.
J. PAUL OETKEN, District Judge.
Pro se plaintiff Kim Ronnette Howe brings this action pursuant to § 205(g) of the Social
Security Act ("the Act"), 42 U.S.C. § 405(g), seeking review of a final detennination by the
Commissioner of the Social Security Administration (the "Commissioner"), which affinned a
decision by an Administrative Law Judge ("ALl") on January 5, 2012. That decision held that
Plaintiff was not entitled to disability insurance benefits or Supplemental Security Income
("SSI"). The Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure, and Plaintiff failed to oppose that motion. After reviewing the
administrative record and the parties' submissions, Magistrate Judge Sarah Netburn issued a
Report and Reconunendation, recommending that the Conunissioner's motion be granted. The
Court adopts Judge Netbum's thorough Report and Recommendation in its entirety.
Standard of Review
In reviewing a magistrate judge's report and reconunendation, 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)(l)(C). Where a magistrate judge provides notice to the
parties in a report and recommendation that any objections must be provided within a certain
COPIES MAILED TO
PRO SE PARTY 0ltAYe! ~
period, and no such objections are filed-as is the case here-the district court will review the
magistrate's findings for clear error. See Wolff v. Town ofMy. Pleasant, No. 06 Civ. 3865
(CS)(LMS), 2009 WL 1468620, at * 1 (S.D.N.Y. May 26,2009) ("The district court may adopt
those portions of a report and recommendation to which no objections have been made, as long
as no clear error is apparent from the face of the record." (citing cases)); accord Mott v. IBM, No.
10 Civ. 4933 (JFB)(WDW), 2011 WL 3847176, at *1 (E.D.N.Y. Aug. 30,2011) ("Where clear
notice has been given of the consequences of failure to object, and there are no objections, the
Court may adopt the report and recommendation without de novo review." (citing cases)). In
summary, "[i]t does not appear that Congress intended to require district court review of a
magistrate's factual or legal conclusions, under a de novo or any other standard, when neither
party objects to those findings." Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 88 L.Ed.2d
Magistrate Judge Netburn found that the Administrative Law Judge properly gathered
"substantial evidence" that Howe was not disabled under the Act, and therefore was not entitled
to disability benefit insurance benefits or SSI. (R & R at 1; See Ventura v. Barnhart, No. 04 Civ.
9018,2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) ("If substantial evidence supports the
Commissioner's decisions, then it must be upheld, even if substantial evidence also supports the
contrary result.")) A claimant is disabled under the Act if he or she demonstrates 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." 42 U.S.C. § 423( d)(1 )(A).
Determinable physical or mental impairments "result from anatomical, physiological, or
psychological abnormalities," and "are demonstrable by medically acceptable clinical and
laboratory diagnostic technicians." 42 U.S.C. § 423(d)(3). These abnormalities must be "of
such severity that [he or she] is not only unable to do [his or her] previous work but cannot,
considering [his or her] 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).
Under the authority of the Act, determining disability involves a five-step sequential
analysis. See 20 C.F.R. § § 404.1520, 416.920. First, the claimant must demonstrate that he or
she does not currently have gainful employment. See Janisnski v. Barnhart, 341 F.3d 182, 183
84 (2d Cir. 2003) (citation omitted). Second, the claimant must prove that he or she is inflicted
with a severe impairment that "significantly limits [his or her] physical or mental ability to do
basic work activities." Jd. Third, the claimant must show that he or she has a disability that
would automatically qualify him or her for disability insurance or SSI. Jd. Fourth, the claimant
must show that he or she is incapable of performing work. Jd. Finally, if and only if the
previous four steps are satisfied, the burden then shifts to the Commissioner to prove that the
claimant cannot perform alternative employment in the national economy. Jd.
Howe appears to challenge the ALl's conclusion that (1) she had the residual functional
capacity ("RFC") to perform work, and (2) at step five, that significant employment existed for
her in the national economy. (R&R at 16.) Despite Howe's contentions otherwise, Judge
Netburn found that the ALJ had satisfactorily considered and dismissed these claims. (Jd. at 29.)
This Court agrees.
Regarding Howe's RFC, the ALJ cited the medical opinions of Howe's treating and
consulting physicians, who found that she could perform sedentary work. (Jd. at 21.) Based on
these assessments, the ALJ detailed the applicable evidence regarding Howe's potential
disabilities, and explained why this established that she could work certain sedentary jobs. (Id. at
22.) Thus, the "ALl's detennination of Howe's RFC was supported by the overall medical
record, which consistently" did not show disability. (Id. at 23).
Regarding step five, the ALJ cited various indicators that Howe could potentially find
employment in the larger national economy. (Id. at 27.) Here the ALJ considered Howe's (1)
RFC; (2) age; (3) education; (4) work experience; (5) physical and psychological analyses; and
(6) own testimony. (Id. at 27, 29.) Having evaluated these factors, the Commission established
"that suitable work in significant numbers existed that Howe could perfonn." (Id. at 28.)
Judge Netbum concluded her report by outlining that the parties had a right to object
within 14 days of its issuance. (Id. at 30.) The Report was issued on July 16,2013, and no
objections followed. Judge Netbum further recommended that the Court certify, pursuant to 28
U.S.C. § 1915(a)(3), that any appeal from its order not be taken in good faith, and thus informa
pauperis status be denied for the purpose of an appeal. (Id. at 30 (citing Coppedge v. United
Slales, 369 U.S. 438, 444-45 (1962». Given Judge Netburn's comprehensive analysis, the Court
adopts her Report and Recommendation in its entirety.
In accordance with Magistrate Judge Netbum's Report and Recommendation of July 16,
2013, and in light of the substantial evidence supporting the ALl's denial of SSI or disability to
Plaintiff, the Commissioner's motion for judgment on the pleadings is GRANTED.
Additionally, the court certifies, pursuant to 28 U.S.C. 1915(a)(3), that any appeal from this
order will not be taken in good faith; accordingly, in forma pauperis status is denied for purpose
of an appeal.
The Clerk of Court is directed to close the motion at docket entry number 19 and to close
Dated: New York, New York
J. PAUL OETKEN
United States District Judge
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