Opinion
13 Civ. 4722 (GBD) (SN)
03-09-2015
MILAGROS ALVERIO, Plaintiff, v. CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.
MEMORANDUM DECISION AND ORDER
:
Plaintiff Milagros Alverio brings this action under Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking review of the Commissioner of Social Security's (the "Commissioner") decision to deny her Social Security Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI") (collectively "disability benefits"). The parties filed cross-motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c). ECF Nos. 22, 24. The matter was referred to Magistrate Judge Sarah Netburn for a Report and Recommendation ("Report"). In her Report, Magistrate Judge Netburn recommends that this Court grant Plaintiff's cross-motion for judgment on the pleadings, deny Defendant's motion for judgment on the pleadings, and remand the case for further administrative proceedings. This Court adopts the Report in its entirety. Defendant's Motion for Judgment on the Pleadings is DENIED. Plaintiff's Cross-Motion for Judgment on the Pleadings is GRANTED. This case is remanded for further administrative proceedings consistent with the Report.
The Court may accept, reject, or modify, in whole or in part, the findings and recommendations set forth within the Report. See 28 U.S.C. § 636(b)(1)(C) (2012). When parties object to the Report, the Court must make a de novo determination of those portions of the Report to which objections are made. Id. The Court need not conduct a de novo hearing on the matter. See United States v. Raddatz, 447 U.S. 667, 675-76 (1980). Rather, it is sufficient that the Court "arrive at its own, independent conclusion" regarding those portions to which objections were made. Nelson v. Smith, 618 F. Supp. 1186, 1189-90 (S.D.N.Y. 1985) (quoting Hernandez v. Estelle, 711 F.2d 619, 620 (5th Cir. 1983)). When the parties make no objections to the Report, the Court may adopt the Report 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) (citation omitted).
In her Report, Magistrate Judge Netburn advised the parties that pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil Procedure 72(b) failure to file timely objections to the Report would result in waiver of objections and preclude appellate review. Report at 40. Neither party objected to the Report. As there is no clear error on the face of the record, this Court adopts the thorough and well-reasoned Report in its entirety.
Under the Act, a person is considered to have a disability when he or she is "[unable] to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which . . . has lasted or can be expected to last for a continuous period of not less than 12 months . . . ." 42 U.S.C. § 423(d)(1)(A); Beauvoir v. Chater, 104 F.3d 1432, 1433 (2d Cir. 1997). The impairment must result in severe functional limitations that prevent the claimant from engaging in any substantial gainful activity. See 42 U.S.C. § 423(d)(2)(A); Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999).
To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct a five-step inquiry: (i) determine whether the claimant is currently engaged in any substantial gainful activity; if not, (ii) determine whether the claimant has a "severe impairment" that significantly limits her ability to do basic work activities; if so, (iii) determine whether the impairment is one of those listed in Appendix I of the regulations; if the impairment is listed, the Commissioner will presume the claimant has a disability; if not, (iv) determine whether the claimant possesses the residual functional capacity ("RFC") to perform her past work despite the disability; and if not, (v) determine whether the claimant is capable of performing other work. See 20 C.F.R. § 404.1520; Rosa, 168 F.3d at 77.
The Court can set aside a Commissioner's decision to deny disability benefits only if (i) the ALJ committed legal error, or (ii) the ALJ's decision is not supported by substantial evidence in the record. See 42 U.S.C. § 405(g); Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). Substantial evidence is "such relevant evidence as a reasonable mind might accept as adequate to support a conclusion," and must be "more than a mere scintilla." Richardson, 402 U.S. at 401. If the ALJ fails to follow the five-step procedure, or the ALJ's conclusions are not supported by substantial evidence in the record, the Court may set the decision aside. Kohler, 546 F.3d at 265.
Magistrate Judge Netburn correctly concluded that the ALJ committed legal error at step three because the ALJ failed to apply the treating physician rule. Magistrate Judge Netburn found that the ALJ failed to give adequate weight to Dr. Begolli's assessment; Plaintiff's treating psychiatrist. Magistrate Judge Netburn also concluded that the ALJ committed legal error by not engaging in the appropriate analysis for when the ALJ chooses to not give the treating physician's findings controlling weight. Although there is ample evidence to substantiate Dr. Begolli's medical opinion regarding Plaintiff, the ALJ found that Begolli's opinion warranted merely "strong weight". Report at 20. Magistrate Judge Netburn correctly found that the ALJ improperly gave more credit to the consultative doctor's, Dr. Broska, medical opinion than to Dr. Begolli's opinion. Moreover, even if the ALJ was correct to overrule Dr. Begolli's medical opinion, Magistrate Judge Netburn concluded that the ALJ should have engaged in the appropriate analysis of the required factors. Id. at 30. Magistrate Judge Netburn correctly recommends that further administrative proceedings are necessary for the ALJ to apply the treating physician rule, including consideration of the required factors. Id. at 31.
