United States District Court, N.D. New York
STACEY F. LEE, Plaintiff,
COMMISSIONER OF SOCIAL SECURITY, Defendant.
F. LEE Pro Se
J. KAISER, ESQ. U.S. SOCIAL SECURITY ADMIN. OFFICE OF
REG'L GEN. COUNSEL - REGION II Counsel for Defendant
REPORT AND RECOMMENDATION
William B. Mitchell Carter, U.S. Magistrate Judge
matter was referred for report and recommendation by the
Honorable Judge Suddaby, Chief United States District Judge,
pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d).
(Dkt. No. 18.) This case has proceeded in accordance with
General Order 18.
before the Court, in this Social Security action filed by
Stacey F. Lee (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or
“the Commissioner”) pursuant to 42 U.S.C.
§§ 405(g) and 1383(c)(3), is the Defendant's
motion for judgment on the pleadings. (Dkt. No. 14.) For the
reasons set forth below, it is recommended that
Defendant's motion be granted.
was born in 1970. (T. 64.) She completed the 9th
grade. (T. 164.) Generally, Plaintiff's alleged
disability consists of neck injury, back injury, hip injury,
depression, and tendinitis. (T. 163.) Her alleged disability
onset date is January 31, 2009. (T. 64.) Her date last
insured is June 30, 2014. (Id.) She previously
worked as a retail sales associate. (T. 165.)
January 22, 2013, Plaintiff applied for a period of
Disability Insurance Benefits (“SSD”) under Title
II of the Social Security Act. (T. 71.) Plaintiff's
application was initially denied, after which she timely
requested a hearing before an Administrative Law Judge
(“the ALJ”). On October 2, 2014, Plaintiff
appeared before the ALJ, Jennifer Gale Smith. (T. 28-63.) On
December 5, 2014, ALJ Smith issued a written decision finding
Plaintiff not disabled under the Social Security Act. (T.
9-27.) On June 16, 2016, the Appeals Council
(“AC”) denied Plaintiff's request for review,
rendering the ALJ's decision the final decision of the
Commissioner. (T. 4-7.) Thereafter, Plaintiff timely sought
judicial review in this Court.
The ALJ's Decision
in her decision, the ALJ made the following five findings of
fact and conclusions of law. (T. 14-23.) First, the ALJ found
that Plaintiff met the insured status requirements through
June 30, 2014 and Plaintiff had not engaged in substantial
gainful activity since January 31, 2009. (T. 14.) Second, the
ALJ found that Plaintiff had the severe impairments of
degenerative disc disease of the lumbar spine, degenerative
disc disease of the thoracic spine, degenerative disc disease
of the cervical spine, history of bilateral upper extremity
tendinitis, depression, anxiety, history of ADHD, history of
panic attacks, and history of alcohol abuse. (Id.)
Third, the ALJ found that Plaintiff did not have an
impairment that meets or medically equals one of the listed
impairments located in 20 C.F.R. Part 404, Subpart P,
Appendix. 1. (T. 15.) Fourth, the ALJ found that Plaintiff
had the residual functional capacity (“RFC”) to
perform sedentary work with additional non-exertional
limitations. (T. 17.) The ALJ found that Plaintiff could
occasionally climb ramps and stairs, kneel, crouch, crawl,
balance and stoop. (Id.) The ALJ found that
Plaintiff could frequently reach in all directions and
occasionally reach overhead, and she could frequently handle,
finger, and feel. (Id.) The ALJ found that Plaintiff
should not have exposure to cold temperatures during working
hours. (Id.) The ALJ found that Plaintiff was
limited to simple, routine and repetitive tasks at a
low-stress job, defined as occasional decision making,
judgment required and changes in the work setting.
(Id.) The ALJ found that Plaintiff should only have
occasional contact with supervisors, coworkers, and the
public. (Id.) Fifth, the ALJ determined that
Plaintiff was incapable of performing her past relevant work;
however, there were jobs that existed in significant numbers
in the national economy Plaintiff could perform. (T. 20-23.)
THE PARTIES' BRIEFING
did not file a brief in this matter. Defendant makes two
arguments in support of her motion for judgment on the
pleadings. First, Defendant argues the ALJ's RFC
determination was supported by substantial evidence. (Dkt.
No. 14 at 20-24 [Def.'s Mem. of Law].) Second, and
lastly, Defendant argues the ALJ's step five
determination was supported by substantial evidence.
(Id. at 24-25.)
Plaintiff's brief is the only opportunity for Plaintiff
to set forth the errors Plaintiff contends were made by the
Commissioner of Social Security that entitle Plaintiff to
relief. The failure to file a brief as required by this Order
will result in the consideration of this appeal without the
benefit of Plaintiff's arguments and may result in a
decision heavily influenced by the Commissioner's version
of the facts and subsequent dismissal of your appeal.
N.D.N.Y. General Order No. 18 at 4.
Order 18 states that the Court will “consider” a
case notwithstanding a plaintiff's failure to file a
brief, albeit in a way that might be “heavily
influenced by the Commissioner's version of the
facts.” N.D.N.Y. General Order No. 18 at 4. In a case
such as this, where Plaintiff is proceeding pro se,
General Order No. 18's promise of a consideration of the
merits complies with the special solicitude that the Second
Circuit mandates for pro se litigants. Accordingly,
the Court has, despite Plaintiff's failure to file a
brief, examined the record to determine whether the ALJ
applied the correct ...