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Magee v. Astrue

September 9, 2008

JUDY C. MAGEE, PLAINTIFF,
v.
MICHAEL J. ASTRUE, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

Currently before the Court are Magistrate Judge Peebles' Report and Recommendation and Plaintiff's objections thereto.

II. BACKGROUND

Plaintiff was born on May 27, 1974; and, at the time of the administrative hearing, she was thirty years old. See Administrative Transcript ("Tr.") at 12, 34. Plaintiff has not been employed since November 30, 1999, as a result of an injury to her lower back in May of 1999, which she suffered in the course of her duties as a nurse's assistant. See id. at 255, 264, 273. Since the injury, Plaintiff has sought and received medical treatment, has consulted different physicians on numerous occasions, and has been diagnosed with various conditions, including chronic neck and back pain, fibromyalgia, irritable bowel syndrome, and a hiatal hernia. Moreover, since the onset of her injuries, Plaintiff has sought and undergone various forms of treatment, including taking prescription drugs, attending physical therapy, wearing a soft collar around her neck, and undergoing a series of epidural block and Cortisone injections for relief of pain.

Despite her injuries, Plaintiff has been able to perform a variety of activities, including driving an automobile, watching television, performing various household tasks, visiting her mother, picking up her husband at work, shopping for groceries, and traveling to yard sales two or three times each week.

Plaintiff filed an application for Supplemental Security Income ("SSI") benefits on February 11, 2003, alleging disability based on her injuries, which was denied at the initial review level. Plaintiff requested a hearing before an Administrative Law Judge, which was held on July 27, 2004. In a decision dated August 24, 2004, the ALJ determined that Plaintiff was not disabled and, therefore, denied her application for benefits. The ALJ's decision became the Commissioner's final determination on February 2, 2005, when the Social Security Administration Appeals Council denied Plaintiff's request for review of that decision.

Plaintiff commenced this action on March 31, 2005, seeking judicial review of that final decision. She argued that the ALJ had erred because he (1) failed to obtain medical records to fill critical gaps in the evidence; (2) misinterpreted and/or improperly discounted the opinions of her treating physician; (3) failed to specify the frequency of her need to alter positions when determining her residual functional capacity ("RFC"); (4) improperly relied on the testimony of a vocational expert, both because that testimony was based on an unsupported hypothetical that did not approximate Plaintiff's condition and because it reflected the lack of a sufficient number of jobs in the national and local economies that she could perform; and (5) improperly rejected, as not entirely credible, her subjective testimony about her disabling pain without providing a proper explanation or support for doing so. See Report and Recommendation at 2-3. After considering the ALJ's decision in light of Plaintiff's arguments, Magistrate Judge Peebles found that the ALJ applied the correct legal principles and that there was substantial evidence in the record to support the ALJ's determination. See id. at 3.

Plaintiff objects to Magistrate Judge Peebles' affirmance of the ALJ's decision for several reasons. First, Plaintiff contends that Magistrate Judge Peebles improperly supplied "after the fact" reasoning and rationale to support the ALJ's determination. See Plaintiff's Objections at 1-2. Second, Plaintiff argues that Magistrate Judge Peebles erred by shifting the burden of developing the record from the ALJ to Plaintiff's attorney. See id. at 2-3. Plaintiff also contends that Magistrate Judge Peebles applied the incorrect legal standard by failing to find that an RFC assessment must specify the frequency with which a claimant needs to alternate between sitting and standing. See id. at 3-4. Lastly, Plaintiff argues that Magistrate Judge Peebles erred when he relied upon the fact that Plaintiff's physicians had prescribed a "conservative course of treatment" to undermine Plaintiff's credibility. See id. at 4-5.

III. DISCUSSION

A. Standard of Review

In reviewing the Commissioner's final decision, a court must determine whether the Commissioner applied the correct legal standards and whether there is substantial evidence in the record as a whole to support the decision. See Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y. 1992) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)) (other citations omitted). A reviewing court, however, may not affirm an ALJ's decision if it reasonably doubts that the ALJ applied the proper legal standards even if it appears that there is substantial evidence to support that decision. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987). In addition, an ALJ must set forth the crucial factors justifying his findings with sufficient specificity to allow a court to determine whether substantial evidence supports his decision. See Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) (citation omitted).

A court's factual review of the Commissioner's final decision is limited to the determination of whether there is substantial evidence in the record to support that decision. See 42 U.S.C. § 405(g); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991) (citations omitted). "Substantial evidence has been defined as 'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion . . . .'" Williams on behalf of Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988) (quotation omitted). "It is more than a mere scintilla or a touch of proof here and there in the record." Id.

"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Id. (citations omitted). "However, a reviewing court cannot substitute its interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision." Lewis v. Comm'r of Soc. Sec., No. 6:00 CV 1225, 2005 WL 1899399, *1 (N.D.N.Y. Aug. 2, 2005) (citations omitted).

Finally, in a case such as this one in which a magistrate judge has issued a Report and Recommendation and a party has properly filed objections to that report, "the district court shall make a de novo determination of those portions of the report to which the objections are made[,]" 28 U.S.C. ยง 636(b)(1)(C), and shall review those portions of the report to which neither party objects ...


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