Rapaport v. Commissioner of Social Security

Filing 24

OPINION AND ORDER for 17 Motion for Judgment on the Pleadings filed by Commissioner of Social Security, 21 Report and Recommendations, 14 Motion for Judgment on the Pleadings filed by Aaron Rapaport. I have reviewed the remainder of Magistrate Judge Francis's thorough Report for clear error and find none. Therefore, I adopt the Report in its entirety. Plaintiffs motion for judgment on the pleadings, (Doc. 14), is DENIED, and the Commissioner's cross-motion for judgment on the pleadings, (Doc. 17), is GRANTED. The Clerk of Court is respectfully directed to terminate the open motions and close the case. SO ORDERED. (Signed by Judge Vernon S. Broderick on 6/26/2018) (rro)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
AARON RAPAPORT,
:
:
Plaintiff,
:
:
-v:
:
COMMISSIONER OF SOCIAL SECURITY, :
:
Defendant. :
:
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6/26/2018

16-CV-2617 (VSB) (JCF)
OPINION AND ORDER

Appearances:
Lewis B. Insler
Law Office of Lewis B. Insler
White Plains, New York
Counsel for Plaintiff
Amanda F. Parsels
Allison Rovner
United States Attorney’s Office
New York, New York
Counsel for Defendant
VERNON S. BRODERICK, United States District Judge:
Plaintiff Aaron Rapaport brings this action pursuant to § 1631(c)(3) of the Social Security
Act (the “SSA”), 42 U.S.C. § 1383(c)(3), seeking judicial review of a denial by the
Commissioner of Social Security (the “Commissioner”) of his application for Supplemental
Security Income (“SSI”). Plaintiff and Defendant cross-moved for judgment on the pleadings
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. On April 5, 2017, Magistrate
Judge James C. Francis IV issued a detailed and thorough Report and Recommendation
(“Report” or “R&R”) recommending that Plaintiff’s motion for judgment on the pleadings be
denied and the Commissioner’s cross-motion for judgment on the pleadings be granted.

(Doc. 21.) Before me is Plaintiff’s objection to the Report and Defendant’s response to the
objection. For the reasons discussed below, I adopt the Report in full.
Factual Background and Procedural History
I assume the parties’ familiarity with the facts and record of prior proceedings and restate
briefly only the information necessary to explain my decision.1
Plaintiff was born on September 22, 1986 at 32 weeks gestation. (R&R 1–2.)2
Plaintiff’s claim of disability relates to certain developmental and psychiatric issues, including
anxiety, depression, panic attacks, adjustment disorder, Asperger’s syndrome, and other related
conditions. (R&R 2, 12, 17.) Plaintiff graduated from high school in 2004, completed college
in 2008, and received a master’s degree in library science in 2011. (R&R 2, 12.) From 2012
until 2013, Plaintiff worked part-time as a library assistant at the New City Jewish Center until
his job was terminated due to the Center’s financial difficulties. (R&R 2, 12.) Plaintiff has not
worked since 2013. (R&R 2.)
On November 30, 2012, Plaintiff filed his application for SSI benefits. (R&R 12.) On
June 14, 2013, Plaintiff’s application was denied. (R&R 12.) Plaintiff requested a hearing
before an Administrative Law Judge (“ALJ”), which was held on June 26, 2014 before ALJ
Robert Gonzalez. (R&R 12.) On September 15, 2014, ALJ Gonzalez issued a decision finding
that although Plaintiff had some mental limitations, he retained the residual functional capacity
(“RFC”) to work at all physical exertional levels, to understand, remember, and carry out simple
instructions, to deal with changes in a routine work setting, and to occasionally interact with

1

A more detailed description of the underlying facts and procedural history is contained in Magistrate Judge
Francis’s Report and Recommendation, dated April 5, 2017. (Doc. 21.)
2

“R&R” refers to Magistrate Judge Francis’s Report and Recommendation, dated April 5, 2017. (Doc. 21.)

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supervisors, coworkers, and the public, and was therefore not disabled under the SSA.
(R. 9, 15, 19.)3 On February 10, 2016, the Appeals Council denied Plaintiff’s request for review
of the ALJ’s decision, making the ALJ’s determination the final decision of the Commissioner in
this case. (R&R 13.)
Plaintiff filed this action on April 7, 2016. (R&R 13.) I referred the case to Magistrate
Judge Francis on June 20, 2016. (Doc. 10.) Magistrate Judge Francis issued his Report on April
5, 2017. (Doc. 21.) On April 10, 2017, Plaintiff filed his objection to the Report. (Doc. 22.) On
April 24, 2017, the Commissioner filed a response to Plaintiff’s Objection. (Doc. 23.)
Legal Standards
A.

