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Podolsky v. Colvin

United States District Court, S.D. New York

March 31, 2014

TERRENCE PODOLSKY, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM OPINION AND ORDER

RONNIE ABRAMS, District Judge.

Plaintiff Terrence Podolsky applied for a period of disability, disability insurance benefits, and supplemental security income from the Social Security Administration, alleging disability beginning May 2, 2008. The Commissioner of Social Security ("Commissioner") denied his application. Podolsky brings this action pursuant to 42 U.S.C. § 405(g) and 1383(c)(3) to obtain judicial review of the Commissioner's decision. The parties have moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c).

Before the Court is the September 26, 2013 Report and Recommendation ("Report") of Magistrate Judge James L. Cott, which recommends that the Court deny Podolsky's motion and grant the Commissioner's cross-motion, as well as Podolsky's timely filed objections.

For the reasons set forth below, the Court adopts the thorough and well reasoned Report. Accordingly, Podolsky's motion for judgment on the pleadings is denied, and the Commissioner's cross-motion is granted.

ST AND ARD OF REVIEW

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)(l)(C). "The district court may adopt those portions of a report and recommendation to which no objections have been made, as long as no clear error is apparent from the face of the record." Francis v. A & E Stores, Inc., No. 06 Civ. 1638 (CS) (GAY), 2008 WL 4619858, at * 1 (S.D.N.Y. Oct. 16, 2008). "[R]eview under the clearly erroneous' standard is significantly deferential, requiring a definite and firm conviction that a mistake has been committed.'" Concrete Pipe & Products of California, Inc. v. Constr. Laborers Pension Trust for S. California, 508 U.S. 602, 623 (1993).

Where a party makes specific objections to a report and recommendation, however, the district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(l)(C); see also Fed.R.Civ.P. 72(b)(3). "[O]bjections that are merely perfunctory responses argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition will not suffice to invoke de nova review of the magistrate's recommendations." Vega v. Artuz, No. 97 Civ. 3775 (LTS) (JCF), 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002).

"A district court may set aside the Commissioner's determination that a claimant is not disabled only if the factual findings are not supported by substantial evidence' or ifthe decision is based on legal error." Shaw v. Chater, 221 F.3d 126, 131 (2d Cir. 2000) (quoting 42 U.S.C. § 405(g)). The substantial evidence standard is "a very deferential standard of review-even more so than the clearly erroneous' standard"-and permits the Court to reject the ALJ's factual findings "only if a reasonable factfinder would have to conclude otherwise."' Brault v. Soc. Sec. Admin., Com'r, 683 F.3d 443, 448 (2d Cir. 2012) (quoting Warren v. Shalala, 29 F.3d 1287, 1290 (8th Cir.1994)).

DISCUSSION

A. Podolsky's Use of a Cane

Podolsky's primary objection to the Report is that "the Magistrate incorrectly states that there was no proof that Mr. Podolsky's use of a cane was medically necessary for walking or that it was required other than for prolonged ambulation." (Pl. Obj. 3.) His argument appears to be that Podolsky's reliance on his cane demonstrates that he does not have "the capacity to perform the standing and walking required of sedentary work" and that, in conjunction with the "limitations in the use of his right arm, " the cane "limits the sedentary occupational base" available to him. (Id. at 5, 6.) This objection and its subsidiary arguments are unavailing.

1. Medical Necessity

According to the Report, "[t]he record does not reflect that Podolsky's use of a cane was medically necessary except for prolonged ambulation." (Report 29.) In objecting to this conclusion, Podolsky relies on evidence that his treating physician, Dr. Arnold Wilson, recommended that Podolsky use a cane. Although he never explicitly stated that it was medically necessary, on April 3, 2008, Dr. Wilson wrote that Podolsky "is to continue ambulating with a cane and will continue to work." (Administrative Record ("AR") 401.) Dr. Wilson did not advise Podolsky further on his use of the cane until April 23, 2009, when he wrote, "I have encouraged the patient to gradually stop using his cane." (Id. at 387.) The only other doctor to recommend a cane was Dr. Louis Tranese, who reported on February 15, 2011 that "[i]n [his] opinion, [the cane] [wa]s medically necessary at this time only for long distance community ambulation." (Id. at 564.)

Social Security Ruling ("SSR") 96-9p provides guidance concerning, among other things, "[m]edically required hand-held assistive device[s]." SSR 96-9p, 1996 WL ...


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