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Jusino v. Berryhill

United States District Court, S.D. New York

July 30, 2018

NANCY A. BERRYHILL, Acting Commissioner of Social Security, Defendant.



         Plaintiff 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.)

         This 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.[1] (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.

         Having 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 the Report.


         A. Report and Recommendations

         A court 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).

         B. The Social Security Act

         This 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).

         The 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.[2]

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).

         Once 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).

         "Although 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."[3]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 ...

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