Review of the Magistrate Judge’s Report

A district court reviewing a magistrate judge’s report and recommendation “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). A party may make objections to a report and recommendation
“[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ.
P. 72(b)(2); see also 28 U.S.C. § 636(b)(1). The district court “may adopt those portions of the
report to which no ‘specific, written objection’ is made, as long as the factual and legal bases
supporting the findings and conclusions set forth in those sections are not clearly erroneous or
contrary to law.” Adams v. N.Y. State Dep’t of Educ., 855 F. Supp. 2d 205, 206 (S.D.N.Y. 2012)
(quoting Fed. R. Civ. P. 72(b)). “If a party timely objects to any portion of a magistrate judge’s
report and recommendation, the district court must make a de novo determination of those
portions of the report or specified proposed findings or recommendations to which objection is

3

“R.” refers to the Certified Administrative Record of proceedings relating to this case, submitted by the
Commissioner on May 17, 2016. (Doc. 13.)

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made.” Bush v. Colvin, No. 15 Civ. 2062 (LGS) (DF), 2017 WL 1493689, at *4 (S.D.N.Y. Apr.
26, 2017) (quoting United States v. Romano, 794 F.3d 317, 340 (2d Cir. 2015)). “Even where
exercising de novo review, a district court ‘need not specifically articulate its reasons for
rejecting a party’s objections or for adopting a magistrate judge’s report and recommendation in
its entirety.’” Id. (quoting Morris v. Local 804, Int’l Bd. of Teamsters, 167 F. App’x 230, 232
(2d Cir. 2006) (summary order)).
A party’s objection “must be specific and clearly aimed at particular findings in the
R&R.” Bussey v. Rock, No. 12-CV-8267 (NSR) (JCM), 2016 WL 7189847, at *2 (S.D.N.Y.
Dec. 8, 2016) (internal quotation marks omitted). “[T]he court will review the R&R strictly for
clear error when a party makes only conclusory or general objections, or simply reiterates the
original arguments.” Id. (internal quotation marks omitted); see also Ortiz v. Barkley, 558 F.
Supp. 2d 444, 451 (S.D.N.Y. 2008) (noting that reviewing court “is only obliged to review the
Report for clear error” where “objections largely reiterate the arguments made to, and rejected
by” the magistrate judge); Vega v. Artuz, No. 97Civ.3775LTSJCF, 2002 WL 31174466, at *1
(S.D.N.Y. Sept. 30, 2002) (“[O]bjections 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
petition will not suffice to invoke de novo review of the magistrate’s recommendations.”).
B.

Review of the Commissioner’s Decision

In reviewing a social security claim, “it is not [the court’s] function to determine de novo
whether plaintiff is disabled.” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Pratts
v. Chater, 94 F.3d 34, 37 (2d Cir. 1996)); see also Riordan v. Barnhart, No. 06 CIV 4773 AKH,
2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007). Instead, a reviewing court considers merely
whether the correct legal standards were applied and whether “substantial evidence” supports the

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decision. Burgess v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008); see also 42 U.S.C. § 405(a)
(stating that, on judicial review, “[t]he findings of the Commissioner of Social Security as to any
fact, if supported by substantial evidence, shall be conclusive”). “Substantial evidence means
more than a mere scintilla” and “means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Burgess, 537 F.3d at 127 (internal quotation marks
omitted). It is “a very deferential standard of review—even more so than the ‘clearly erroneous’
standard.” Brault v. Comm’r of Soc. Sec., 683 F.3d 443, 448 (2d Cir. 2012) (citing Dickinson v.
Zurko, 527 U.S. 150, 153 (1999)). “The substantial evidence standard means once an ALJ finds
facts, [a reviewing court] can reject those facts only if a reasonable factfinder would have to
conclude otherwise.” Id. (internal quotation marks omitted).
C.

