United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
PAULA. CROTTY, District Judge.
Plaintiff Ricardo Cruz brings this action pursuant to § 205(g) of the Social Security Act, 42 U.S.C. § 405(g), against Defendant Carolyn Colvin, the Commissioner of Social Security (the "Commissioner"), challenging her final decision to deny him Supplemental Security Income ("SSI") benefits. The parties cross-moved for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c). (Docket Nos. 11 & 15.) On July 2, 2013, Magistrate Judge Peck issued a Report & Recommendation ("R&R") recommending that the Court deny Commissioner's motion, and grant Cruz's motion for judgment on the pleadings to the extent that the case be remanded to the Commissioner.
On August 16, 2013, Defendant timely filed objections to Magistrate Judge Peck's R&R, arguing that: (1) the decision of Administrative Law Judge ("ALJ") Hornblass, who decided Cruz's case, contained sufficient reasoning to reject Cruz's statements regarding his symptoms and limitations that were inconsistent with the finding that claimant's residual functional capacity ("RFC") is not limited; (2) ALJ Hornblass properly applied the Commissioner's medical vocational guidelines to find that Cruz was not disabled; and (3) substantial evidence supports the Commissioner's determination.
In a response timely filed on August 30, 2013, Plaintiff argues that the Court adopt Magistrate Judge Peck's recommendation because: (1) ALJ Hornblass's analysis did not provide any specific reasons for finding Cniz's statements about his RFC not credible; (2) the ALJ made no finding regarding whether Plaintiffs non-exertional impairments significantly limited his occupational base, which would preclude use of the medical vocational guideline grids; and (3) the Commissioner's determination was based on an incomplete record.
For the reasons that follow, the Court adopts Magistrate Judge Peck's R&R. The case is remanded for further proceedings consistent with this Order Adopting Report and Recommendation.
A district 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). When a timely objection is made to the magistrate's recommendations, the court is required to review the contested portions de novo. Pizarro v. Bartlett, 776 F.Supp. 815, 817 (S.D.N.Y. 1991). The Court, however, "may adopt those portions of the [R&R] to which no objections have been made and which are not facially erroneous." La Torres v. Walker, 216 F.Supp.2d 157, 159 (S.D.N.Y. 2000).
In reviewing the Commissioner's application of the five step sequence to Cruz's disability claim, there is no dispute as to Step I (Cruz was not engaged in substantial gainful activity), Step 2 (Cruz demonstrated severe impairments that significantly limit his ability to do basic work activities), Step 3 (Cruz's disability was not listed in Appendix I of the regulations), and Step 4 (Cruz did not have the residual functional capacity to perform his past work). Since there are no disputes, and finding no clear error, the Court adopts these portions of Magistrate Judge Peck's R&R.
There are disputes, however, as to how credibility is to be determined, especially in connection with analyzing residual functional capacity; the weight to be given the opinion of one of Cruz's treating doctors; and how the medical vocational grids are to be utilized in Step 5 to ascertain what jobs are available that Cruz could perform.
A. ALJ Hornblass's Credibility and Residual Functional Capacity Assessment
In denying Cruz S SI benefits, ALJ Hornblass stated: "After careful consideration of the evidence, the undersigned finds that the claimant's medically determinable impairments could reasonably be expected to cause the alleged symptoms; however, the claimant's statements concerning the intensity, persistence and limiting effects of these symptoms are not credible to the extent they are inconsistent with the above residual functional capacity assessment." (Tr. 16.) In his opinion, ALJ Hornblass referred to evidence in the record to support his finding that the claimant has a residual functional capacity to perform a full range of sedentary work. The opinion fails, however, to provide an adequate assessment of why ALJ Homblass discredited Cruz's statements about his symptoms. Where an ALJ rejects testimony as not credible, the reasoning for the ALJ's finding "must... be set forth with sufficient specificity to permit intelligible plenary review of the record." Williams v. Bowen, 859 F.2d 255, 260-61 (2d Cir. 1988).
No such specificity exists here. There is an abundance of evidence in the record to support a finding that Cruz had a limited RFC, including, but not limited to: Cruz's reports that he had severe pain when he bent over or walked for a block (R. 219); Cruz's need for assistance with dressing (R. 220); Dr. Moussa's observations that Cruz could only squat halfway due to abdominal pain (R. 220) and that he had a reduced range of lumbar motion (R. 221-22); Dr. Lowe's observations of Cruz's limited range of motion (R. 237), chronic pain syndrome (R. 240), and other symptoms; the opinions of multiple mental health clinicians that Cruz has depression not otherwise specified and mood disorders (R. 338, 342 & 361; R. 367-68), which affect his concentration (R. 338; R. 367; R. 233; R. 443) and hence his capacity to do sedentary work; Dr. Branson and LSCSW Kennedy's opinions that Cruz had limited work capacity (R. 233; R. 423) and low energy (R. 338); and Dr. ...