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Ostrom v. Commissioner of Social Security

United States District Court, N.D. New York

April 16, 2015


PETER L. WALTON, ESQ., CONBOY, MCKAY, BACHMAN & KENDALL, LLP, Watertown, New York, Attorneys for Plaintiff.

SERGEI ADEN, ESQ., SOCIAL SECURITY ADMINISTRATION office of Regional General Counsel, New York, New York, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the Commissioner of Social Security's ("Commissioner") decision to deny her application for Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This matter was referred to United States Magistrate Judge Andrew T. Baxter for a Report-Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), familiarity with which is assumed. Magistrate Judge Baxter recommended that this Court reverse the Commissioner's decision denying Plaintiff's application for benefits and remand the case for a proper evaluation of the medical evidence and an appropriate determination of Plaintiff's residual functional capacity. See Dkt. No. 11. Presently before the Court are Defendant's objections to the Report-Recommendation. See Dkt. No. 12.


Plaintiff applied for a period of disability and DIB on June 2, 2011 and, thereafter, applied for SSI on June 21, 2011, alleging a disability onset date of February 1, 2009. See Dkt. No. 7, Administrative Transcript ("T."), at 130-38. The applications were initially denied on September 16, 2011, see id. at 79-84, and Plaintiff requested a hearing, which was held on October 22, 2012 before Administrative Law Judge ("ALJ") Marie Greener. See id. at 39-61. The ALJ issued a decision on November 13, 2012 finding that despite severe impairments - degenerative disc disease of the lumbar spine, anxiety disorder, and depressive disorder - Plaintiff was not disabled under the Social Security Administration's analysis pursuant to 20 C.F.R. §§ 404.1520; 416.920. See T. at 17-34. Request for review by the Appeals Council was timely filed, see id. at 14-16, and, on January 30, 2014, the request was denied rendering the ALJ's decision the Commissioner's final decision. See id. at 1-3. Plaintiff commenced this action for judicial review of that decision by filing a complaint on March 11, 2014. See Dkt. No. 1. Both parties have moved for judgment on the pleadings. See Dkt. No. 9, 10.


Magistrate Judge Baxter found that the ALJ's determination of Plaintiff's residual functional capacity ("RFC") is not supported by substantial evidence. See Dkt. No. 11. Specifically, there was not substantial evidence in the administrative transcript to support that Plaintiff has the RFC to perform light work as defined under 20 C.F.R. § 404.1567(b) because, as set forth by Magistrate Judge Baxter, the ALJ improperly discounted Plaintiff's treating physician - the only competent medical evidence related to Plaintiff's ability to lift, carry, stand, walk, and sit - and substituted her own judgment for that competent medical evidence. See Dkt. No. 11. According to Magistrate Judge Baxter, the ALJ, based upon her own medical judgment, concluded that Plaintiff's back condition had improved over time and that the clinical findings suggest that Plaintiff's back impairments do not cause her physical limitations. See id. Because of the ALJ's erroneous evaluation of the medical evidence, Magistrate Judge Baxter concluded that the evaluation of Plaintiff's credibility and the ultimate determination that Plaintiff is not disabled has been tainted. Magistrate Judge Baxter found that the ALJ's evaluation and disability analysis of Plaintiff's mental residual functional capacity to be support by substantial evidence.[1] Accordingly, it was recommended that the ALJ's decision be remanded for proper consideration of the medical evidence to be followed by a re-evaluation of Plaintiff's credibility and an analysis of Plaintiff's RFC related to her physical limitations. See id.

Defendant asserted in her filed objections that the Report-Recommendation has improperly shifted the burden from Plaintiff to Defendant when stating that "the ALJ marshaled no medical evidence" to support each and every functional area in the RFC. See Dkt. No. 12. Further, Defendant points to medical and non-medical evidence that supports the ALJ's findings and determination, including Plaintiff's daily activities, attending college classes, and participation in an exercise class during the period of alleged disability. See id. Substantial evidence, as it was argued by Defendant, does not mean that the Court's review of the evidence must lead to the ALJ's findings but, instead, that a review of the evidence could reasonably lead to those findings. See id. Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate Judge's Report and Recommendation to which a party specifically objects. Failure to timely object to any portion of a Magistrate Judge's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). "To the extent, ... that [a] party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Watson v. Astrue, No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22, 2010) (citing, inter alia, Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) (observing that "[r]eviewing courts should review a report and recommendation for clear error where objections 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") (citation and internal quotation marks omitted)).

Applying this standard of review, this Court has reviewed those portions of Magistrate Judge Baxter's Report-Recommendation that are not objected to and find that there is no clear error. The Court finds that Magistrate Judge Baxter is correct that substantial evidence supports the ALJ's determination of Plaintiff's mental limitations as set forth in the RFC, and the Court adopts those portions of the Report-Recommendation. However, based upon Plaintiff's objections, the Court has engaged in a fresh judicial review of the ALJ's decision that relates to Plaintiff's physical limitations due to her claimed impairment of degenerative disc disease, set forth below.

In a judicial review of a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine anew whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court must examine the administrative transcript to ascertain whether the correct legal standards were applied and whether the decision is supported by substantial evidence. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and it has been defined as "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted).

"To determine on appeal whether an ALJ's findings are supported by substantial evidence, a reviewing court considers the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Wilson v. Colvin, No. 6:14-cv-00122, 2015 WL 1472102, *4 (N.D.N.Y. Mar. 31, 2015). If supported by substantial evidence, the Commissioner's finding must be sustained. See Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). This Court must afford the Commissioner's determination considerable deference, and may not substitute its own judgment, even if a different result could be justifiably reached by the Court if it engaged in its own analysis. Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in 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. §§ ...

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