Disability Standard

To be considered disabled under the SSA, a claimant must show an inability “to engage
in any substantial gainful activity by reason of any medically determinable physical or mental
impairment,” which has lasted or can be expected to last for at least 12 months, that is “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.” 42
U.S.C. § 423(d)(1)(A), (2)(A). The Commissioner has established a five-step evaluation process
to determine whether an individual is disabled. See 20 C.F.R. §§ 404.1520, 416.920. The fivestep process is as follows:
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

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experience; the [Commissioner] presumes that a claimant who is afflicted with a
“listed” impairment is unable to perform substantial gainful activity. 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. [T]he claimant bears the burden of the proof as to the first four
steps, while the [Commissioner] must prove the final one.
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982).
Discussion
In his objection to the R&R, Plaintiff asserts that (1) the ALJ erred by considering his
success in college and graduate school and his ability to work part time in evaluating Plaintiff’s
RFC and in weighing certain opinion evidence, (2) the ALJ erroneously failed to obtain
testimony from a vocational expert, and (3) certain evidence presented for the first time to the
Appeals Council was improperly ignored. (See generally Pl.’s Obj.)4 These arguments are not
addressed to legal or factual issues that Magistrate Judge Francis failed to consider in his Report,
since Plaintiff raised each of these arguments in his memorandum in support of judgment on the
pleadings. (See Pl.’s Mem. 13, 15–16, 21–23.)5 Magistrate Judge Francis rejected each of these
arguments in his R&R. (See generally R&R.) I address each of Plaintiff’s objections in turn
below.
A.

Opinion Evidence and Substantial Evidence in Support of RFC

Plaintiff argues that the ALJ erred by considering Plaintiff’s “success” in college and
graduate school and as a part time librarian in evaluating Plaintiff’s RFC and weighing the

4

“Pl.’s Obj.” refers to Plaintiff’s Objection to Magistrate’s Report and Recommendation, dated April 10, 2017.
(Doc. 22.)

5

“Pl.’s Mem.” refers to the Memorandum of Law in Support of Plaintiff’s Motion for Judgment on the Pleadings,
dated October 8, 2016. (Doc. 15.)

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opinion of Dr. Judka, Plaintiff’s psychiatrist, who opined that Plaintiff was incapable of selfsustaining employment due to his developmental and psychological disorders. (Pl.’s Obj. 1–2.)
Magistrate Judge Francis concluded in his Report that “the ALJ applied the treating physician
rule correctly” and “gave good reasons for not granting great or controlling weight to the
opinion[] of Dr. Judka,” due to its inconsistency with Plaintiff’s educational success in college,
his vocational success as a librarian, and his activities of daily living. (R&R 22–24.) I agree.
The “treating physician rule” provides that a treating physician’s opinion “is deemed
controlling only if it is well-supported by clinical evidence.” Schaal, 134 F.3d at 504. In other
words, an ALJ need not afford great or controlling weight to a treating physician when
substantial evidence in support is lacking. See Halloran v. Barnhart, 362 F.3d 28, 32–33 (2d
Cir. 2004). ALJ Gonzalez properly assessed Dr. Judka’s opinion in light of the record as a whole
and provided sufficient reasons for not granting significant weight to the opinion, including
describing the inconsistency of the opinion with Plaintiff’s educational and vocational success.
See, e.g., Petagine v. Colvin, No. 13-cv-6005, 2015 WL 8362575, at *7 (S.D.N.Y. Dec. 7, 2015)
(“Given Plaintiff’s daily life as a student, medical evidence from other sources, and Plaintiff’s
own statements at the hearing, it would be misguided for the Court to find that the ALJ was not
supported by substantial evidence in giving little weight to [the therapist’s] opinion.”); see
generally Klodzinski v. Astrue, 274 F. App’x 72, 73 (2d Cir. 2008) (summary order) (upholding
ALJ’s decision giving little weight to opinion of plaintiff’s treating physician where opinion was
contradicted by substantial evidence in the record). Plaintiff does not point to evidence
Magistrate Judge Francis failed to consider where Dr. Judka justified his opinion in light of
Plaintiff’s prior educational and vocational successes.
Moreover, when making an RFC determination, the ALJ considers a claimant’s physical

