United States District Court, S.D. New York
ORDER ADOPTING R&R
KENNETH M. KARAS UNITED STATES DISTRICT JUDGE
McGovern ("Plaintiff) brings this Action against the
Acting Commissioner of Social Security ("Defendant"
or the "Commissioner"), pursuant to 42 U.S.C.
§ 405(g), challenging the decision of an administrative
law judge (the "ALJ") to deny Plaintiffs
application for disability insurance benefits on the ground
that Plaintiff was not disabled within the meaning of the
Social Security Act, 42 U.S.C. § 423, et seq. The Court
referred the case to Magistrate Judge Paul E. Davison
("Judge Davison") pursuant to 28 U.S.C. §
636(b)(1)(A). (See Dkt. No. 7.) Plaintiff and
Defendant cross-moved for judgment on the pleadings. (Dkt.
Nos. 18, 26.) Judge Davison issued a thorough Report and
Recommendation (the "R&R") recommending that
the Court deny Plaintiffs Motion for Judgment on the
Pleadings and grant Defendant's Cross-Motion for Judgment
on the Pleadings. (R&R 32-33 (Dkt. No. 35).) Plaintiff
filed objections to the R&R dated August 23, 2017,
(See PL's Obj. to the R&R ("PL's
Obj.") (Dkt. No. 22)), and Defendants filed a response
on September 15, 2017, (Govt. Resp. to PL's Obj.
("Govt. Resp.") Dkt. No. 43)). For the reasons
discussed below, the Court adopts the R&R in its
Standard of Review
Review of a Report and Recommendation
district court reviewing a report and recommendation
addressing a dispositive motion "may accept, reject, or
modify, in whole or in part, the findings and recommendations
made by the magistrate judge." 28 U.S.C. §
636(b)(1). Pursuant to § 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. §
party submits timely objections to a report and
recommendation, the district court reviews de novo the
portions 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). The district court "may adopt
those portions of the ... report [and recommendation] to
which no 'specific written objection' is made, so
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." Eisenberg v. New Eng.
Motor Freight, Inc., 564 F.Supp.2d 224, 226 (S.D.N.Y.
2008) (quoting Fed.R.Civ.P. 72(b)(2)). "[F]ailure to
object timely to a magistrate's report operates as a
waiver of any further judicial review of the magistrate's
decision." Caidor v. Onondaga County, 517 F.3d
601, 604 (2d Cir. 2008) (internal quotation marks omitted);
see also Thai Lao Lignite (Thailand) Co., Ltd. v.
Gov't of Lao People's Democratic Republic, 924
F.Supp.2d 508, 517 (S.D.N.Y. 2013) (refusing to consider
objections filed one day late). Moreover, objections that are
"merely perfunctory responses argued in an attempt to
engage the district court in a rehashing of the same
arguments set forth in the original petition will not suffice
to invoke de novo review of the magistrate's
recommendations." Vega v. Artuz, No.
97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30, 2002)
(italics omitted); see also Ortiz v. Barkley, 558
F.Supp.2d 444, 451 (S.D.N.Y. 2008) (same).
Review of a Social Security Claim
reviewing a Social Security claim, the reviewing court does
not determine for itself whether the plaintiff was 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
[the] plaintiff is disabled." (italics, alteration, and
internal quotation marks omitted)). Instead, the reviewing
court considers merely "whether the correct legal
standards were applied and whether substantial evidence
supports the decision." Butts v. Barnhart, 388
F.3d 377, 384 (2d C\r.2004), amended on reh'g in part
by 4\6F 3d 101 (2d Cir. 2005). Accordingly, a court may
overturn an ALJ's determination only if it was
"based upon legal error" or "not supported by
substantial evidence." Rosa v. Callahan, 168
F.3d 72, 77 (2d Cir. 1999) (internal quotation marks
omitted). '"Substantial evidence' is 'more
than a mere scintilla'[;] ... [i]t means such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.'" Lamay v. Comm 'r of
Soc. Sec, 562 F.3d 503, 507 (2d Cir. 2009) (quoting
Richardson v. Perales, 402 U.S. 389, 401 (1971)). In
considering whether substantial evidence supports the
ALJ's decision, the reviewing court must "examine
the entire record, including contradictory evidence and
evidence from which conflicting inferences can be
drawn." Talavera v. Astrue, 697 F.3d 145, 151
(2d Cir. 2012) (internal quotation marks omitted).
determining whether a claimant is entitled to disability
insurance benefits, the ALJ follows a five-step analysis:
1. The Commissioner considers whether the claimant is
currently engaged in substantial gainful activity.
2. If not, the Commissioner considers whether the claimant
has a "severe impairment" which limits his or her
mental or physical ability to do basic work activities.
3. If the claimant has a "severe impairment, " the
Commissioner must ask whether, based solely on medical
evidence, claimant has an impairment listed in Appendix 1 of
the regulations. If the claimant has one of these enumerated
impairments, the Commissioner will automatically consider him
disabled, without considering vocational factors such as age,
education, and work experience.
4. If the impairment is not Misted' in the regulations,
the Commissioner then asks whether, despite the
claimant's severe impairment, he or she has residual