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Borush v. Astrue

September 10, 2008


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



Currently before the Court are Magistrate Judge DiBianco's Report and Recommendation, Defendant's objections thereto, and Plaintiff's response to those objections. See Dkt. Nos. 16, 18, 23.


Plaintiff, who was thirty-five years of age at the time of the Administrative Law Judge's determination, has a history of working part-time jobs during the 1990s and holding a few full-time positions between 2000 and 2002. See Administrative Transcript ("Tr.") at 46-49, 53. Plaintiff most recently worked in the food service industry and in janitorial work where she frequently lifted twenty-five to fifty pounds. See id. at 53, 165, 166. Plaintiff stopped working during June 2003 as a result of having chronic pain in her lower back and shoulders. See id. at 163. Plaintiff has received medical treatment from two main sources, the Osteopathic Family Practice located in Johnson City, New York, see id. at 139-57, and Dr. Ronnie Kanas of the Center for Pain Relief, see id. at 95-97, 110-16. At the Osteopathic Family Practice, Plaintiff's two main treating medical professionals were Dr. Karen Heister, D.O. (Doctor of Osteopathy) and Dr. Sherrod Hamlin, D.O. See id. at 139-42, 144, 145. On two or three other occasions, two other individuals, Stradley and Dr. Buchanan, treated Plaintiff at the Osteopathic Family Practice. See id. at 151, 145, 149. The Osteopathic Family Practice and Drs. Hamlin and Heister provided Plaintiff's overall care, see Tr. at 138-57, and Dr. Kanas from the Center for Pain Relief administered spinal injections to the S1 joint of Plaintiff's spine, see Tr. at 110-16.

Plaintiff has a long list of complaints, including muscle pain from fibromyalgia and sacroiliitis, insomnia, difficulty with activities of daily living and constant back pain. See Tr. at 141. Plaintiff has also complained that she cannot lift, cannot sit more than thirty minutes, cannot stand more than fifty minutes, and cannot walk more than one half of a block. Plaintiff also stated that she received help from her children with her daily chores and with getting dressed and that physical therapy and medications did not relieve the pain. See Tr. at 140.

In response to Plaintiff's complaints, her treating physicians, Drs. Heister, Hamlin and Kanas, performed a series of medical tests and procedures, which led to their diagnoses that Plaintiff suffered from chronic pain, fibromyalgia, and sacroiliitis. See id. at 139-40. As a result of her symptoms and diagnoses, Plaintiff has taken several different types of medications, including Vioxx, Naprosyn, Amitriptyline, and Zoloft, none of which, she claims, alleviate her pain. See id. at 140, 171. Despite these chronic symptoms, however, Plaintiff is able to drive, although she cannot sit for an extended period of time; is able to use the computer for thirty minutes up to three times a week; and is able to cook simple meals, although she cannot stand for prolonged periods of time. See id. at 175-76.

Plaintiff filed applications for Disability Insurance Benefits and Supplemental Security Income ("SSI") benefits on October 6, and October 24, 2003, alleging disability based on her impairments. See Tr. at 41-43, 118-22. Both applications were denied at the initial review level. Plaintiff, therefore, requested a hearing before an Administrative Law Judge ("ALJ"), which was held on August 12, 2004. See id. at 158-81. In a decision dated September 29, 2004, the ALJ found that Plaintiff was not disabled. See id. at 13-22. Plaintiff, proceeding pro se, appealed the ALJ's decision to the Appeals Council and submitted additional medical records and a lengthy hand-written letter. See id. at 138-59, 124-37. The ALJ's decision became the Commissioner's final decision on February 3, 2005, when the Appeals Council denied her request for a review of that decision.

Plaintiff commenced this action, seeking judicial review of the Commissioner's final decision. In support of her complaint, Plaintiff contended that the ALJ erred in several ways: (1) he did not properly assess her obesity and erred by failing to find that her obesity was a severe impairment; (2) he did not properly assess her credibility; (3) he failed to develop the record properly in light of the fact that she was proceeding pro se; (4) he failed to give proper weight to the opinions of her treating physicians; and (5) he erred in finding that she had no non-exertional impairments and in failing to call a vocational expert. See Report and Recommendation at 2. Furthermore, Plaintiff argued that the Appeals Council erred by failing to explain its evaluation of the new evidence or the weight that it gave to the new evidence that she had supplied. See id.

After reviewing the ALJ's decision in light of Plaintiff's objections, Magistrate Judge DiBianco recommended that this Court remand the case for a proper application of the treating physician rule and for an evaluation of Plaintiff's residual functional capacity ("RFC").

Defendant objects to Magistrate Judge DiBianco's recommendation for two reasons. First, Defendant contends that Magistrate Judge DiBianco erred in his application of the treating physician rule by failing to "identify the opinions that he believed the ALJ did not analyze" in his determination. See Defendant's Objections at 3. Second, Defendant argues that Magistrate Judge DiBianco failed to base his review of the ALJ's RFC assessment on the record, since there was substantial evidence to support the ALJ's determination that Plaintiff retained the RFC for light work. See id. at 5.


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 ...

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