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abilities, mental abilities, and symptomatology, including pain and other limitations that could
interfere with work activities on a regular and continuing basis. See Butler v. Colvin, No. 14CV-2325 (SN), 2015 WL 3606278, at *20 (S.D.N.Y. June 8, 2015); 20 C.F.R. § 404.1545(a).
An RFC finding will be upheld when it is supported by “substantial evidence” in the record.
Goodale v. Astrue, 32 F. Supp. 3d 345, 356 (N.D.N.Y. 2012). ALJ Gonzalez did not err in
considering Plaintiff’s educational history as substantial evidence to determine that Plaintiff had
the requisite RFC to perform a full range of work at all exertional levels. See, e.g., Evans v.
Comm’r of Soc. Sec., 110 F. Supp. 3d 518, 535 (S.D.N.Y. 2015) (finding that “ALJ could
properly use [plaintiff’s] academic pursuit as a factor the ALJ may consider in making his
determination as to her mental abilities”); Walters v. Astrue, No. 10-CV-01038T, 2013 WL
1755727, at *8 (W.D.N.Y. Apr. 24, 2013) (opining that ALJ properly considered that plaintiff’s
“mental impairments did not prevent him from successfully going to school and obtaining an
associate’s degree”); Goodale, 32 F. Supp. 3d at 355 (noting that plaintiff’s “ability to attend and
successfully complete a college course of study suggests that his fatigue did not result in a
marked limitation”).
In addition, the ALJ properly considered Plaintiff’s prior work experience even though it
was performed part time. In particular, Plaintiff’s testimony regarding his ability to perform at
his part time job—including getting along with co-workers, researching, organizing, and
assisting library visitors, (R. 42–43)—was probative in assessing Plaintiff’s RFC. See Johnston
v. Colvin, No. 13cv2710-VEC-FM, 2015 WL 657774, at *9 (S.D.N.Y. Feb. 13, 2015)
(“[Plaintiff’s] ability to work part-time, however, remains evidence that the ALJ may consider in
determining the severity of [his] impairment.”), report and recommendation adopted, 2015 WL
1266895 (S.D.N.Y. Mar. 18, 2015). While Plaintiff may have weighed the evidence in the

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record differently than the ALJ, or drawn different factual inferences from the evidence, that is
not a basis for reversal. See, e.g., Krull v. Colvin, 669 F. App’x 31, 32 (2d Cir. 2016) (summary
order) (“Plaintiff’s disagreement is with the ALJ’s weighing of the evidence, but the deferential
standard of review prevents us from reweighing it.”).
Thus, Plaintiff fails to show any error in the R&R’s conclusion that the ALJ identified
good reasons for providing minimal weight to the opinion of Dr. Judka and that substantial
evidence supported the ALJ’s RFC finding.
B.

Vocational Expert Testimony

Plaintiff next argues that ALJ Gonzalez erred by not obtaining the opinion of a vocational
expert regarding whether there were jobs in the national economy that Plaintiff could perform.
(Pl.’s Obj. 1.) Magistrate Judge Francis correctly determined that the ALJ’s decision not to
solicit a vocational expert was not error. (R&R 20–22.)
At step five of the sequential disability analysis, the Commissioner can usually meet her
burden to establish that, if a plaintiff is unable to perform his past work, there is other work
which he could perform by relying on the Medical–Vocational guidelines, commonly referred to
as “the Grids.” See Baldwin v. Astrue, No. 07 Civ. 6958(RJH)(MHD), 2009 WL 4931363, at
*20 (S.D.N.Y. Dec. 21, 2009). However, “[i]f a claimant has nonexertional limitations that
‘significantly limit the range of work permitted by his exertional limitations,’ the ALJ is required
to consult with a vocational expert” and exclusive reliance on the Grids is inappropriate. Zabala
v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Bapp v. Bowen, 802 F.2d 601, 605 (2d Cir.
1986)). A nonexertional impairment will “significantly limit” a claimant’s range of work “when
it causes an additional loss of work capacity beyond a negligible one or, in other words, one that
so narrows a claimant’s possible range of work as to deprive him of a meaningful employment

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opportunity.” Id. at 411 (internal quotation marks omitted).
Here, the ALJ found that Plaintiff’s nonexertional limitations, including the ability to
“understand, remember, and carry out simple instructions” and “occasionally interact with
supervisors, coworkers, and the public,” did not preclude him from performing basic work
activities. (R. 15.) The ALJ further observed that Plaintiff’s nonexertional limitations “have
little or no effect on the occupational base of unskilled work at all exertional levels.” (R. 19.)
Courts routinely uphold an ALJ’s use of the Grids to evaluate limitations similar to those found
by ALJ Gonzalez, including restrictions to simple work and limited social interaction. See, e.g.,
Lewis v. Colvin, 548 F. App’x 675, 678 (2d Cir. 2013) (summary order) (concluding that ALJ’s
reliance on the Grids “to determine that jobs existed in the economy that [plaintiff] could
perform” did not constitute error); Zabala, 595 F.3d at 410–11 (finding that ALJ’s use of the
Grids to conclude that plaintiff’s nonexertional limitations did not result in an additional loss of
work capacity was permissible where plaintiff’s mental condition did not limit her ability to
perform unskilled work, including carrying out simple instructions); Laboy v. Comm’r of Soc.
Sec., No. 13-CV-8590 (KNF), 2015 WL 507895, at *2 (S.D.N.Y. Feb. 5, 2015) (using the Grids
to evaluate RFC limited to “simple one/two-step jobs requiring only occasional interaction with
others”).
Accordingly, because there is substantial evidence that Plaintiff’s nonexertional
impairments did not “significantly limit the range of work permitted by [his] exertional
limitations,” the ALJ was not required to consult a vocational expert. See Zabala, 595 F.3d at
410–11.

