United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE:
Almarene Jusino brings this action under the Social Security
Act, 42 U.S.C. §§ 405(g), 1383(c)(3), seeking
review of a determination by the Commissioner of Social
Security that she does not qualify for supplemental security
income ("SSI") or disability insurance benefits
("DIB"). (See Am. Compl., ECFNo. 12.)
Plaintiff moves this Court for an order remanding this case
to the Social Security Administration ("SSA") for
further proceedings, while the Commissioner moves, pursuant
to Rule 12(c) of the Federal Rules of Civil Procedure, for
judgment on the pleadings. (See PL's Mot. to
Remand, ECF No. 18; Comm'r's Mot. for J. on the
Pleadings, ECF No. 22.)
matter was referred to Magistrate Judge Henry B. Pitman. (ECF
No, 9.) Before this Court is Magistrate Judge Pitman's
July 10, 2018 Report and Recommendation ("Report,"
ECF No. 25), recommending that the Commissioner's motion
be denied and that this case be remanded to the SSA for
further proceedings. (Id. at 76.) In his Report,
Magistrate Judge Pitman advised the parties that failure to
file timely objections to the Report would constitute a
waiver of those objections on appeal. (Id. at
76-77); see also 28 U.S.C. § 636(b)(1);
Fed.R.Civ.P. 72(b). No. objections have been filed.
reviewed the Report for clear error and finding none, this
Court ADOPTS the Report in full and REMANDS this case to the
SSA for further proceedings consistent with this Order and
Report and Recommendations
may accept, reject, or modify, in whole or in part, the
findings set forth in a report and recommendation. 28 U.S.C.
§ 636(b)(1)(C). Where no party files objections to a
report and recommendation, as here, the court may adopt it if
"there is no clear error on the face of the
record." Adee Motor Cars, LLC v. Amato, 388
F.Supp.2d 250, 253 (S.D.N.Y. 2005) (quoting Nelson v.
Smith, 618 F.Supp. 1186, 1189 (S.D.N.Y. 1985)). Clear
error is present only when "upon review of the entire
record, [the court is] left with the definite and firm
conviction that a mistake has been committed."
United States v. Snow, 462 F.3d 55, 72 (2d Cir.
2006) (citation omitted).
The Social Security Act
Court has the "power to enter, upon the pleadings and
transcript of the record, a judgment affirming, modifying, or
reversing the decision of the Commissioner of Social
Security, with or without remanding the cause for a
rehearing," 42 U.S.C. § 405(g). This Court may set
aside a decision by the Commissioner only if it is not
supported by substantial evidence or if it is based upon
legal error. 42 U.S.C. § 405(g); Selian v.
Astrue, 708 F.3d 409, 417 (2d Cir. 2013); Talavera
v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012); Burgess
v. Astrue, 537 F.3d 117, 127 (2d Cir. 2008).
"Substantial evidence means more than a mere
scintilla." Burgess v. Astrue, 537 F.3d 117,
127 (2d Cir. 2008) (citation and quotation marks omitted).
Under the substantial evidence standard, facts found by an
administrative law judge ("ALJ") can be rejected
"only if a reasonable factfinder would have to
conclude otherwise." Brault v. Soc. Sec. Admin,, Comm,
r 683 F.3d 443, 448 (2d Cir. 2012) (citation omitted),
Under the Social Security Act, an individual is considered
"disabled" for purposes of obtaining benefits when
she is unable "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, SC §
423(d)(1)(A). In addition, the individual's
"physical or mental impairments [must be] of such
severity that [s]he . . . cannot, considering [her] age,
education, and work experience, engage in any . . . kind of
substantial gainful work which exists in the national
economy." Id. § 423(d)(2)(A).
Commissioner's regulations outline a five-step sequential
framework to guide the presiding ALJ in evaluating claims for
benefits under the Social Security Act. See 20
C.F.R. § 416.920, The Second Circuit has described the
first four steps of the analysis as follows;
First, the Commissioner considers whether the claimant is
currently engaged in substantial gainful activity. Where the
claimant is not, the Commissioner next considers whether the
claimant has a "severe impairment" that
significantly limits her 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 that is
listed in 20 C.F.R, pt. 404, subpt. P, app. 1. Assuming the
claimant does not have a listed impairment, the fourth
inquiry is whether, despite the claimant's severe
impairment, she has the residual functional capacity
["RFC"] to perform her past work.
Jasinski v. Barnhart, 341 F.3d 182, 183-84 (2d Cir.
2003) (citation omitted). The claimant bears the burden of
proof at each of these steps of the analysis. Melville v.
Apfel, 198 F.3d 45, 51 (2d Cir. 1999).
the claimant has met her burden on each of the first four
steps, "the burden shifts to the Commissioner to show
there is other gainful work in the national economy which the
claimant could perform." Melville v. Apfel, 198
F.3d 45, 51 (2d Cir. 1999) (internal quotation marks and
citation omitted). Ordinarily, the Commissioner may satisfy
her burden at the fifth step by relying solely on the
applicable medical-vocational guidelines (the
"grids"), 20 C.F.R. pt. 404, subpt. P, app. 2.
Rosa v. Callahan, 168 F.3d 72, 78 (2d Cir. 1999).
The grids are used to decide whether, given the
claimant's age, education, work history, and RFC, she
"can engage in any substantial gainful work existing in
the national economy." Rosa, 168 F.3d at 78
(internal quotation marks and citation omitted).
the grid results are generally dispositive, exclusive
reliance on the grids is inappropriate where the guidelines
fail to describe the full extent of a claimant's physical
limitations." Id. For example, where a claimant
has nonexertional impairments that "significantly
diminish [her] ability to work," the Commissioner
"must introduce the testimony of a vocational expert (or
other similar evidence) that jobs exist in the economy which
the claimant can obtain and perform."Bapp v.
Bowen,802 F.2d 601, 603, 605 (2d Cir. 1986); see
also Zabala v. Astrue,595 F.3d 402, 410 (2d Cir. 2010)
("If a claimant has nonexertional limitations that
significantly limit the range of work permitted by his
exertional limitations, the ALJ is required to consult with a
vocational expert.") (internal quotation marks and
citations omitted). While the ALJ has discretion to decide
whether and to what extent the grids sufficiently account for
the claimant's non-exertional impairments such that an
expert is not required, he must affirmatively make that
determination and clearly explain his ...