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Urena-Perez v. Astrue

June 18, 2009


The opinion of the court was delivered by: John G. Koeltl, District Judge


This case concerns limited objections to a Report and Recommendation by Magistrate Judge Dolinger, familiarity with which is assumed, recommending that the plaintiff's application for Disability Insurance Benefits and Supplemental Security Income under Title II and Title XVI of the Social Security Act (the "Act"), respectively, be remanded to the Commissioner of the Social Security Administration (the "Commissioner").*fn1

The plaintiff, Engracia Urena-Perez, filed her Social Security claims on September 17, 2001, alleging psychological and physical ailments, including depression and back problems. A hearing was held on the plaintiff's claims before Administrative Law Judge Kenneth Levin (the "ALJ") on June 24, 2004. The ALJ issued a decision on July 13, 2004 denying the plaintiff's application based on a finding that the plaintiff was not disabled (the "ALJ decision"). The plaintiff sought review of the ALJ decision pursuant to Sections 205(g) and 1631(c)(3) of the Act, as amended, 42 U.S.C. §§ 405(g) and 1383(c)(3). The parties filed cross-motions for judgment on the pleadings and the case was referred to the magistrate judge. On January 7, 2009, the magistrate judge issued a thorough Report and Recommendation recommending that the plaintiff's motion for a remand be granted and setting forth numerous grounds on which a remand was warranted.

The Commissioner consents to a remand. The Commissioner only objects to a limited number of the grounds set forth in the Report and Recommendation and seeks clarification that those grounds do not support a remand. (See Tr. 4 ("[The Court:] Bottom line is, you agree that the case should be remanded to the ALJ, but you think that this Court should note that some of the grounds that the Magistrate Judge set forth for remand were not quite right. [Defense Counsel:] That's correct."). Thus the only issue in this case is the correctness of the particular grounds for remand that have been challenged by the Commissioner. Accordingly, the Court limits its consideration to those grounds.


Pursuant to 28 U.S.C. § 636(b)(1)(C), any portion of a magistrate judge's Report and Recommendation to which objection is made is subject to de novo review. See, e.g., McClain ex rel. McClain v. Halter, No. 99 Civ. 3236, 2001 WL 619177, at *1 (S.D.N.Y. June 5, 2001); DeJesus, 899 F. Supp. at 1174-75.

A Court may set aside a determination by the Commissioner only if it is based upon legal error or is not supported by substantial evidence in the record. See 42 U.S.C. §§ 405(g) & 1383(c)(3); Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); Dousewicz v. Harris, 646 F.2d 771, 773 (2d Cir. 1981). Substantial evidence is "more than a mere scintilla," it is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (quoting Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)); see also Poupore v. Astrue, 2009 WL 1383274, at *1 (2d Cir. May 21, 2009) (per curiam); Diaz v. Shalala, 59 F.3d 307, 314 (2d Cir. 1995); Rivera v. Sullivan, 923 F.2d 964, 967 (2d Cir. 1991); Taveras, 1998 WL 557587, at *1; Zwick v. Apfel, No. 97 Civ. 5140, 1998 WL 426800, at *3 (S.D.N.Y. July 27, 1998).

To determine whether a claimant is disabled, the Social Security Administration must undertake a five-step evaluation:

First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. Where the claimant is not, the Commissioner next considers whether the claimant has a "severe impairment" that significantly limits her 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 that is listed in 20 C.F.R. pt. 404, subpt. P, app. 1. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, she has the residual functional capacity to perform her past work. Finally, if the claimant is unable to perform her past work, the burden then shifts to the Commissioner to determine whether there is other work which the claimant could perform.

Jasinsky v. Barnhart, 341 F.3d 182, 183-84 (2d Cir. 2003) (quoting Tejada v. Apfel, 167 F.3d 770, 774 (2d Cir. 1999)) (internal ellipses omitted); see also 20 C.F.R. §§ 404.1520, 416.920.


The Commissioner primarily objects to the magistrate judge's finding that a remand is warranted because the ALJ rejected the key findings of the plaintiff's treating psychiatrist, Dr. Juliana Ekong, and treating psychologist, Dr. Diana Morrobel (collectively the "treating physicians") and relied exclusively on medical expert testimony in their stead.

The magistrate judge found that in rejecting the findings of the treating physicians without explaining the reasons for doing so, the ALJ flouted the "treating physician rule" of the Social Security Administration. (Report and Recommendation ("R.") 75.) Relatedly, the magistrate judge found that the ALJ should have developed the administrative record more fully in connection with the treating physicians' findings as to the plaintiff's residual functional capacity.*fn2 (R. 76.)

The treating physician rule requires "deference to the views of the physician who has engaged in the primary treatment of the claimant" in determining the nature and severity of the claimant's impairment. Burgess v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008) (internal quotation marks omitted). "According to this rule, the opinion of a claimant's treating physician as to the nature and severity of the impairment is given 'controlling weight' so long as it 'is well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in the case record.'" Id. (quoting 20 C.F.R. ยง 404.1527(d)(2)) (internal alterations omitted). "[T]he opinion of the treating physician is not afforded controlling weight where . . . the ...

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