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Owusu v. Astrue

August 13, 2009

MAXWELL OWUSU, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY,*FN1 DEFENDANT.



The opinion of the court was delivered by: Kenneth M. Karas, District Judge

ORDER ADOPTING REPORT & RECOMMENDATION

Plaintiff Maxwell Owusu ("Plaintiff") brings this action against the Commissioner of Social Security ("Commissioner") pursuant to 42 U.S.C. § 405(g), seeking review of the decision of an administrative law judge ("ALJ") to deny Plaintiff's application for disability insurance benefits. The Commissioner moves for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c), and Plaintiff cross-moves for the same. Judge Colleen McMahon, to whom this case was originally assigned, referred the motions to Magistrate Judge Mark D. Fox, who issued a Report and Recommendation ("R&R") concluding that judgment should be granted for the Commissioner and the case dismissed.*fn2 Plaintiff filed objections ("Obj.") to the R&R, which the Court considers here.*fn3

I. Discussion

A. Standard of Review

A district court reviewing a report and recommendation addressing a dispositive motion "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); see also Donahue v. Global Home Loans & Fin., Inc., No. 05-CV-8362, 2007 WL 831816, at *1 (S.D.N.Y. Mar. 15, 2007). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written," Fed. R. Civ. P. 72(b)(2), and must be made "[w]ithin 10 days after being served with a copy of the recommended disposition," id.; see also 28 U.S.C. § 636(b)(1).

Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(3); Donahue, 2007 WL 831816, at *1. The district court "may adopt those portions of the . . . report [and recommendation] to which no 'specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." Eisenberg v. New England Motor Freight, Inc., 564 F. Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)).

Here, Plaintiff has objected to Magistrate Judge Fox's conclusion that the ALJ's determination was supported by substantial evidence and properly applied the law, and also objected to Magistrate Judge Fox's denial of Plaintiff's request to remand the case to further develop the record. Thus, the Court reviews de novo the issues specifically raised in the objections, while examining for clear error only the remainder of the R&R. See Wilds v. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169-70 (S.D.N.Y. 2003) (citing 28 U.S.C. §636(b)).

When a claimant seeks review of a Social Security hearing regarding disability benefits, the court's function is not to determine whether the appellant is disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) ("[I]t is not our function to determine de novo whether [plaintiff] is disabled." (internal quotation marks omitted) (second alteration in original)); Riordan v. Barnhart, No. 06-CV-4773, 2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007) (same); Van Dien v. Barnhart, No. 04-CV-7259, 2006 WL 785281, at *8 (S.D.N.Y. Mar. 24, 2006) ("The court is not permitted to determine whether the claimant is disabled de novo."). Rather, the Court determines only "whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (noting that a court will only overturn an ALJ's determination if it is "based upon legal error" or "not supported by substantial evidence" (internal quotation marks omitted)); Morel v. Massanari, No. 01-CV-186, 2001 WL 776950, at *5 (S.D.N.Y. July 11, 2001) ("[T]he role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision." (internal quotation marks omitted)). The Supreme Court has defined "substantial evidence" as "more than a mere scintilla . . . [and] such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal quotation marks omitted); accord Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) ("Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." (internal quotation marks omitted)).

