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Susan May Farley v. Commissioner of Social Security


September 12, 2011


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



This action brought pursuant to the Social Security Act ("the Act"), 42 U.S.C. §§ 405(g), 1383(c)(3), was referred by this Court to the Hon. Andrew T. Baxter, United States Magistrate Judge, for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule N.D.N.Y. 72.3(d). Magistrate Judge Baxter's Report-Recommendation dated April 23, 2010 recommends that the decision of the Commissioner be reversed, and that the case be remanded for further proceedings pursuant to sentence four of 42 U.S.C. § 405(g) "for a proper determination of plaintiff's residual functional capacity and a proper consideration of plaintiff's credibility." See Rep.-Rec., p. 29 [dkt. # 14]. Defendant has filed objections to the Report-Recommendation, arguing that the Administrative Law Judge ("ALJ") properly determined Plaintiff's residual functional capacity ("RFC") and properly assessed Plaintiff's credibility.


When objections to a magistrate judge's report and recommendation are lodged, the district court makes a " de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." See 28 U.S.C. § 636(b)(1)(C). Portions of the Report and Recommendation to which no objections are lodged are reviewed for clear error or manifest injustice. After this review, the Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge. The judge may also receive further evidence or recommit the matter to the magistrate judge with instructions." 28 U.S.C. § 636(b)(1)(C).


With regard to Plaintiff's residual functional capacity ("RFC"), there was conflicting evidence presented at the hearing as to Plaintiff's ability to perform light or sedentary work. Indeed, as Defendant points out in its appellate brief, Dr. Shayevitz's *fn1 clinical findings supported the ALJ's RFC determination, Tr. 213, *fn2 but his medical opinion was that Plaintiff experienced marked and moderate limitations. Tr. 214. The ALJ failed to fully address this inconsistency, and the ALJ made ambiguous reference to the "State Agency's expert medical doctors and other expert consultants who determined that Plaintiff could perform light work." Furthermore, as discussed below, the ALJ summarily discounted Plaintiff's complaints of on-going debilitating pain in determining that she was not disabled from employment. The Court finds Magistrate Judge Baxter properly concluded that "[t]he ALJ simply did not perform a function-by-function analysis, and the analysis that he did perform was not supported by substantial evidence." Rep-Rec., p. 26. A remand is required to resolve this issue.

Moreover, for the reasons discussed at pages 27-29 of the Report-Recommendation, the Court agrees with Magistrate Judge Baxter's conclusion that the ALJ did not properly assess Plaintiff's credibility regarding her subjective complaints of pain. Where a claimant alleges symptoms of a greater severity of impairment than can be shown by objective medical evidence, other evidence should be considered, including claimant's daily activities and the medications, methods and treatments used to alleviate her symptoms. See 20 C.F.R. § 404(c)(3). While facts and circumstances may exist which support the ALJ's determination to discount Plaintiff's complaints, see Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979)("The ALJ has the discretion to evaluate the credibility of a claimant and to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant."); Aponte v. Secretary, Dep't of Health & Human Services, 728 F.2d 588, 591 (2d Cir. 1984)(If the ALJ's credibility findings "are supported by substantial evidence, the court must uphold the ALJ's decision to discount a claimant's subjective complaints of pain."), they were not fully articulated. See Rep.-Rec., pp. 28; *fn3 28-29. *fn4 Therefore, the matter must be remanded to address this issue as well.


For the reasons discussed above, the Court ADOPTS Magistrate Judge Baxter's Report-Recommendation. The Commissioner's decision is REVERSED , and this case is REMANDED , pursuant to sentence four of 42 U.S.C. § 405(g), for a proper determination of Plaintiff's residual functional capacity and a proper consideration of plaintiff's credibility.


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