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Gabrielsen v. Colvin

United States District Court, S.D. New York

July 30, 2015

DOMINIK J. GABRIELSEN, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

ORDER ADOPTING REPORT & RECOMMENDATION IN PART

KENNETH M. KARAS, District Judge.

Pro se Plaintiff Dominik J. Gabrielsen ("Plaintiff") brings this action pursuant to 42 U.S.C. § 405(g) seeking judicial review of the final decision of the Commissioner of Social Security (the "Commissioner"), who found that Plaintiff was not entitled to disability insurance benefits under the Social Security Act ("SSA"). The Court referred the case to Magistrate Judge Paul E. Davison ("Judge Davison"), pursuant to 28 U.S.C. § 636(b)(1)(A). (Dkt. No. 12.) The Commissioner moved for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). (Dkt. No. 18.) Judge Davison issued a Report and Recommendation ("R&R") recommending that the Court deny the Commissioner's Motion and remand the case for further administrative proceedings. (Dkt. No. 26.) The Commissioner filed timely objections to the R&R, which the Court considers here. (Dkt. No. 29.) For the reasons discussed below, the Court adopts the Report and Recommendation in part and remands the case to the Commissioner for further administrative proceedings consistent with this Opinion pursuant to 42 U.S.C. § 405(g).

I. Discussion

A. Standard of Review

A district court reviewing a report and recommendation addressing a dispositive motion "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); see also Bradley v. Commr of Soc. Sec., No. 12-C7300, 2015 WL 1069307, at *1 (S.D.N.Y. Mar. 11, 2015) (same). Under 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b)(2), parties may submit objections to the magistrate judge's report and recommendation. The objections must be "specific" and "written, " and must be made "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed.R.Civ.P. 72(b)(2); see also 28 U.S.C. § 636(b)(1).

When a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(3); Bradley, 2015 WL 1069307, at *1. Further, the district court "may adopt those portions of the... report [and recommendation] to which no specific written objection' is made, as long as the factual and legal bases supporting the findings and conclusions set forth in those sections are not clearly erroneous or contrary to law." See Eisenberg v. New England Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y. 2008) (quoting Fed.R.Civ.P. 72(b)(2)); see also Alverio v. Calvin, No. 13-CV-4722, 2015 WL 1062411, at *1 (S.D.N.Y. Mar. 9, 2015) ("When the parties make no objections to the [r]report [and recommendation], the [c]ourt may adopt fit] if there is no clear error on the face of the record." (internal quotation marks omitted)).

Regarding the merits of a Social Security claim, the reviewing court's function is not to determine whether the plaintiff is disabled, and therefore entitled to Social Security benefits. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) ("|I]t is not our function to determine de novo whether plaintiff is disabled.") (alteration and internal quotation marks omitted); Riordan v. Barnhart, No. 06-CV-4773, 2007 WL 1406649, at *4 (S.D.N.Y. May 8, 2007) ("The court does not engage in a de novo determination of whether or not the claimant is disabled...."); Van Dien v. Barnhart, No. 04-CV-7259, 2006 WL 785281, at *8 (S.D.N.Y. Mar. 24, 2006) ("The court is not permitted to determine whether the claimant is disabled de novo "). Instead, the reviewing court determines only "whether the correct legal standards were applied and whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), as amended on reh'g in part. 416 F.3d 101 (2d Cir. 2005); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d. Cir. 1999) (noting that a court will only overturn the determination of an Administrative Law Judge ("ALJ") if it is "based upon legal error" or "not supported by substantial evidence" (internal quotation marks omitted)); Morrel v. Massanari, No. 01-CV-186, 2001 WL 776950. at *5 (S.D.N.Y. July 11, 2001) ("A court's review of the Commissioner's final decision is limited to determining whether there is substantial evidence' in the record to support such determination.").