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C.

New Evidence

Finally, Plaintiff contends that the Appeals Council erred by not considering the newly
submitted opinion of Dr. Sheryl Statman, a psychologist. The record before the ALJ included a
2008 psychological report and intelligence test performed by Dr. David Koplon, who stated that
Plaintiff “should be successful in the field of Library Science research which may focus on his
cognitive and scholastic strengths and minimize close personal relationships.” (R. 367–71.)
After the ALJ issued his decision, Plaintiff underwent another neuropsychological evaluation
with intelligence testing, performed by Dr. Statman. (R. 477–86.) Magistrate Judge Francis
correctly found that Dr. Statman’s evaluation was cumulative of evidence already in the record
and therefore the Appeals Council did not err in declining to consider it. (R&R 26–28.)
According to the SSA, a reviewing court “may at any time order additional evidence to
be taken before the Commissioner of Social Security, but only upon a showing that there is new
evidence which is material and that there is good cause for the failure to incorporate such
evidence into the record in a prior proceeding.” 42 U.S.C. § 405(g). Evidence is “new” if it is
“not merely cumulative of what is already in the record.” Harris-Batten v. Comm’r of Soc. Sec.,
No. 05-CV-7188 (KMK)(LMS), 2012 WL 414292, at *6 (S.D.N.Y. Feb. 9, 2012) (citing Lisa v.
Sec’y of Dep’t of Health & Human Servs., 940 F.2d 40, 43 (2d Cir. 1991)). New evidence is
“material” if (i) it is “relevant to the claimant’s condition during the time period for which
benefits were denied”; (ii) it is “probative”; and (iii) there is “a reasonable possibility that the
new evidence would have influenced the Commissioner to decide claimant’s application
differently.” Pollard v. Halter, 377 F.3d 183, 193 (2d Cir. 2004) (internal quotation marks
omitted).
Because nothing in Dr. Statman’s opinion constituted new and material evidence, it was

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proper for the Appeals Council not to consider it. See, e.g., Diaz v. Colvin, No. 14 Civ.
2277(KPF), 2015 WL 4402941, at *17 (S.D.N.Y. July 19, 2015) (affirming decision not to
consider new evidence because “Plaintiff’s ‘new evidence’ [was] merely cumulative of what was
already on the record before the ALJ”). As noted in the R&R, Dr. Statman’s report expressly
stated that Plaintiff’s “overall profile remains consistent.” (R&R 29; see also R. 482.) Although
Plaintiff argues that Dr. Statman’s report was not cumulative because it explained why Plaintiff
was capable of completing college and graduate school but was unable to perform unskilled
work, (Pl.’s Obj. 2), the types of memory and attention deficits identified by Dr. Statman—
including “significant limitations in all areas of memory” and “significant attention deficits”—
were already documented in the record, (R&R 29; R. 480–83). Dr. Statman’s report even
concludes that Plaintiff is an “excellent candidate for some basic pre-vocational training, job
coaching onsite, and placement in a position com[mensurate] with his academic skills,” and that
“[p]art time work in a bookstore, library, museum, art center, etc.” would be appropriate, and
that his “goal should be one year of active competitive employment.” (R. 482.)
In light of the foregoing, the Appeals Council properly declined to consider the “new
evidence” proffered by Plaintiff.
Conclusion
I have reviewed the remainder of Magistrate Judge Francis’s thorough Report for clear
error and find none. Therefore, I adopt the Report in its entirety. Plaintiff’s motion for judgment
on the pleadings, (Doc. 14), is DENIED, and the Commissioner’s cross-motion for judgment on
the pleadings, (Doc. 17), is GRANTED.

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The Clerk of Court is respectfully directed to terminate the open motions and close the
case.
SO ORDERED.
Dated: June 26, 2018
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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