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Sears v. Colvin

United States District Court, Second Circuit

December 12, 2013

DAVID SEARS, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, in place of Michael Astrue, Defendant.

MARK A. SCHNEIDER, ESQ., OFFICE OF MARK A. SCHNEIDER, Plattsburgh, New York, Attorneys for Plaintiff.

JOANNE JACKSON, ESQ., SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel, Region II, New York, New York, Attorneys for Defendant.


MAE A. D'AGOSTING, District Judge.


Plaintiff David Sears brought this action pursuant to 42 U.S.C. § 405(g), seeking a review of the Commissioner of Social Security's decision to deny his application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). The matter was referred to United States Magistrate Judge Andrew T. Baxter for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Magistrate Judge Baxter recommended that this Court affirm the Commissioner's decision denying Plaintiff's application for benefits and dismiss Plaintiff's complaint. See Dkt. No. 16. Presently before the Court is Plaintiff's objection to the Report and Recommendation, see Dkt. No. 17, and Plaintiff's letter motion seeking remand based upon a fully favorable decision rendered by the Commissioner on Plaintiff's subsequent application for DIB and SSI, see Dkt. No. 18.


A. Procedural History

Plaintiff applied for DIB and SSI on April 29, 2009, alleging a disability onset date of December 20, 2008, which applications were initially denied on November 18, 2009. Plaintiff requested a hearing, which was held on September 22, 2010 before Administrative Law Judge ("ALJ") Carl E. Stephan. The ALJ issued his decision on October 28, 2010, finding that despite severe impairments - chronic obstructive pulmonary disease ("COPD") and rheumatoid arthritis - Plaintiff was not disabled.

On January 27, 2012, Plaintiff's counsel submitted to the Appeals Council medical records from Adirondack Medical Center dated October 4, 2010 through January 20, 2012. These records, which were not part of the record before ALJ Stephan, included reports from examinations conducted between August and November of 2011 by Plaintiff's treating physician and a treating rheumatologist who ultimately diagnosed Plaintiff with fibromyalgia. The ALJ's decision became the final decision of the Commissioner on March 9, 2012, when the Appeals Council denied Plaintiff's request for review, notwithstanding the submission of additional evidence.

On March 29, 2012, Plaintiff filed a subsequent application for DIB and SSI alleging a disability onset date of August 30, 2011. On August 8, 2013 ALJ Robert Wright issued a decision on Plaintiff's subsequent application, finding Plaintiff disabled from August 30, 2011, through the date of the decision, by virtue of the following severe impairments: COPD, fibromyalgia, degenerative disc disease of the cervical spine, osteoarthritis of the left shoulder and hands, and coronary artery disease. See Dkt. 18-1.[2]

B. Report and Recommendation

In the Report and Recommendation, Magistrate Judge Baxter found that: (1) the ALJ did not misapply the treating physician rule and the ALJ's decision to reject Dr. McCahill's finding of total disability was supported by substantial evidence; (2) the ALJ made findings with respect to residual functional capacity ("RFC") that were supported by substantial evidence and, in doing so, the ALJ did not err in (a) failing to consider the combination of Plaintiff's ailments, (b) finding Plaintiff's testimony to lack credibility, (c) determining that Plaintiff was not disabled because he was not treated by specialists, and (d) disregarding the side effects of Plaintiff's medications; (3) the ALJ did not err by not using a vocational expert to determine whether Plaintiff could perform other work in the national economy; (4) the ALJ did not fail to fully develop the record; and (5) the Appeals Council did not err when it failed to consider and analyze the additional evidence submitted after the ALJ's hearing, or find that Plaintiff was disabled by fibromyalgia. See Dkt. No. 16.

Plaintiff has objected to the Report and Recommendation on a number of grounds:

I. The ALJ erred in not liberally applying the Social Security Act.
II. The Magistrate [Judge][3] did not correctly apply the treating physician rule.
III. The Magistrate [Judge] did not correctly apply the law regarding the credibility of the Plaintiff.
IV. The Magistrate [Judge] erroneously determined that Plaintiff had the RFC to perform light work.
V. The Magistrate [Judge] did not fairly consider Plaintiff's limitations from his COPD ...

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