Opinion
1:21-cv-00885-VEC-GRJ
06-10-2022
SYLVIA A., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE:
In November of 2018, Plaintiff Sylvia A. applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by Ny Disability, LLC, Daniel Berger, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits pursuant to 42 U.S.C. §§ 405 (g) and 1383 (c)(3).
Plaintiff's name has been partially redacted in compliance with Federal Rule of Civil Procedure 5.2 (c)(2)(B) and the recommendation of the Committee on Court Administration and Case Management of the Judicial Conference of the United States.
This case was referred to the undersigned for a report and recommendation on May 2, 2022. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 21, 23). For the following reasons, it is recommended that Plaintiff's motion should be granted, the Commissioner's motion should be denied, and this matter should be remanded for further proceedings.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on November 9, 2018, alleging disability beginning August 29, 2018. (T at 148-51). Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on January 28, 2020, before ALJ Kimberly Schiro. (T at 59-91). Plaintiff appeared with an attorney and testified. (T at 34-40).
Citations to “T” refer to the administrative record transcript at Docket No. 15.
B. ALJ's Decision
On March 25, 2020, the ALJ issued a decision denying the applications for benefits. (T at 7-24). The ALJ found that Plaintiff had not engaged in substantial gainful activity since August 29, 2018 (the alleged onset date) and met the insured status requirements of the Social Security Act through December 31, 2023. (T at 12).
The ALJ concluded that Plaintiff's obesity; lumbar impairment/scoliosis, and asthma were severe impairments as defined under the Act. (T at 12). The ALJ concluded, however, that Plaintiff did not have an impairment or combination of impairments that met or medically equaled one of the listed impairments in 20 CFR Part 403, Subpart P, Appendix 1. (T at 14).
At step four of the sequential analysis the ALJ then determined that Plaintiff retained the residual functional capacity (“RFC”) to perform sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a), with the following limitations: she can occasionally climb ramps and stairs, stoop, and crouch; and she cannot have concentrated exposure to temperature extremes, wetness, humidity, fumes, odors, dusts, gases, or poor ventilation. (T at 14-15).
The ALJ concluded that Plaintiff could perform her past relevant work as a reception clerk. (T at 19). As such, the ALJ found that Plaintiff had not been under a disability, as defined under the Social Security Act, and was not entitled to benefits for the period between August 29, 2018 (the alleged onset date) and March 25, 2020 (the date of the ALJ's decision). (T at 1920).
On December 7, 2020, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the Commissioner's final decision. (T at 1-6).
C. Procedural History
Plaintiff commenced this action, by and through her counsel, by filing a Complaint on February 1, 2021. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on January 17, 2022. (Docket No. 21, 22). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on March 18, 2022. (Docket No. 23, 24). On April 20, 2022, Plaintiff submitted a reply memorandum of law in further support of her motion. (Docket No. 27). The matter was assigned to the undersigned for a report and recommendation on May 2, 2022.
II. APPLICABLE LAW
A. Standard of Review
“It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). The court's review is limited to “determin[ing] whether there is substantial evidence supporting the Commissioner's decision and whether the Commissioner applied the correct legal standard.” Poupore v. Astrue, 566 F.3d 303, 305 (2d Cir. 2009) (per curiam).
The reviewing court defers to the Commissioner's factual findings, which are considered conclusive if supported by substantial evidence. See 42 U.S.C. § 405(g). “Substantial evidence” is “more than a mere scintilla” and “means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Lamay v. Commissioner of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (internal quotations omitted) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“In determining whether the agency's findings are supported by substantial evidence, the reviewing court is required to 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 quotations omitted).
“When there are gaps in the administrative record or the ALJ has applied an improper legal standard,” or when the ALJ's rationale is unclear, remand “for further development of the evidence” or for an explanation of the ALJ's reasoning is warranted. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).
B. Five-Step Sequential Evaluation Process
Under the Social Security Act, a claimant is disabled if he or she lacks the ability “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.S.C. § 423(d)(1)(A).
A claimant's eligibility for disability benefits is evaluated pursuant to a five-step sequential 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 “listed” in the regulations, the Commissioner then asks whether, despite the claimant's severe impairment, he or she has residual functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner then determines whether there is other work which the claimant could perform.See Rolon v. Commissioner of Soc. Sec., 994 F.Supp.2d 496, 503 (S.D.N.Y. 2014); see also 20 C.F.R. §§ 404.1520(a)(4)(i)-(v),416.920(a)(4)(i)-(v).
