Rodriguez v. Commissioner of Social Security
Filing
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ORDER adopting 24 Report and Recommendations, 15 Motion for Judgment on the Pleadings filed by Commissioner of Social Security. Magistrate Judge Fox's R & R (Dkt. No. 24) is adopted in its entirety, and Defendant's motion for judgment on the pleadings is granted. The Clerk of Court is directed to terminate the motion (Dkt. No. 15) and to close this case. (Signed by Judge Paul G. Gardephe on 6/20/2020) (mro) Transmission to Orders and Judgments Clerk for processing.
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CARLOS MIGUEL RODRIGUEZ,
Plaintiff,
ORDER
18 Civ. 1742 (PGG) (KNF)
- against COMMISSIONER OF SOCIAL SECURITY
ADMINISTRATION,
Defendant.
PAUL G. GARDEPHE, U.S.D.J.:
Plaintiff Miguel Rodriguez filed the Complaint in this action on February 26,
2018. (Cmplt. (Dkt. No. 1)) Rodriguez seeks judicial review, pursuant to “[S]ection 205(g)
and/or [S]ection 1631(c)(3) of the Social Security Act, as amended, 42 U.S.C. § 405(g) and/or
§ 1383(c)(3),” of a final decision of the Commissioner of Social Security denying his application
for disability insurance benefits. (Id. at 1)
PROCEDURAL HISTORY
On March 5, 2018, this Court referred the case to Magistrate Judge Kevin
Nathaniel Fox for a Report and Recommendation (“R & R”). (See Order of Reference (Dkt. No.
6))
On June 26, 2019, Judge Fox ordered the parties to submit a status letter as “the
administrative record has not been filed” and “no motion(s) has been made as contemplated by
the Standing Order of the court.” (June 26, 2019 Order (Dkt. No. 9)) Defendant filed the
administrative record on July 31, 2019. (Dkt. No. 14)
On September 27, 2019, Defendant moved for judgment on the pleadings, arguing
that the Court should affirm the Commissioner’s decision as it “is supported by substantial
evidence of record.” (Def. Br. (Dkt. No. 16) at 3; see also Mot. (Dkt. No. 15)) Defendant
argues, inter alia, that “the evidence generally does not support the loss of functioning alleged by
Plaintiff during the adjudicated period, i.e., March 1, 2014, through September 30, 2014”; “the
[Administrative Law Judge (“ALJ”)] properly accorded good weight to [testifying expert
physician] Dr. Greenberg’s opinion on the grounds that Dr. Greenberg had reviewed Plaintiff’s
entire medical record, heard Plaintiff testify, and rendered an opinion that was consistent with the
record on the whole”; “[t]he ALJ properly accorded little weight to Dr. Greenfield’s assessment
in April 2016 that Plaintiff could only tolerate mild exertion”; that “[u]ltimately, the total
absence of supporting objective physical and mental examination findings during the relatively
narrow adjudicated period at issue in this case belies Plaintiff’s disability claim”; and that “the
ALJ did not have any further obligation to supplement the record by acquiring a medical source
statement from one of Plaintiff’s treating sources[,] because the ALJ had all of [Plaintiff’s]
treating records. . . . (Def. Br. (Dkt. No. 16) at 17-18, 20)
Although attorney Christopher Bowes filed a notice of appearance on Plaintiff’s
behalf on December 17, 2019, see Dkt. No. 21, and requested an extension of time to file a
motion for judgment on the pleadings, see Dec. 17, 2019 Pltf. Ltr. (Dkt. No. 22) – an application
that Judge Fox granted, see Dkt. No. 23 – Plaintiff did not so move. Indeed, Plaintiff has made
no submissions since his December 17, 2019 letter.
On April 9, 2020, Judge Fox issued an 8-page R & R, recommending that this
Court grant Defendant’s motion for judgment on the pleadings. (R & R (Dkt. No. 24))
In his R & R, Judge Fox notifies the parties that they have fourteen days from
service of the R & R to file any objections, pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of
the Federal Rules of Civil Procedure. (R & R (Dkt. No. 24) at 7) The R & R further states that
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“[f]ailure to file objections within fourteen (14) days will result in a waiver of objections and will
preclude appellate review.” (Id. at 8 (emphasis omitted)) Neither party has filed objections to
the R & R.
DISCUSSION
I.
LEGAL STANDARD
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). Where a timely objection has been made to the magistrate judge’s
recommendations, the district court judge “shall make a de novo determination of those portions
of the report or specified proposed findings or recommendations to which objection is made.”
Id.
Where, as here, no objections are filed to a magistrate judge’s R & R – despite
clear warning that a failure to file objections will result in a waiver of judicial review – judicial
review has been waived. See Thomas v. Arn, 474 U.S. 140, 147-48 (1985); see also Mario v. P
& C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Where parties receive clear notice
of the consequences, failure timely to object to a magistrate’s report and recommendation
operates as a waiver of further judicial review of the magistrate’s decision.” (citing Small v.
Sec’y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam))); see also
Spence v. Superintendent, Great Meadow Correctional Facility, 219 F.3d 162, 174 (2d Cir. 2000)
(“Failure to timely object to a report generally waives any further judicial review of the findings
contained in the report.”). This Court has nonetheless reviewed Judge Fox’s R&R for clear
error.
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II.
THE ALJ’S DECISION
An ALJ conducted a hearing concerning Plaintiff’s claim for disability benefits on
April 20, 2016. The ALJ heard testimony from (1) Plaintiff – who proceeded pro se; (2) Dr. Paul
Greenberg, an impartial medical expert; and (3) Mark Heckman, an impartial vocational expert.
