United States District Court, S.D. New York
ORDER ADOPTING REPORT AND RECOMMENDATION
Kevin Castel, United States District Judge.
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.
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
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).
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.
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).
Standard of Review.
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).
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).
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)).
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