"To be 'disabled' . . . and therefore entitled to benefits, a claimant must demonstrate an 'inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months.'" Rosa, 168 F.3d at 77 (quoting 42 U.S.C. § 423(d)(1)(A)). "Furthermore, an individual's impairment must be 'of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.'" Id. (quoting 42 U.S.C. § 423(d)(2)(A)). To determine whether a claimant is entitled to disability benefits, the ALJ must follow the familiar five-step sequential analysis. See 20 C.F.R. § 404.1520(a)(1); Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 1999). The ALJ initially must determine whether the claimant is currently engaged in substantial gainful work. See 20 C.F.R. § 404.1520(a)(4)(i); id. § 404.1520(b); Peterson v. Barnhart, 219 F. Supp. 2d 491, 493 (S.D.N.Y. 2002). If the claimant is not so engaged, the ALJ considers whether the claimant has a severe impairment that limits the claimant's ability to participate in work-related activities. See 20 C.F.R. § 404.1520(a)(4)(ii); id. § 404.1520(c); Williams, 204 F.3d at 49. If so, the ALJ determines whether the impairment is listed in 20 C.F.R. § 404.1520, Part 404, Subpart P, Appendix 1, and, if it is, disability is presumed, and the claimant is considered unable to perform substantial gainful activity. See 20 C.F.R. § 404.1520(a)(4)(iii); id. § 404.1520(d). If the impairment does not meet or equal the criteria of a listed impairment, the ALJ must determine whether the claimant retains functional capacity to perform her past work. See 20 C.F.R. § 404.1520(a)(4)(iv); id. § 404.1520(e). Where a claimant is thereafter deemed unable to perform the claimant's past work, the ALJ proceeds to the fifth step, which "requires the [ALJ] to determine whether there is other work within the national economy that the [claimant] is qualified to perform." Peterson, 219 F. Supp. 2d at 493; see also 20 C.F.R. § 404.1520(a)(4)(v); id. § 404.1520(f)-(g) (noting that ALJ must show that there are other jobs existing based on the claimant's vocational factors, which include age, education, and work experience, as well as the claimant's residual functional capacity). If so, then the ALJ will determine that the individual is not disabled. See 20 C.F.R. § 404.1520(a)(4)(v) ("If you can make an adjustment to other work, we will find that you are not disabled. If you cannot make an adjustment to other work, we will find that you are disabled."). The claimant has the burden of proof for the first four steps, but the burden rests with the Commissioner as to the fifth step -- the determination on alternative work. See Peterson, 219 F. Supp. 2d at 493; see also Bowen v. Yuckert, 482 U.S. 137, 146 n.5 (1987) (noting that Commissioner is required to bear burden of proof at step five "only if the sequential evaluation process proceeds to the fifth step"; for instance, "[i]f the process ends at step two, the burden of proof never shifts").

B. Analysis

The Court adopts the thorough recitation of facts set forth by Magistrate Judge Fox (R&R 1-11) and assumes the Parties' familiarity with the R&R, repeating only those facts relevant to the narrow objections raised by Plaintiff.*fn4

In his cross-motion for judgment on the pleadings, Plaintiff argues that the ALJ did not meet his burden of proving that Plaintiff could perform other jobs in the national economy in the fifth step of his analysis to determine whether Plaintiff was entitled to disability benefits. Reaching the fifth step, the ALJ considered the opinions of a vocational expert, the treating physicians and consulting physicians, the other medical evidence, and Plaintiff's testimony. (Government's Administrative Record ("AR") 11-17.) The ALJ relied substantially on the reports of Dr. Jerry Lovelace*fn5 and the report and testimony of the vocational expert and determined that Plaintiff could obtain work as a surveillance systems monitor. (Id.)

Plaintiff's Objections to the R&R rehash his argument that the ALJ's fifth-step determination, wherein the burden of proof rested with the ALJ, was not supported by the evidence. (Obj. 1) First, Plaintiff argues that the vocational expert testified that Plaintiff could not perform the job of surveillance systems monitor if Plaintiff could not sit for more than two hours and took naps every day, and therefore that the ALJ should have found that Plaintiff could not perform this job as a result of this testimony. (Id.) Second, Plaintiff argues that the ALJ did not properly credit Plaintiff's testimony, which Plaintiff characterizes as stating that he needed to nap during the day. (Id.) Plaintiff acknowledges that the medical records do not indicate that Plaintiff could not sit for more than two hours or that Plaintiff would need to take naps during the day. (Id.) However, Plaintiff argues that common sense would dictate that if Plaintiff has to stand up every twenty minutes or so, he must not be able to sit for more than two hours in a work day. (Id.) Further, Plaintiff argues that his testimony should be credited with respect to his need to take naps because this is information the ALJ should have elicited but did not. (Id.) Therefore, Plaintiff argues that the ALJ erred in determining that Plaintiff could perform the job of a surveillance systems monitor.

With regard to Plaintiff's first objection, in a Multiple Impairment Questionnaire that Dr. Lovelace completed in relation to Plaintiff's disability benefits claim, he stated that it would be necessary or medically recommended for Plaintiff not to sit continuously in a work setting. (AR 232.) Dr. Lovelace specifically indicated that, if Plaintiff were sitting, he would have to get up and move around every twenty minutes throughout the day, and that Plaintiff would have to wait five minutes before he could sit again. (Id.) In addition, Dr. Lovelace stated that Plaintiff would sometimes need to take unscheduled breaks at unpredictable intervals during an eight-hour ...


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