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David Borus v. Michael J. Astrue

June 24, 2011

DAVID BORUS,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

USDC SDNY

ELECTRONICALLY FILED DOC #:

ORDER ADOPTING R&R

Pro se Plaintiff David Borus ("Plaintiff") commenced this action on May 20, 2009, challenging a final decision of the Commissioner of Social Security (the "Commissioner") denying his claim for disability benefits. Plaintiff moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c), requesting that the Court reverse the Commissioner's decision that he was not disabled under the Social Security Act (the "Act"), and to remand the case solely for the calculation of benefits. On April 13, 2011, Magistrate Judge Ellis issued his Report and Recommendation ("R&R") that the Court grant Plaintiff's motion and the case be remanded solely for the calculation of benefits. Having reviewed Magistrate Judge Ellis' R&R, the Court adopts the Report and Recommendation in its entirety. Accordingly, Plaintiff's motion is GRANTED and the case is remanded solely for the calculation of benefits.

BACKGROUND*fn1

Prior to December 3, 2004, Plaintiff worked at several firms as a stockbroker, trader, and trade support worker. In 2004, he began suffering from shooting pains in both of his legs that made it difficult for him to stand. On December 6, 2004, Plaintiff underwent back surgery which eliminated his leg pains but which left him with constant lower back and abdominal pain. Plaintiff was prescribed Oxycontin to treat the pain, which Plaintiff alleges caused constipation and hemorrhoids. In 2005, Plaintiff underwent carpal tunnel release surgery on his hands to correct "locked trigger thumb" and "double crush syndrome." On April 13, 2005, Plaintiff filed an application for disability insurance benefits with the Social Security Administration ("SSA"), alleging that he became disabled on December 6, 2004. Plaintiff's application was denied.

After Plaintiff's application was denied, he requested a hearing before an administrative law judge ("ALJ"). The hearing was held on December 11, 2006, and on February 19, 2006, the ALJ issued an opinion, finding that Plaintiff was not entitled to disability benefits under the Act. The ALJ held that Plaintiff was capable of performing sedentary work, that the subjective symptoms reported by Plaintiff were inconsistent with his medical records, and that no clinical or test findings existed to support Plaintiff's claimed inability to work following his surgery. Plaintiff submitted additional treatment reports to the Appeals Council, which denied his request for review on March 16, 2009. Plaintiff commenced this action on May 20, 2009, and the Court referred the case to Magistrate Judge Ellis on June 2, 2009.

Magistrate Judge Ellis issued his R&R on April 13, 2011, recommending that the Court grant Plaintiff's motion for a judgment on the pleadings and that the case be remanded solely for the calculation of benefits. Magistrate Judge Ellis reviewed the evidence in the administrative record and found the ALJ should have given controlling weight to the opinions of Plaintiff's treating physicians, that the ALJ may not arbitrarily substitute their own judgment for that of a treating physician, and that the ALJ's use of the Medical Vocational Guidelines to determine Plaintiff's work capacity was improper. No objections to the R&R were filed by either party.

DISCUSSION

In reviewing an R&R, a 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)(C). "To accept the report and recommendation of a magistrate, to which no timely objection has been made, a district court need only satisfy itself that there is no clear error on the face of the record." Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985) (citations omitted).

A reviewing court does not assess the question of whether a claimant is disabled de novo. Prattis v. Chater, 94 F.3d 34, 37 (2d Cir. 1996). Instead, the Court must consider whether the Commissioner applied the correct legal standard in coming to its decision and, if so, whether the decision was supported by substantial evidence in the record. Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). If the ALJ applied the wrong legal standard or the ALJ's decision was not supported by substantial evidence, the ALJ's decision should be reversed. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). Substantial evidence 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) (citation omitted).

Plaintiff asserts three grounds for reversal of the Commissioner's rejection of his application for disability benefits. First, Plaintiff argues the ALJ's finding that Plaintiff's adrenal insufficiency, rectal problems, and hand problems were not severe was incorrect. (R&R 12.) Second, Plaintiff claims that the ALJ's conclusion that Plaintiff could perform sedentary work was not supported by substantial evidence because the ALJ failed to properly take into account the opinions of Plaintiff's treating physicians. (Id.) Third, Plaintiff contends that the ALJ's use of the Medical Vocational Guidelines to determine that Plaintiff could perform work other than his past work as a stockbroker was inappropriate. (Id.)

"Under the Act, every individual who has a disability is entitled to disability insurance benefits." 42 U.S.C. § 423(a)(1). To determine whether an individual is disabled under the Act, the Commissioner must conduct a five-step inquiry: (1) determine whether the claimant is engaged in any substantial gainful activity; (2) if so, determine whether the claimant has a "severe impairment" which significantly limits his ability to work; (3) if so, determine whether the impairment is one of the conditions for which the Commissioner presumes disability; (4) if not, determine whether the claimant is able to perform his past work despite the disability; and (5) if not, determine whether the claimant can perform other work." (R&R 10 (citing Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).)

The ALJ determined that Plaintiff's adrenal insufficiency, rectal problems, and hand issues were not severe, and Magistrate Judge Ellis found that this determination was supported by substantial evidence. (R&R 13.) Specifically, Magistrate Judge Ellis found that the adrenal insufficiency condition predated the onset of plaintiff's alleged disability and had not prevented plaintiff from working. (Id.) Plaintiff also testified that both his hand surgeries were successful, and there were no medical records indicating continued problems with either hand. (Id.) Finally, although the record indicates that Plaintiff's rectal problems caused him pain and discomfort, it does not establish that Plaintiff was significantly limited by the condition. (Id. 14) ...


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