The "treating physician rule" instructs the ALJ to give controlling weight to the opinions of a claimant's treating physician, as long as the opinion is well supported by medical findings and is not inconsistent with the other evidence in the record. 20 C.F.R. § 404.1527(c)(2); Rugless v. Comm'r of Social Security, 548 F. App'x 698, 699-700 (2d Cir. 2013). If the ALJ chooses to not give controlling weight to the physician, the ALJ must apply a battery of factors: (1) the length of the treatment, (2) the nature of the treatment relationship, (3) the supportability of the opinion, (4) the consistency of the opinion, (5) the specialization of the professional providing the opinion, and (6) other factors regarded as relevant by the claimant. 20 C.F.R. § 404.1527(c)(2)-(6).
Additionally, Magistrate Judge Netburn also correctly concluded that the ALJ's severity determination at step three was unsupported by substantial evidence, and that the ALJ's reasoning for discrediting the Plaintiff's testimony was legal error. As Magistrate Judge Netburn noted, Plaintiff's treating physician found that she had "'no useful ability' to maintain personal appearance, behave in an emotionally stable manner, or relate predictably in social situations." Report at 35. Magistrate Judge Netburn correctly concluded that the ALJ erroneously determined that Plaintiff lacks the requisite severity under step three. Id. In addition, Magistrate Judge Netburn correctly stated that "[d]iscrediting a claimant's subjective complaints based on the ALJ's own RFC determination prejudices the claimant and requires remand." Id. at 33; see Molvin v. Colvin, 2014 WL 3445335, at *14 (S.D.N.Y. July 15, 2014); see also Horan v. Astrue, 350 F. App'x 483, 485 (2d Cir. 2009) (remanding the case because the ALJ's credibility determination was based on factual errors).
Magistrate Judge Netburn also correctly concluded that the ALJ's residual functional capacity ("RFC") determination at step four of the Procedure was incorrect because it conflicts with medical testimony. Magistrate Judge Netburn found that the ALJ's determination that Plaintiff has the RFC to perform "medium work" was based on the opinions of Drs. Begolli, Broska, and Akresh. Id. Thus, the ALJ's use of the evidence was colored by an incorrect balancing of the opinions of various medical professionals, rather than deference to the treating physician. Id. at 34. Magistrate Judge Netburn correctly found that the ALJ failed to consider the importance of treating physician Dr. Begolli's Work Assessment, where Dr. Begolli commented on Plaintiff's residual capacity to do work-related activities. See id. at 36.
The Residual Functional Capacity ("RFC") is an assessment based upon holistic review of all relevant medical evidence. 20 C.F.R. § 404.1545(a). The ALJ expresses the RFC as a conclusion about what kinds of work a claimant might perform and the intensity of that work. A RFC determination pursuant to fourth step of the disability analysis evaluates "the most [the claimant] can still do despite [her] limitations." Id. § 404.1545(a)(1). To determine a claimant's RFC, the ALJ "identif[ies] the individual's functional limitations or restrictions and assess[es] [the claimant's] work-related abilities on a function-by-function basis . . . ." Cichocki v. Astrue, 729 F.3d 172, 176 (2d Cir. 2013) (per curiam). These functions "include physical abilities such as sitting, standing, walking, lifting, carrying, pushing, pulling, or other physical functions; mental abilities such as understanding, remembering, carrying out instructions, and responding appropriately to supervision; and other abilities that may be affected by impairments, such as seeing, hearing, and the ability to tolerate environmental factors." Id. --------
CONCLUSION
Defendant's Motion for Judgment on the Pleadings is DENIED. Plaintiff's Cross-Motion for Judgment on the Pleadings is GRANTED. This case is remanded for further administrative proceedings consistent with Magistrate Judge Netburn's Report and Recommendation.
The Clerk of Court is directed to close the motions at ECF Nos. 22 and 24. Dated: March 9, 2015
New York, New York
SO ORDERED.
/s/_________
GEORGE B. DANIELS
United States District Judge