Lebron v. Colvin

Filing 20

ORDER adopting 12 Motion for Judgment on the Pleadings filed by Cynthia Oneida Lebron, 14 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin, 17 Report and Recommendations: I have reviewed the portions of the R&R as to which no objection has been raised, and find no clear error. Thus, I adopt as the decision of the Court all of the R&R except Part III.B.4, regarding the Step 5 analysis. Because the ALJ did not apply the wrong legal standards in using the grids and in not o btaining a vocational expert, and because his decision is supported by substantial evidence, Plaintiff's motion for judgment on the pleadings is - essentially for the reasons stated by the Government - DENIED and Defendant's motion for judg ment on the pleadings is - essentially for the same reasons - GRANTED. The Clerk of Court is respectfully directed to terminate the pending motions. (Docs. 12, 14), enter judgment for Defendant, and close the case. (Signed by Judge Cathy Seibel on 7/18/2018) (jwh)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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CYNTHIA ONEIDA LEBRON,
Plaintiff,
-againstCAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,

ORDER
14-CV-5921 (CS)(LMS)

Defendant.
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Seibel, J.
Before the Court are: 1) Defendant’s objections, (Doc. 18 (“Obj.”)), to the Report and
Recommendation of United States Magistrate Judge Lisa Margaret Smith, (Doc. 17 (“R&R”)),
recommending that Plaintiff’s motion for judgment on the pleadings be granted and Defendant’s
motion for judgment on the pleadings be denied; and 2) Plaintiff’s response to Defendant’s
objections, (Doc. 19).
A District Court reviewing a 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)(C). 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)) (citing Thomas v. Arn, 474 U.S. 140, 149 (1985)). “A party that objects to a report and
recommendation must point out the specific portions of the report and recommendation to which
they [sic] object.” J.P.T. Auto., Inc. v. Toyota Motor Sales, U.S.A., Inc., 659 F. Supp. 2d 350,

352 (E.D.N.Y. 2009). If a party fails to object to a particular portion of a report and
recommendation, further review thereof is generally precluded. See Mario v. P & C Food Mkts.,
Inc., 313 F.3d 758, 766 (2d Cir. 2002). The court must review de novo any portion of the report
to which a specific objection is made. See 28 U.S.C. § 636(b)(1)(C); United States v. Male
Juvenile, 121 F.3d 34, 38 (2d Cir. 1997). “[W]hen a party makes only conclusory or general
objections, or simply reiterates the original arguments made” below, a court will review the
report only for clear error. Alaimo v. Bd. of Educ. of the Tri-Velley Cent. Sch. Dist., 650 F. Supp.
2d 289, 291 (S.D.N.Y. 2009). “Furthermore, [even] on de novo review, the Court generally does
not consider arguments or evidence which could have been, but were not, presented to the
Magistrate Judge.” United States v. Vega, 386 F. Supp. 2d 161, 163 (W.D.N.Y. 2005).
The Court presumes the reader’s familiarity with the record, the prior proceedings and the
standards governing judicial review of decisions of the Commissioner of Social Security.
Defendant objects only to Magistrate Judge Smith’s conclusion that the Administrative
Law Judge (“ALJ”) erred in using Rule 204.000 of the Medical-Vocation Guidelines, commonly
known as “the grid,” in concluding that Plaintiff was not disabled, and therefore not obtaining the
testimony of a vocational expert, in connection with “step 5,” which requires the Commissioner
to show that the claimant is capable of working. Judge Smith found that the grid is never
applicable when the claimant, like Plaintiff here, suffers from only non-exertional limitations,
and that in such circumstances a vocational expert is required. (R&R at 51-52.) This conclusion
is erroneous in light of Selian v. Astrue, 708 F.3d 409, 422 (2d Cir. 2013), and Zabala v. Astrue,
595 F.3d 402, 411 (2d Cir. 2010). The Zabala Court stated:

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If 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. However, the mere
existence of a nonexertional impairment does not automatically . . .
preclude reliance on the guidelines. A nonexertional impairment
significantly limits 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 opportunity.
595 F.3d at 410-11 (internal quotations marks, citations and alteration omitted). Thus, a
vocational expert is not required unless the claimant’s nonexertional limits result in a nonnegligible loss of work capacity. In Zabala,
[t]he ALJ found that Petitioner’s mental condition did not limit her
ability to perform unskilled work, including carrying out simple
instructions, dealing with work changes, and responding to
supervision. Thus, her nonexertional limitations did not result in
an additional loss of work capacity, and the ALJ’s use of the
Medical–Vocational Guidelines was permissible.
Id. at 411. Likewise here, the ALJ found that Plaintiff “has the mental residual functional
capacity to perform unskilled, simple tasks,” (Doc. 8-2 at 30), and “is able to” “understand, carry
out and remember simple instructions; to respond appropriately to supervision, coworkers, and
usual work situations; and to deal with changes in a routine work setting on a sustained basis.”
(Id.)1 Thus, as in Zabala, her limitations did not result in an additional loss of work capacity; the
use of the grid was permissible; and a vocational expert was not required.2

