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McGovern v. Berryhill

United States District Court, S.D. New York

March 29, 2018

MICHAEL MCGOVERN, Plaintiff,
v.
NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.

          ORDER ADOPTING R&R

          KENNETH M. KARAS UNITED STATES DISTRICT JUDGE

         Michael 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 entirety.

         I. Discussion

         A. Standard of Review

         1. Review of a Report and Recommendation

         A 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. § 636(b)(1).

         When a 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).

         2. Review of a Social Security Claim

         In 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).

         In 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 ...

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