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Fox v. Commissioner of Social Security

February 13, 2009

GARY D. FOX, PLAINTIFF,
v.
COMMISSIONER OF SOCIAL SECURITY, 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 Treece's June 1, 2006 Report- Recommendation and Order and Plaintiff's objections thereto.

II. BACKGROUND

On February 24, 2000, Plaintiff protectively filed for Supplemental Security Income ("SSI") benefits alleging a disability onset date of May 18, 1998. See Dkt. No. 9, Administrative Transcript ("Tr."), at 110-13, 116. Plaintiff's application was denied initially and on reconsideration. See id. at 76-79. Plaintiff, therefore, requested a hearing, which was held before Administrative Law Judge ("ALJ") Joseph Medicis, Jr., on November 7, 2000, and continued on January 2, 2001. See id. at 45-75. On April 4, 2001, the ALJ issued an unfavorable decision against Plaintiff. See id. at 21-27. In pertinent part, the ALJ found that, based on the testimony from various treating and/or examining physicians and a vocational expert ("VE"), Plaintiff had a residual functional capacity ("RFC") to perform at least sedentary and light work duties where it was not necessary for him to use both arms. See id. at 21-27. The ALJ further found that, in light of Plaintiff's RFC, age, educational background, and work experience, there was a significant number of jobs in the national economy that Plaintiff could perform and that Plaintiff was, therefore, not disabled. See id. Specifically, the ALJ found that, based on the VE's testimony, Plaintiff could perform the job of a surveillance system monitor, which was sedentary and unskilled and which existed in significant numbers in the regional and national economy. See id.

On August 14, 2002, the Appeals Council concluded that there was no basis under the Regulations to grant Plaintiff's request for review, thus rendering the ALJ's decision the Commissioner's final determination. See id. at 5-6.

Plaintiff, therefore, commenced this action on September 9, 2002, seeking judicial review of the Commissioner's final determination. See Dkt. No. 1. Plaintiff objected to the ALJ's decision on the ground that the ALJ had failed to develop fully his medical history beyond his arm impairments; that the substantial evidence in the record did not support the ALJ's finding regarding Plaintiff's RFC; that, in assessing Plaintiff's RFC, the ALJ had failed to defer properly to Plaintiff's treating physician; and that the number of jobs that the VE had identified did not adequately represent the limited jobs that Plaintiff could perform. See Report-Recommendation and Order at 12.

Magistrate Judge Treece addressed each of Plaintiff's objections and found that (1) Plaintiff had not "substantiated his contention that the ALJ should have developed the record further with regard to any mental impairments," see id. at 14; (2) that there was substantial evidence in the record to support the ALJ's findings regarding Plaintiff's RFC, see id. at 19; (3) that the ALJ correctly applied the Treating Physician Rule, see id. at 18; and (4) that the ALJ properly relied on the number of jobs that the VE identified, even if diminished by a small percentage in his estimation, in finding that work existed in the national and regional economy that Plaintiff could perform, see id. at 33. Based on all these findings, Magistrate Judge Treece recommended that this Court affirm the Commissioner's decision. See id.

On June 14, 2006, Plaintiff filed objections to Magistrate Judge Treece's Report-Recommendation and Order. See Dkt. No. 16. Specifically, Plaintiff objected to Magistrate Judge Treece's agreement with the ALJ's conclusion that there were a significant number of jobs existing in the national and regional economy that Plaintiff could perform. See id. at 5, 7-8.

III. DISCUSSION

A. Standard of Review

In evaluating the report-recommendation and order of a magistrate judge, the 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). When a party timely objects to the magistrate judge's recommendations, the court is required to review the contested portions de novo. See Pizarro v. Bartlett, 776 F. Supp. 815, 817 (S.D.N.Y. 1991). On the other hand, with respect to uncontested portions of the magistrate judge's recommendations, the court need only review the face of the record for clear error. See Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003) (quotation omitted). Likewise, where objections to a recommendation simply reiterate the same arguments as those in the original pleadings, a district court need only review for clear error. See Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47 (S.D.N.Y. 2006) (citations omitted).

A district court's review of an ALJ's denial of benefits is limited in that a court cannot set aside the ALJ's decision unless it is based on some legal error or is not supported by substantial evidence. See Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998) (citation omitted). Substantial evidence is evidence that a reasonable mind would accept as sufficient to support a particular conclusion and consists of more than a mere scintilla of evidence but may be less than a preponderance. See Cellular Tel. Co. v. Town of Oyster Bay, 166 F.3d 490, 494 (2d Cir. 1999). Finally, if the evidence is such that it can lead to more than one ...


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