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Dambrowski v. Astrue

December 22, 2008

JOSEPH DAMBROWSKI, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



MEMORANDUM OPINION AND ORDER

Plaintiff Joseph Dambrowski brings this action pursuant to Section 205(g) of the Social Security Act, as amended ("Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), to seek review of a final decision of the Commissioner ("Commissioner") of the Social Security Administration ("SSA") denying his application for Supplemental Security Income ("SSI") benefits. Plaintiff has moved pursuant to Rule 12(c) of the Federal Rules of Civil Procedure for judgment on the pleadings, and the Commissioner has cross-moved to remand the case for further administrative proceedings. In his report and recommendation (the "Report"), Magistrate Judge Frank Maas concluded that the Commissioner's motion should be granted and that the plaintiff's motion should be denied. Plaintiff filed timely objections to the Report on six grounds, contending that, contrary to Report: (1) there are no gaps in the administrative record requiring a remand for further fact-finding; (2) the Administrative Law Judge's ("ALJ") failure to specify a basis for his conclusions is not a cause for remand; (3) remand is not warranted when some portions of the ALJ's decision are supported by substantial evidence while others are not; (4) the ALJ's failure to fully develop the record does not require remand; (5) there is no evidence in the record tending to support a finding of non-disability; and (6) there is additional evidence in the record warranting a judgment in plaintiff's favor. For the reasons that follow, the Court adopts the Report's conclusions, and remands this case to the SSA for further administrative proceedings.

BACKGROUND

The factual background and relevant procedural history are set forth in the Magistrate's Judge's Report and Recommendation. The court adopts the findings of fact as set forth in the Report and assumes familiarity with the facts as stated therein.

DISCUSSION

I. Standards of Review

A. Review of the Magistrate Judge's Report

A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motions. See 28 U.S.C. § 636(b)(1). Within ten days of service of the recommendation, any party may file written objections to the magistrate's report. Id. In evaluating the report, the court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate". Id.

The court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." Id.; see, e.g., Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226-27 (S.D.N.Y. 2008). "If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the Report and Recommendation only for clear error." Silva v. Peninsula Hotel, 509 F. Supp. 2d 364, 366 (S.D.N.Y. 2007) (citations omitted). Where a party makes "merely perfunctory responses, argue[s] in a rehashing of the same arguments set forth in the original petition", the court reviews for clear error. Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (internal quotation marks and citations omitted). Parties "may not attempt to relitigate the entire content of the hearing . [and] are not to be afforded a 'second bite at the apple'". Carmardo v. General Motors Hourly-Rate Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992).

B. Review of the Administrative Law Judge's Decision

A federal district court reviewing the decision of an administrative law judge in a social security appeal looks to whether the correct legal standards were applied and whether the agency's factual determinations are supported by "substantial evidence". Acierno v. Barnhart, 475 F.3d 77, 80-81 (2d Cir. 2007) (citing Pollard v. Halter, 377 F.3d 183, 188 (2d Cir. 2004) (internal quotation marks omitted)); see, e.g., Jordan v. Comm'r of Soc. Sec., 194 F. App'x. 59, 61 (2d Cir. 2006) (citing Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Substantial evidence is "more than a mere scintilla" of evidence. Pratts v. Chater, 94 F.3d 34, 37 (2d Cir. 1996) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). It means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion". Jordan, 194 F. App'x. at 61 ((quoting Williams ex rel. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). "Where the Commissioner's decision rests on adequate findings supported by evidence having rational probative force, [the Court] will not substitute [its] judgment for that of the commissioner." Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).

Review of the ALJ's legal conclusions is de novo. Pollard, 377 F.3d at 188; see also Rivera v. Sullivan, 771 F. Supp. 1339, 1351 (S.D.N.Y. 1991) (observing that "with respect to the [ALJ's] legal conclusions, or more generally his application of legal principles, judicial review is de novo").

II. The ALJ's Decision Is Not Supported by Substantial Evidence

The Social Security Administration uses a five-step procedure for evaluating disability claims:

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 experience .c.c.c. 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.

Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (interpreting procedure described at 20 C.F.R. ยง 404.1520). The claimant has the burden of proving the first four steps, while the burden shifts to the ...


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