1

Plaintiff does not raise objections to Magistrate Judge Smith’s conclusion that the ALJ’s
determination in this regard was supported by substantial evidence.
2

While the Magistrate Judge and some district courts have held that use of the grids is
inappropriate, and a vocational expert is required, where the impairments are solely nonexertional, see R&R at 51-52 & n.48 (collecting cases), the impairments in Zabala were solely
non-exertional, and the Court squarely rejected the plaintiff’s argument “that her limitations were
nonexertional and the Medical–Vocational Guidelines may only be used to evaluate exertional
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Similarly, in Selian the Court acknowledged that “the ALJ cannot rely on the Grids if a
non-exertional impairment has any more than a negligible impact on a claimant’s ability to
perform the full range of work, and instead must obtain the testimony of a vocational expert,”
708 F.3d at 421, but found that the claimant’s mental illness had only a negligible impact where
the ALJ had found “that [the claimant] could perform the basic mental demands of unskilled
work, such as following simple instructions, and responding appropriately to supervisors and
coworkers in usual work situations,” id. at 422 (internal quotation marks omitted). The similar
finding here compels the same result.
The ALJ acknowledged that Plaintiff’s ability to work was “compromised by
nonexertional, mental/cognitive limitations,” but that “th[o]se limitations have little or no effect
on the occupational base of unskilled work.” (Doc. 8-2 at 31-32.) “Because the ALJ found that
Plaintiff’s non-exertional limitations had little or no effect on the occupational base of unskilled
work, the ALJ properly relied on Rule 204.00 of the Medical-Vocational Guidelines as a
framework in finding Plaintiff not disabled.” Andrews v. Comm’r of Soc. Sec., No. 16-CV-6867,
2017 WL 6398716, at *13 (S.D.N.Y. Oct. 24, 2017), report and recommendation adopted, 2017
WL 6398727 (S.D.N.Y. Dec. 13, 2017).
Plaintiff does not address these cases, but argues instead that Plaintiff’s “severely limited
ability to read and write would impact the occupational base such that vocational expert
testimony is warranted.” (Doc. 19 at 1.)3 But the ALJ acknowledged Plaintiff’s poor academic
skills in concluding she was capable only of unskilled work, specifically noting her poor grade

limitations,” Zabala, 595 F.3d at 410.
3

Plaintiff notes a school report from 1999 that put her reading at a second grade level.
4

equivalence in reading and math, her negligible academic skills, and her learning disabilities.
(See Doc. 8-2 at 27-31.) Although he mentioned her completion of tenth grade, he plainly did so
as part of his obligation under 20 C.F.R. § 404.1520(a)(4)(v) to “consider . . . [her] residual
functional capacity and [her] age, education, and work experience to see if [she] can . . . work”;
he did not, as Plaintiff implies, assume that because she had completed the tenth grade, she was a
good reader. To the contrary, 20 C.F.R. § 404.1564(b)(2) states that formal schooling at a sixthgrade level or less suggests the ability to do only simple, unskilled jobs – and the ALJ concluded
that Plaintiff was indeed limited to only such tasks. (Doc. 8-2 at 30.)
I have reviewed the portions of the R&R as to which no objection has been raised, and
find no clear error. Thus, I adopt as the decision of the Court all of the R&R except Part III.B.4,
regarding the Step 5 analysis. Because the ALJ did not apply the wrong legal standards in using
the grids and in not obtaining a vocational expert, and because his decision is supported by
substantial evidence, Plaintiff’s motion for judgment on the pleadings is – essentially for the
reasons stated by the Government – DENIED and Defendant’s motion for judgment on the
pleadings is – essentially for the same reasons – GRANTED.
The Clerk of Court is respectfully directed to terminate the pending motions. (Docs. 12,
14), enter judgment for Defendant, and close the case.
Dated: July 18, 2018
White Plains, New York

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CATHY SEIBEL, U.S.D.J.

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