The claimant bears the burden of proof as to the first four steps; the burden shifts to the Commissioner at step five. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d Cir. 2003). At step five, the Commissioner determines whether the claimant can perform work that exists in significant numbers in the national economy. See Butts v. Barnhart, 416 F.3d 101, 103 (2d Cir. 2005); 20 C.F.R. § 404.1560(c)(2).
III. DISCUSSION
Plaintiff raises five arguments in support of her challenge to the ALJ's decision. First, she contends that the ALJ did not adequately address her subjective complaints. Second, Plaintiff asserts that the ALJ's step two analysis was flawed. Third, she argues that the ALJ did not adequately account for her obesity. Fourth, Plaintiff challenges the ALJ's RFC determination. Fifth, Plaintiff asserts that the ALJ's step four analysis is not supported by substantial evidence. This Court will address each argument in turn.
A. Subjective Complaints
A claimant's subjective complaints of pain and limitation are “an important element in the adjudication of [social security] claims, and must be thoroughly considered in calculating the [RFC] of a claimant.” Meadors v. Astrue, 370 Fed.Appx. 179, 183 (2d Cir. 2010) (citation omitted); see also 20 C.F.R. § 416.929. However, “the ALJ is ... not required to accept the claimant's subjective complaints without question.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (citations omitted). Rather, the ALJ “may exercise discretion in weighing the credibility of the claimant's testimony in light of other evidence in the record.” Id. (citation omitted); see also Henningsen v. Comm'r of Soc. Sec., 111 F.Supp.3d 250, 267 (E.D.N.Y. 2015) (“The ALJ retains discretion to assess the credibility of a claimant's testimony regarding disabling pain and ‘to arrive at an independent judgment, in light of medical findings and other evidence, regarding the true extent of the pain alleged by the claimant.'” (quoting Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979))).
The ALJ follows a two-step process in evaluating a claimant's credibility.
First, “the ALJ must decide whether the claimant suffers from a medically determinable impairment that could reasonably be expected to produce the symptoms alleged.” Genier, 606 F.3d at 49 (citation omitted).
Second, “the ALJ must consider the extent to which the claimant's symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence of record.” Id. (citation, alterations, and quotation marks omitted). The ALJ must “consider all of the available medical evidence, including a claimant's statements, treating physician's reports, and other medical professional reports.” Fontanarosa v. Colvin, No. 13-CV-3285, 2014 U.S. Dist. LEXIS 121156, at *36 (E.D.N.Y. Aug. 28, 2014) (citing Whipple v. Astrue, 479 Fed.Appx. 367, 370-71 (2d Cir. 2012)).
If the claimant's allegations of pain and limitation are “not substantiated by the objective medical evidence, the ALJ must engage in a credibility inquiry.” Meadors, 370 Fed.Appx. at 184. This inquiry involves seven (7) factors: (1) the claimant's daily activities; (2) the location, duration, frequency, and intensity of the pain; (3) precipitating and aggravating factors; (4) the type, dosage, effectiveness, and side effects of any medications taken to alleviate the pain; (5) any treatment, other than medication, that the claimant has received; (6) any other measures that the claimant employs to relieve the pain; and (7) other factors concerning the claimant's functional limitations and restrictions as a result of the pain. See 20 C.F.R. § 404.1529(c)(3)(i)-(vii)).
In the present case, Plaintiff testified as follows: She was 59 as of the date of the administrative hearing and lived in an apartment with her husband. (T at 34-35). Breathing problems make it difficult to use stairs, walk long distances, or use the subway. (T at 36-37). She has had lung problems since a bacterial infection in 2004. (T at 37). Coughing is constant. (T at 37). Most days, she reads, watches television, and performs simple tasks. (T at 37). Engaging in conversation is difficult due to shortness of breath. (T at 38). Her husband performs most household chores. (T at 38). She has trouble sleeping. (T at 38). During her most recent work, she called in sick about twice a month due to symptoms. (T at 40). Her condition has gotten worse during the past year. (T at 40).
The ALJ found that Plaintiff's medically determinable impairments would reasonably be expected to cause the alleged symptoms, but concluded that her statements regarding the intensity, persistence, and limiting effects of the symptoms were not entirely credible. (T at 15).
