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Glenford S. Akey v. Michael J. Astrue

March 31, 2011


The opinion of the court was delivered by: Norman A. Mordue, Chief U.S. District Judge:



Plaintiff Glenford S. Akey brings the above-captioned action pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3) of the Social Security Act, seeking review of the Commissioner of Social Security's decision denying his application for Supplemental Security Income ("SSI") and Disability Insurance Benefits ("DIB"). This matter was referred to United States Magistrate Judge Victor E. Bianchini for a Report and Recommendation pursuant to 28 U.S.C. §636(b)(1)(B) and Local Rule 72.3(d). Magistrate Judge Bianchini recommended that this Court enter judgment on the pleadings affirming the Commissioner's decision denying disability and dismissing plaintiff's complaint. Presently before the Court is plaintiff's objection to the Report and Recommendation.*fn1


On October 26, 2005, plaintiff filed an application for SSI and DIB. (T. 21, 68-72, 350-53)*fn2 . Plaintiff was 43 years old at the time of his application and alleged an inability to work due to abnormal lungs, high blood pressure, a nervous condition, anxiety and depression. (T. 112).

Plaintiff's past employment included work as a bus driver and assembler. (T. 31). On February 23, 2006, plaintiff's application was denied and plaintiff requested a hearing by an ALJ which was held on December 13, 2007. (T. 35-43; 365-408). On February 14, 2008, the ALJ issued a decision and found at step one that plaintiff had not engaged in substantial gainful activity since his application for SSI and DIB. (T. 23). At step two, the ALJ determined that plaintiff's chronic obstructive pulmonary disease, anxiety disorder, alcohol dependence, resistant hypertension,

degenerative joint disease of both knees and diagnosis of "rule out" borderline intellectual functioning constituted severe impairments. (T. 23). At step three, the ALJ concluded that plaintiff's impairment neither met nor equaled any impairment listed in Appendix 1 of the Regulations. (T. 25). The ALJ next found that plaintiff retained the residual functional capacity to lift and carry up to ten pounds occasionally and less than ten pounds frequently, stand for a total of six hours in an eight hour work day, walk for two hours in an eight hour work day, sit for six hours in an eight hour work day, and noted that plaintiff should avoid respiratory irritants. (T. 27). The ALJ also found that plaintiff could perform unskilled and semi-skilled work and given his alcohol dependency, he should avoid environments where alcoholic beverages are normally available such as bars, restaurants and liquor stores. (T. 27). At step four, the ALJ concluded that plaintiff did not have the residual functional capacity to perform any of his past relevant work. (T. 31). The ALJ obtained the testimony of a vocational expert to determine whether there were jobs plaintiff could perform. Based upon the vocational expert's testimony, the ALJ concluded at step five, that plaintiff was capable of making a successful adjustment to work that exists in significant numbers in the national economy such as work as a an order clerk, new charge account clerk, and dispatcher of maintenance services. (T. 32). Therefore, the ALJ concluded that plaintiff was not under a disability as defined by the Social Security Act. (T. 32). On September 4, 2008, the Appeals Council denied plaintiff's request for review, making the ALJ's decision the final decision of the Commissioner. (T. 6). This action followed.

In the Report and Recommendation, Magistrate Judge Bianchini found that: (1) the ALJ's RFC assessment is supported by substantial evidence; (2) the hypothetical questions posed to the vocational expert were proper; and (3) the ALJ properly assessed plaintiff's credibility. The Magistrate Judge also concluded that because remand was not warranted, there was no need to address or re-open plaintiff's prior applications for benefits. (Dkt. No. 14).


A. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether plaintiff is disabled. Rather, the Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Curry v. Apfel, 209 F.3d 117, 122 (2d Cir. 2000) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971)). Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate's Report and Recommendation to which a party specifically objects. Failure to object timely to any portion of a Magistrate's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993);

Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989). To the extent, that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Watson v. Astrue, 2010 WL 1645060, at *1 (S.D.N.Y. 2010) (citing, inter alia, Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) ("Reviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition.") (citation and internal quotation marks omitted)).

Plaintiff objects to the Magistrate's Report and Recommendation on the following grounds:

(1) the Magistrate Judge erred when he found the ALJ's RFC assessment supported by substantial evidence; (2) the Magistrate Judge erroneously found that the vocational expert's testimony provided substantial evidence for a denial of benefits; (3) the Magistrate erred when he found that the ALJ's credibility assessment complied with the appropriate legal standards; and (4) on remand, plaintiff's prior application should be reopened and the matters should be consolidated. (Dkt. No. 15). Here, the Court has reviewed plaintiff's objections and compared the arguments made to the arguments presented before Magistrate Judge Bianchini in support of his motion. Plaintiff's arguments are identical. Accordingly, the Report and Recommendation will be reviewed for clear error. See Barney v. Consol. Edison Co. of New York, 2007 WL 952035, at *2 (E.D.N.Y. 2007).


A. Mental Impairments in RFC Assessment

Plaintiff argues that the ALJ's RFC assessment should have included plaintiff's mental limitations. (Dkt. No. 15, p. 2-5). Specifically, plaintiff claims that because the ALJ found

plaintiff's anxiety disorder to be a severe impairment, it should have been included in the RFC assessment.*fn3

Residual functional capacity is:

"what an individual can still do despite his or her limitations . . . . Ordinarily, RFC is the individual's maximum remaining ability to do sustained work activities in an ordinary work setting on a regular and

continuing basis, and the RFC assessment must include a discussion of the individual's abilities on that basis. A 'regular and continuing basis' means 8 hours a day, for 5 days a week, or an equivalent work schedule."

Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (quoting SSR 96-8p, Policy Interpretation Ruling Titles II and XVI: Assessing Residual Functional Capacity in Initial Claims ("SSR 96-8p"), 1996 WL 374184, at *2 (S.S.A. July 2, 1996)). In making a residual functional capacity determination, the ALJ must consider a claimant's physical abilities, mental abilities, symptomology, including pain and other limitations ...

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