To determine whether a claimant is entitled to disability benefits, the ALJ must follow a five-step sequential analysis. See 20 C.F.R. § 404.1520(a)(1); Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 1999) (outlining the five steps). First, the ALJ determines whether the claimant is currently engaged in substantial gainful work. See 20 C.F.R. §§ 404.1520(a)(4)(i), 1520(b); McIntyre v. Colvin, 758 F.3d 146, 150 (2d Cir. 2014); Rohm v. Commr of Soc. Sec, 994 F.Supp.2d 496, 501 (S.D.N.Y. 2014). Second, if the claimant is not so engaged, the ALJ considers whether the claimant has a severe impairment that limits his or her ability to participate in work-related activities. See 20 C.F.R. §§ 404.1520(a)(4)(h), 1520(c); McIntyre, 758 F.3d at 150; Rolon, 994 F.Supp.2d at 501. Third, if so, the ALJ determines whether the impairment is listed, or equal to, those in 20 C.F.R. § 404.1520, Part 404, Subpart P. Appendix 1 (-Appendix 1"); if it is, disability is presumed, and the claimant is considered unable to perform substantial gainful activity. See 20 C.F.R. §§ 404.1520(a)(4)(iii), 1520(d); McIntyre, 758 F.3d at 150; Rolon, 994 F.Supp.2d at 501. Fourth, if the impairment does not meet or equal the criteria of a listed impairment, the ALJ assesses whether the claimant retains functional capacity to perform his or her past work. See 20 C.F.R. §§ 404.1520(a)(4)(iv), (e)-(f); McIntyre, 758 F.3d at 150; Rolon, 994 F.Supp.2d at 501. Fifth and finally, where a claimant is deemed unable to perform his or her past work, the ALJ "determiners] whether there is other work within the national economy" that the claimant is qualified to perform. McIntyre, 758 F.3d at 150; see also Peterson v. Barnhart, 219 F.Supp.2d 491, 493 (S.D.N.Y. 2002); 20 C.F.R. §§ 404.1520(a)(4)(v). 1520(g) (noting that the ALJ must show that there are other jobs existing based on the claimant's vocational factors, which include age, education, and work experience, as well as the claimant's residual functional capacity). If the ALJ concludes that there is work in the national economy that the individual can perform, then the ALJ must determine that the individual is not disabled. See McIntyre, 758 F.3d at 150; 20 C.F.R. § 404.1520(a)(4)(v).[1]

B. Analysis

The Court adopts the extensive recitation of facts set forth by Judge Davison, (Report and Recommendation ("R&R") 2-24 (Dkt. No. 26)), and assumes the Parties' familiarity with it. The Court will repeat only those tacts that are relevant to the consideration of Defendant's objections.

The Commissioner objects to Judge Davison's recommendation that the Commissioner's Motion be denied and that the case be remanded for further proceedings because the ALJ failed to properly develop and consider the record. ( See R&R 35.) First, the Commissioner argues that the ALJ properly developed the record, and that Judge Davison erroneously ruled (a) that "a different standard for developing the record applies when a claimant asserts a disability based on a mental impairment, " and (b) that the ALJ was "required to [re-contact] a treating physician where the physician's treatment notes conflict with his assessment of the claimant's residual functional capacity." (Comm'r's Obj's to R&R ("Obi's") 2-3 (Dkt. No. 29).) Second, the Commissioner contends that the ALJ properly considered the evidence with respect to Dr. Rhea Johnson ("Dr. Johnson"), Plaintiff's psychiatrist and treating physician, and Joanne Baecher-DiSalvo ("Baecher-DiSalvo"), Plaintiff's social worker. ( See id. at 8-9.) The Court reviews the portions of the R&R relevant to the Commissioner's objections de novo.

1. Failure to Develop the Record

a. Heightened Duty to Develop the Record

In his R&R, Judge Davison adopted two legal conclusions pertaining to how an allegation of mental impairment impacts the process by which a claimant's eligibility for Social Security benefits is assessed. First, Judge Davison explained that "where a claimant suffers from an alleged mental impairment, the ALJ is required to utilize a special technique' at the second and third steps" of his eligibility determination. (R&R 27.)[2] Second, Judge Davison indicated that "an ALJ must pay careful attention to developing the record when a disability claim is based upon a mental disorder." (R&R 29.) The Commissioner ...


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