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Torres v. Colvin

United States District Court, S.D. New York

September 8, 2014

HIRAM TORRES, Plaintiff,
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


ANDREW L. CARTER, Jr., District Judge.


Plaintiff Hiram Torres commenced this action under 42 U.S.C. § 405(g) seeking review of a final decision by Defendant Commissioner of Social Security Carolyn Colvin ("Commissioner"), denying his claim for social security disability benefits. Plaintiff applied for social security income and disability insurance benefits on August 19, 2009 with a date of alleged onset listed as September 11, 2001. Plaintiff claims his psychiatric problems render him unable to work. After the parties fully submitted their papers on the Motion for Judgment on the Pleadings made by the Commissioner, Magistrate Judge Sarah Netburn issued a Report and Recommendation ("R&R"). Upon a de novo review of the portions of the R&R to which Plaintiff objects, the Court adopts Magistrate Judge Netburn's R&R in its entirety.


The facts of this case are set forth in detail in the R&R, and the Court assumes familiarity therewith.

On June 20, 2013, the Commissioner filed a Motion for Judgment on the Pleadings under Rule 12(c) of the Federal Rules of Civil Procedure. (Dkt. No. 21.) Judge Swain was initially assigned to this case and referred the matter to Magistrate Judge Netburn for a R&R. (Dkt. No. 7.) On December 13, 2013, Magistrate Judge Netburn issued a comprehensive R&R, recommending the Commissioner's Motion be granted because substantial evidence in the record supported the ALJ's findings that Plaintiff was not disabled and was not entitled to benefits. (Dkt. No. 29.)

The R&R was adopted on January 22, 2014 after neither party submitted objections by the December 30, 2013 deadline. (Dkt. No. 30.) On January 27, 2014, Plaintiff requested an extension of time to submit objections, claiming he never received the R&R. (Dkt. No. 31.) The Court granted Plaintiff an extension to file objections until February 11, 2014. (Dkt. No. 32.) That day. Plaintiff, proceeding pro se at the time, submitted his objections and requested pro bono counsel. (Dkt. Nos. 33, 34.) The Commissioner subsequently filed a response to Plaintiff's objections. (Dkt. No. 36.)

Pro bono counsel was appointed on February 27, 2014, and newly-appointed counsel requested permission to file supplemental objections on Plaintiff's behalf. (Dkt. Nos. 40, 41.) The Court granted the request, and Plaintiff filed supplemental objections on April 4, 2014. (Dkt. Nos. 42, 43.) The Commissioner responded on July 7, 2014. (Dkt. No. 49.) The Court considers Plaintiff's initial and supplemental objections in reviewing the R&R.


First, Plaintiff contends the ALJ's finding that he was engaged in substantial gainful activity ("SGA") is erroneous because the evidence demonstrating SGA was falsified by his psychotherapist. Specifically, Plaintiff claims his therapist told him that "his methadone pick-up schedule could be changed to one time per week if he worked." (Pl.'s Supp. Objs. 11.) Next, Plaintiff claims although the ALJ agreed his impairments were severe, the ALJ erred in finding his impairments did not medically equal the impairments found in the regulations. In making that finding. Plaintiff maintains the ALJ disregarded the treating physician rule. Lastly, Plaintiff opposes the ALJ's findings that he could perform his prior relevant work or comparable jobs in the economy based on his residual functional capacity.

The Commissioner contends it was Plaintiff's burden to establish that he was no longer engaged in SGA, and he failed to meet that burden. Additionally, Plaintiff's supplemental declaration, which he submitted to rebut the contention that he had been working during the time he was applying for benefits, "contain[ed] many references to information outside the administrative record, without citation, including many references to current information, never considered by the ALJ." (Gov't's Opp. to Pl.'s Supp. Objs. 9 n.4.) The Commissioner contends Plaintiff has not established just cause for the inclusion of this new evidence, and it is not sufficiently probative to warrant a remand for further proceedings. The Commissioner also argues the ALJ properly determined Plaintiff's conditions failed to meet the criteria of a regulations-level impairment by weighing the opinions of treating and consultative physicians with all of the evidence in the record. Finally, the Commissioner claims the ALJ properly found Plaintiff was able to perform past relevant work or other work in the economy using the testimony of a vocational expert.


A. Standard of Review

In deciding whether to adopt a R&R, "the Court makes a de novo determination of those portions of the report... to which objection is made' and may accept, reject, or modify, in whole or in part, the findings and recommendations of the magistrate." Artenberg v. Comm'r of Soc. Sec, No. 04 Civ. 4506 (RMB)(THK), 2006 WL 59558, at *1 (S.D.N.Y. Jan. 10, 2006) (quoting Grassia v. Scully , 892 F.2d 16, 19 (2d Cir. 1989)). When reviewing portions of a R&R that have not been objected to, a district court need only satisfy itself that no clear error was made. Terio v. Michaud, No. 10 Civ. 4276 (CS), 2011 WL 868661, at *1 (S.D.N.Y. Mar. 10, 2011).

At the outset, the Commissioner contends Plaintiff's objections contest the findings of the ALJ, not the magistrate judge. (Gov't's Opp. to Pl.'s Supp. Objs. 6.) Consequently, Plaintiff made no specific objections to the R&R, and it should therefore be evaluated solely for clear error. (Id.) The Court finds this argument unpersuasive and conducts a de novo review of those portions of the R&R to which Plaintiff objects.

The Commissioner's findings regarding the disability of a claimant are given deference, and the district court's review of the Commissioner's decision is limited to establishing whether the determination is supported by "substantial evidence" in the record. 42 U.S.C. § 405(g); see also Hopkins v. Colvin, No. 13 Civ. 4803 (AT)(AJP), 2014 WL 2526837, at *11 (S.D.N.Y. June 5, 2014) ("[T]he role of the district court is quite limited and substantial deference is to be afforded the Commissioner's decision."). Substantial evidence means "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion[, ]" which must be "more than a mere scintilla." Talavera v. Astrue , 697 F.3d 145, 151 (2d Cir. 2012) (quoting Richardson v. Perales , 402 U.S. 389, 401 (1971))). "If substantial evidence supports the Commissioner's decision, then it must be upheld, even if substantial evidence also supports the contrary result." Ventura v. Barnhart, No. 04 Civ. 9018 (NRB) , 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21, 2006) (citing Alston v. Sullivan , 904 F.2d 122, 126 (2d Cir. 1990).

B. Analysis

To qualify for Social Security benefits, a claimant must prove "disability, " which is defined as the "inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months[.]" 42 U.S.C. § 423(d)(1)(A). A claimant is considered disabled if his or her physical and/or mental impairment prevents him ...

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