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Febo v. Colvin

United States District Court, S.D. New York

March 14, 2014

DORIS FEBO, Plaintiff,
v.
CAROLYN W. COLVIN, COMMISSIONER OF SOCIAL SECURITY, Defendant.

ORDER ADOPTING REPORT & RECOMMENDATION

PAUL A. CROTTY, District Judge.

Plaintiff Doris Febo brings this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c), seeking judicial review of a final decision of Carolyn Colvin, the acting Commissioner of Social Security[1] (the "Commissioner") denying her application for Disability Insurance and Supplemental Security Insurance ("SSI") benefits. Febo moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure and, in the alternative requests remand to the Commissioner for further proceedings. (Docket No. 11.) The Commissioner cross-moves for judgment on the pleadings pursuant to Rule 12(c). (Docket No. 14.)

On November 14, 2012, this matter was referred to Magistrate Judge Sarah Netburn for purposes of general pretrial and dispositive motions. Upon consideration of the parties' cross-motions, Magistrate Judge Netburn issued a Report and Recommendation ("R&R") on September 4, 2013, recommending denial of the Commissioner's motion for judgment on the pleadings, and granting Plaintiff's motion to remand the case to the Commissioner for proper application of the treating physician rule. Specifically, Magistrate Judge Netburn found the Administrative Law Judge's ("ALJ") application of the treating physician rule suffered from several related errors necessitating remand: (1) the ALJ's decision that the treating physician's opinion was not entitled to controlling weight was not supported by substantial evidence; (2) in deciding that the treating physician's opinion was not controlling, the ALJ did not properly apply the six-factor test required by the regulations; and (3) the ALJ improperly assessed the weight of the consultative physicians' opinions. (R&R at 23.) Magistrate Judge Netburn also found that (1) "the ALJ committed legal error in assessing Febo's credibility" (R&R at 34); and (2) "[a]fter clarification and development of the record upon remand, the testimony of a vocational expert may be necessary." (R&R at 35.) Since Magistrate Judge Netburn concluded that the ALJ committed legal errors requiring remand, she did not reach the ultimate question of whether the ALJ's decision was supported by substantial evidence. (R&R at 37.)

Defendant objected to Magistrate Judge Netburn's R&R: (1) the ALJ was not required to address each factor listed in 20 C.F.R. §§ 404.1527(c), 416.927(c), 416.927(c) in his determination of the weight to be given to the Plaintiff's treating physician; (2) the ALJ properly gave little weight to the Plaintiff's treating physician because the ALJ addressed relevant facts and found that Dr. Clair's opinion was inconsistent with the rest of the record; (3) the ALJ properly gave great weight to the state agency medical consultant and consultative examiner as per SSR 96-6p; and (4) the ALJ properly evaluated the Plaintiff's credibility after considering the entirety of the record. Plaintiff responded to Defendant's Objections urging the Court to adopt Magistrate Judge Netburn's R&R.

For the reasons that follow, the Court adopts Magistrate Judge Netburn's R&R in its entirety. The case is remanded for further proceedings consistent with this Order Adopting Report and Recommendation.

D1SCUSSION[2]

I. Standard

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).

II. Analysis

In reviewing the Commissioner's application of the five step sequence to Plaintiff's disability claim, there is no dispute as to Steps 1 to 3. Since there are no objections, and finding no clear error, the Court adopts these portions of Magistrate Judge Netburn's R&R.

There are disputes, however, as to the weight to be given to Plaintiff's treating physician; the weight to be given to the state agency medical consultant and consultative examiner; and how credibility is to be determined, especially in connection with analyzing claimant's residual functional capacity at Step 4. These determinations in turn affect Step 5.

A. ALJ Axelsen's Assessment of Dr. Clair's Opinion

Defendant objects to the R&R, arguing that the ALJ properly evaluated the medical opinion of Dr. Clair, one of Plaintiff's treating physicians. Defendant asserts that no mandatory recitation of each factor[3] is required where the ALJ's reasoning and adherence to the regulations are clear. Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013). It is not evident from the ALJ's opinion, however, that these factors were considered. While no complete recitation is required, the ALJ should have more explicitly addressed how the factors listed in 20 C.F.R. § 404.1527 led to his determination.

Defendant also objects to Magistrate Judge Netburn's finding that there was no substantial evidence to support the ALJ's decision that the treating physician's opinion was not entitled to controlling weight. (Def.'s Obj. at 4.) Where an ALJ does not credit the findings of a treating physician, the claimant is entitled to an explanation of that decision. Snell v. Apfel, 177 F.3d 128, 134 (2d Cir. 1999). Additionally, 20 C.F.R. § 404.1527(c)(2) requires the Commissioner to "always give good reasons in [its] notice of determination or decision for the weight [it] give[s] [a party's] treating ...


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