(Record (“R.”) (Dkt. No. 14-2) at 19). The ALJ also considered reports from (1) Dr. Douglas
Greenfield, a consultative examiner who conducted a physical examination of Plaintiff; and (2)
Dr. John Nikkah, a psychiatric consultative examiner. (Id. at 26, 28). The ALJ did not hear
testimony from Plaintiff’s treating physicians, but did consider records obtained from the treating
physicians. (See, e.g., id. at 25-29)
Plaintiff worked as a packer in 2012 and last worked in security from 2013 to
February 2014. (Id. at 24, 29-30, 48-50, 55) His prior work involved lifting objects that
weighed as much as 20 to 25 pounds. (Id. at 53) He alleged a disability onset date of March 1,
2014. (Id. at 19; R. (Dkt. No. 14-6) at 3) The ALJ determined that Plaintiff suffers from the
following heart-related and psychiatric severe impairments: aortic valve replacement (2006);
atrial fibrillation (2007); decrease ejection fraction (2007); congestive heart failure; anxiety
disorder; and affective disorder. (R. (Dkt. No. 14-2) at 21) The ALJ further determined that
none of Plaintiff’s impairments – whether considered singly or together – met or medically
equaled the severity of one of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix
1. (Id. at 22) The ALJ further determined, inter alia, that Plaintiff had the residual functional
capacity to perform less than a full range of medium work; could lift/carry/push/pull twenty-five
pounds frequently and fifty pounds occasionally; and could sit/stand/walk for as much as six
hours during an eight hour work day. (Id. at 23) The ALJ concluded that Plaintiff was thus
capable of performing his prior work as a packer, and was not disabled during the period
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between March 1, 2014 and September 30, 2014. (Id. at 30)
Plaintiff’s testimony at the hearing, as well as the medical evidence, supports the
ALJ’s determination. Plaintiff testified that he prepared meals at home; shopped monthly; and
performed basic chores at home, including mopping the floor and moving heavy objects – such
as furniture – when necessary. He further reported that he could lift objects weighing as much as
forty pounds without chest pain or shortness of breath. (Id. at 27-29; R. (Dkt. No. 14-7) at 14)
As to the medical evidence, it showed that Plaintiff’s heart-related symptoms had been well
managed since 2007. (Id. at 29) Dr. Greenfield’s physical examination and findings were
consistent with the notion that Plaintiff could perform at least medium work. While Dr.
Greenfield had concluded in April 2016 that Plaintiff could perform work that required only mild
exertion, the ALJ gave this opinion no weight, because it concerned Plaintiff’s condition outside
the relevant time period. (Id. at 28-29)
As to mental health, the record suggested only mild to moderate issues, in the
areas of understanding, remembering or applying information, social interaction, concentration,
persistence, and adaptation. (Id. at 22, 28) The ALJ acknowledged these limitations in
concluding that Plaintiff could perform work that required no more than two hours of continuous
mental concentration at a time, with only occasional changes in the workplace and only
occasional independent decision-making. 1 (Id. at 23)
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With regard to Rodriguez’s mental impairments, the ALJ referred to outdated “paragraph B”
criteria for Listings 12.04 and 12.06 of 20 C.F.R. Part 404, Subpart P, Appendix 1. (See R. (Dkt.
No. 14-2) at 22) However, Judge Fox found that this erroneous reference was harmless,
“because it is clear from the ALJ’s March 27, 2017 decision that the ALJ applied the paragraph
B criteria for Listings 12.04 and 12.06 in effect as of January 17, 2017.” (R & R (Dkt. No. 24) at
6-7) The Court agrees that the ALJ correctly applied the appropriate 12.04 and 12.06 criteria.
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III.
THE MAGISTRATE JUDGE’S R&R
In recommending that Defendant’s motion for judgment on the pleadings be
granted, Judge Fox accepts the ALJ’s findings concerning Plaintiff’s physical and mental
condition:
The ALJ concluded properly that Rodriguez’s impairments, singly or in combination,
did not meet or medi[c]ally equal Listings 4.02, for chronic heart failure, 12.04 for
depressive, bipolar and related disorders, or 12.06 for anxiety and obsessive
compulsive disorders, pursuant to 20 C.F.R. Part 404, Subpart P, Appendix 1,
because the record does not support a finding that Listing was met or equaled during
the adjudicated period, from March 1, 2014 to September 30, 2014. . . . The ALJ
rejected properly Dr. Greenfield’s opinion that Rodriguez was compromised in his
ability to perform activities requiring more than mild exertion to the extent that it
related to Rodriguez’s condition in 2016, not the relevant time in 2014.
The ALJ’s residual functional capacity determination is supported by substantial
evidence in the record, including Rodriguez’s testimony. Dr. Nikkah’s and Dr.
Greenberg’s opinions were accorded good weight properly by the ALJ, as they are
consistent with and supported by the evidence of record as a whole. Moreover, Dr.
Nikkah’s opinion is consistent with his findings. The ALJ relied properly on the
vocational expert when determining that Rodriguez was able to perform his past
relevant work as a packer, as well as Rodriguez’s testimony that his past work as a
packer involved lifting that was “like around 20 to 25 pounds.” Upon review of the
record, the Court finds that the ALJ did not commit any legal error and the ALJ’s
decision is supported by substantial evidence.
(R & R (Dkt. No. 24) at 6-7)
This Court sees no error, much less clear error, in Judge Fox’s reasoning and
conclusions. See Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted).
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CONCLUSION
Magistrate Judge Fox’s R & R (Dkt. No. 24) is adopted in its entirety, and
Defendant’s motion for judgment on the pleadings is granted. The Clerk of Court is directed to
terminate the motion (Dkt. No. 15) and to close this case.
Dated: New York, New York
June 20, 2020
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