United States District Court, S.D. New York
ANA L. PEGUERO, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
MEMORANDUM DECISION AND ORDER
B. DANIELS, United States District Judge.
Ana L. Peguero brought this action under 42 U.S.C.
§§ 405(g) and 1383(c)(3) seeking review of a
determination by the Commissioner of Social Security that she
is not entitled to disability insurance benefits
("DIB") or Supplemental Security Income
("SSI"). (Compl., ECF No. 2.) The Commissioner
submitted a motion for judgment on the pleadings pursuant to
Rule 12(c) of the Federal Rules of Civil Procedure.
(Def's Mot. for J. on the Pleadings, ECF No. 15.)
this Court is Magistrate Judge Henry B. Pitman's December
29, 2016 Report and Recommendation ("Report, " ECF
No. 19), recommending that this Court grant the
Commissioner's motion and dismiss the
Complaint. (Report, at 1.) This Court adopts that
Court may accept, reject, or modify, in whole or in part, the
findings set forth in the Report. 28 U.S.C. §
636(b)(1)(C). When no party files objections to a Report, the
Court may adopt the Report if "there is no clear error
on the face of the record." Adee Motor Cars, LLC v.
Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quoting
Nelson v. Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y.
1985)). Clear error is present only when "upon review of
the entire record, [the court is] left with the definite and
firm conviction that a mistake has been committed."
Brown v. Cunningham, No. 14-CV-3515, 2015 WL
3536615, at *4 (S.D.N.Y. June 4, 2015) (internal citations
Judge Pitman advised the parties that failure to file timely
objections to the Report would constitute a waiver of those
objections on appeal. (Report, at 68.) No objection to the
Report has been filed.
Court may only set aside a decision by the Commissioner if
that decision is based upon legal error or not supported by
substantial evidence. See 42 U.S.C. § 405(g);
Byam v. Barnhart, 336 F.3d 172, 179 (2d Cir. 2003).
Substantial evidence is "such relevant evidence as a
reasonable mind might accept as adequate to support a
conclusion, " and must be "more than a mere
scintilla." Richardson v. Perales, 402 U.S.
389, 401 (1971) (quoting Consol. Edison Co. v. NLRB,
305 U.S. 197, 229 (1938)). When the Commissioner's
determination is supported by substantial evidence, the
decision must be upheld, "even if there also is
substantial evidence for the plaintiffs position."
Morillo v. Apfel, 150 F.Supp.2d 540, 545 (S.D.N.Y.
ALJ DETERMINATION OF DISABILITY
the Social Security Act, a claimant is entitled to SSI and
DIB if she can demonstrate that she is unable 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),
assess a claimant's eligibility, the Administrative Law
Judge ("ALJ") undertakes a sequential five-step
process. 20 C.F.R. § 416.920(a)(4). In the first three
steps, the claimant must demonstrate that: (1) she is not
currently engaging in substantial gainful activity; (2) she
has a "severe impairment" that significantly limits
her ability to do basic work activities; and (3) she has an
impairment that meets or equals one of the listings in
Appendix 1 of the regulations. At step four, if the
impairment is not included in the regulations, the ALJ will
consider whether, despite the claimant's severe
impairment, she has the residual functional capacity
("RFC") to perform her past work. Finally, at step
five, if the claimant is unable to perform her past work, the
ALJ will determine whether there is other work that the
claimant could perform. See generally Rosa v.
Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (citing
Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir.
assessing whether a claimant has a disability, the factors to
be considered include: "(1) the objective medical facts;
(2) diagnoses or medical opinions based on such facts; (3)
subjective evidence of pain or disability testified to by the
claimant or other[s]; and (4) the claimant's educational
background, age, and work experience." Rivera v.
Harris, 623 F.2d 212, 216 (2d Cir. 1980). An ALJ must
"grant controlling weight to the opinion of a
claimant's treating physician if the opinion is well
supported by medical findings and is not inconsistent with
other substantial evidence." Rosado v.
Barnhart, 290 F.Supp.2d 431, 438 (S.D.N.Y. 2003) (citing
20 C.F.R. § 404.1527(d)(2)). If an ALJ does not give a
treating physician's opinion controlling weight, he must
provide "good reasons" for declining to do so.
See 20 C.F.R. §§ 404.1527(c)(2),
Report found, the ALJ in this case correctly analyzed
Plaintiffs claim according to the five-step evaluation
process. (Report, at 50.) At Step Three, the Report
properly concluded that the ALJ's findings (that
Plaintiffs mental impairments and ear injury did not meet the
criteria for any listing in Appendix 1) were legally correct
and supported by substantial evidence. (Id., at
50-56.) The Report also properly found that the ALJ's RFC
determination (that Plaintiff could perform light work with
moderate pulmonary, auditory, and environmental limitations)
was supported by substantial evidence. (Id., at
56-66.) The Report correctly determined that the ALJ provided
"good reasons" for affording less weight to some of
the Plaintiffs treating physicians' opinions.
(Id., at 59.) Further, the Report correctly found
that substantial evidence supported the ALJ's conclusion
that Plaintiffs testimony was not entirely credible.
(Id., at 64-65.)
Five, the Report properly found that the ALJ reasonably
relied on the testimony of a vocational expert and reasonably
determined that Plaintiff was able to perform other work in
the national economy. (Id., at 67-68.) Given that
the vocational expert identified three jobs in the national
economy that Plaintiff could perform despite her limitations,
the Commissioner met the burden of showing the existence of
alternative substantial gainful employment suited to
Plaintiffs capabilities. As a result, the ALJ correctly
determined that Plaintiff was not disabled.