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Newell v. Colvin

United States District Court, S.D. New York

March 31, 2017



          P. Kevin Castel, United States District Judge.

         Plaintiff Eugene Newell brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), to challenge the final determination of the Commissioner of Social Security ("the Commissioner") denying his application for supplemental security income and disability insurance benefits. Both parties have moved for judgment on the pleadings pursuant to Rule 12(c), Fed.R.Civ.P. On June 6, 2016 this case was referred to Magistrate Judge Debra Freeman to hear and report. On March 1, 2017, Judge Freeman issued a Report and Recommendation (the "R&R") pursuant to 28 U.S.C. § 636(b) and Rule 72(b), Fed. R. Civ. P., recommending that Newell's motion for judgment on the pleadings be granted, the Commissioner's motion be denied, and that the case be remanded to the Commissioner solely for the calculation and payment of benefits to Newell, or alternatively, for further administrative proceedings. The Commissioner filed timely objections to the R&R. For the reasons that follow, this Court adopts Judge Freeman's R&R in substantial part but with certain modifications, grants in part Clark's motion for judgment on the pleadings, and denies the Commissioner's motion for judgment on the pleadings.


         Newell applied for supplemental security income and disability benefits on March 27, 2009, alleging an onset date of December 31, 2007. (Administrative Record "AR" 50, 135, 142). Newell asserts that he suffers from mental health issues including depression, as well as chronic neck, back, and leg pain which he claims have rendered him unable to work. Over the years Newell has received treatment from numerous medical professionals including psychiatrists, therapists, physicians, physical therapists and chiropractors. He was also examined by several consultative physicians as part of his application for social security benefits.

         The Social Security Administration ("SSA") denied Clark's application for benefits on June 22, 2009 and Newell requested a hearing before an administrative law judge ("ALJ") on August 6, 2009. (R&R 29; AR 67, 79). A hearing was held on September 24, 2010 before ALJ Roberto Lebron where Newell appeared with his attorney, Tara Johnson, Esq. (R&R 29, AR 1-44). ALJ Lebron issued a decision on November 19, 2010 denying Newell's application for disability benefits and finding that Newell was not disabled within the meaning of the Act from December 31, 2007 through the date of his decision. (AR 50-58). Newell appealed the ALJ's decision but the Appeals Council denied his request for review on January 25, 2012 at which point the ALJ's decision was rendered final. (R&R 33; AR 64).

         Newell appealed this decision to this Court on February 17, 2012 but before the Commissioner answered, the parties stipulated that the action should be remanded for further administrative proceedings. (AR 543-47). The case was remanded on September 12, 2012. (AR 545). After the Appeals Council vacated ALJ Lebron's November 29, 2010 decision, a second hearing was held in front of ALJ Lebron on July 11, 2013. (AR 548-52, 433-71). Newell was represented by attorney Gary Gogerty, Esq. at the second hearing. (AR 435). ALJ Lebron left the SSA before issuing a final decision in Newell's case and the case was reassigned to ALJ Robert Gonzalez. (AR 600, 474). A third hearing was held in front of ALJ Gonzalez on February 3, 2015 at which Newell was again represented by Mr. Gogerty. (AR 472-542, 472). ALJ Gonzalez issued a decision denying Newell's application for supplemental social security income and disability benefits on May 28, 2015. (AR 408-25). This appeal followed.[1]

         In reviewing ALJ Gonzalez's decision, Magistrate Judge Freeman concluded that the ALJ erred in not finding Newell disabled under Listing 12.05C (intellectual disability), improperly evaluating the opinions of his treating physicians, and inappropriately assessing Newell's credibility. (R&R 54). The Commissioner filed timely objections to each of these conclusions. (Dkt. 24).


         A. Standard of Review.

         In reviewing a Report and Recommendation, 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)(1)(C). In the event that a party files objections to the magistrate judge's recommendations, district courts conduct a de novo review of those matters to which a party filed an objection, hi § 636(b)(1)(B), (C).

         When reviewing a Social Security claim, this Court does not determine de novo whether the plaintiff is disabled and therefore entitled to disability benefits. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Rather, the reviewing court determines only "whether the Commissioner's conclusions 'are supported by substantial evidence in the record as a whole or are based on an erroneous legal standard.'" Id. (quoting Beauvoir v, Chater, 104 F.3d 1432, 1433 (2d Cir. 1997)); see also Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (explaining that a court will only overturn the ALJ's decision if it is "based upon legal error" or "not supported by substantial evidence") (internal quotation marks omitted).

         Substantial evidence is "more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401 (1971) (internal citation and quotation marks omitted). However, "[i]n conducting [its] review . . . [the Court] will not substitute [its] own judgment for that of the Commissioner, even if [it] 'might justifiably have reached a different result upon de novo review.'" Campbell v. Astrue, 465 F.App'x 4, 5 (2d Cir. 2012) (summary order) (quoting Valente v. Sec'v of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984)). "Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ's factual findings 'must be given conclusive effect' so long as they are supported by substantial evidence." Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (per curiam) (quoting Schauer v. Schweiker, 675 F.2d 55, 57 (2d Cir. 1982)).

         The Social Security Act defines a "disability" as an "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). 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). In this Circuit, the five step process is described as follows:

First, the [Commissioner] considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the [Commissioner] next considers whether the claimant has a "severe impairment" which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers such an impairment, the third inquiry is whether, based solely on medical evidence, the claimant has an impairment which is listed in Appendix 1 of the regulations. If the claimant has such an impairment, the [Commissioner] will consider him disabled without considering vocational factors such as age, education, and work experience .... Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the [Commissioner] then determines whether there is other work which the claimant could perform.

Rosa, 168 F.3d at 77 (quoting Berrv v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982) (per curiam)). At the fifth step, "[i]f 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." Gabrielsen v. Colvin, No. 12 Civ. 5694 (KMK) (PED), 2015 WL 4597548, at *2 (S.D.N.Y. July 30, 2015) (citing 20 C.F.R. § 404.1520(a)(4)(v)). "Until the final step in this process, the burdens of production and persuasion remain solely with the claimant." Lopez v. Comm'r of Soc. ...

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