For the following reasons, this Court concludes that the ALJ's finding is not supported by substantial evidence.
The ALJ's primary justification for discounting Plaintiff's credibility was her conclusion that “the overall record simply does not contain evidence consistent with the extensive degree of reduced functioning alleged by [Plaintiff].” (T at 16). In reaching this conclusion, the ALJ recognized that the record documents an extensive history of asthma and related breathing problems. (T at 16-17). Nonetheless, the ALJ found Plaintiff's subjective complaints inconsistent with the objective record, which the ALJ described as consisting of “moderate findings, mostly stable symptoms, and fairly routine and conservative management, including no need for extended hospitalizations or acute care.” (T at 16). The ALJ also found Plaintiff's activities of daily living indicative of a greater functional capacity than her subjective complaints alleged. (T at 19).
The ALJ's analysis is problematic in several respects. First, although the ALJ characterized the medical record as containing “moderate” findings, Plaintiff's complaints of significant symptoms, including constant coughing and fatigue, are well-documented in the record. (T at 369, 370, 403, 407, 410, 496, 470, 473, 487-91, 658-60, 672, 675, 698, 720, 727, 736). Plaintiff's asthma was consistently characterized as poorly controlled. (T at 660, 672, 675, 736).
Although inconsistency with the objective record is a proper basis for discounting subjective complaints, DeJesus v. Colvin, 12 Civ. 7354, 2014 U.S. Dist. LEXIS 22238, at *63 (S.D.N.Y. Jan. 23, 2014), the ALJ here did not provide a sufficient explanation as to how the record contradicted Plaintiff's testimony regarding shortness of breath, chronic fatigue, and constant coughing, exacerbated by conversation. This was a particularly significant omission considering the ALJ's step four finding that Plaintiff could perform her past relevant work as a reception clerk (T at 19), a job that, as discussed below, requires significant interpersonal contact and conversation. Indeed, Plaintiff testified that she was fired from this job precisely because of constant coughing. (T at 40).
Second, the ALJ believed Plaintiff's subjective complaints were not consistent with her “fairly routine and conservative management, including no need for extended hospitalizations or other acute care.” (T at 16). The ALJ, however, did not explain how Plaintiff's course of treatment, which included extensive use of inhalers, steroids, and pain medication (T at 372, 450, 488, 660, 669, 702, 727), was different from a course of treatment that would be expected for a claimant with poorly controlled asthma. See Diaz v. Astrue, No. 08cv5006 (JG), 2009 WL 2601316, at *5 (E.D.N.Y. Aug. 24, 2009)(finding characterization of treatment as “conservative” to be “problematic,” because there was “no indication that some more intensive course of treatment should have been pursued if [claimant's] ailments were as severe as he alleged”); see also Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008) (ALJ may not impose his own “‘notion[ ] that the severity of a physical impairment directly correlates with the intrusiveness of the medical treatment ordered'”)(quoting Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000)).
Moreover, although Plaintiff may not have required “extended” hospitalization for treatment, her symptoms were severe enough to warrant multiple trips to the emergency room (T at 439), which bolsters her credibility regarding symptom severity.
Third, the ALJ relied on the opinion of Dr. Dipti Joshi, a consultative examiner. (T at 18). Dr. Joshi opined that Plaintiff should avoid “any type of strenuous activity that causes her asthma exacerbation ....” (T at 441). While Dr. Joshi provided some examples of strenuous activity (“prolonged walking, climbing, and standing”), it appears the physician did not intend this list to be exclusive. (T at 441). Plaintiff testified that using public transportation and engaging in conversation are both strenuous, cause shortness of breath, and exacerbate her asthma. (T at 36, 38). The ALJ did not explain nor address how this testimony is inconsistent with Dr. Joshi's assessment. This omission is significant because the RFC includes no limitation in the ability to use public transportation or sustain conversations, the latter of which is the sine qua non of the past relevant work as a receptionist.
Fourth, the ALJ cited Plaintiff's ability to attend to self-care and perform some household chores as inconsistent with her subjective complaints. (T at 19). Notably, however, the ALJ failed to explain how these activities, which Plaintiff performed periodically and with assistance, were inconsistent with her testimony regarding chronic fatigue and constant coughing, exacerbated by the use of public transportation, changes in temperature, and the need to engage in conversation. See, e.g., Mejia v. Barnhart, 261 F.Supp.2d 142, 148 (E.D.N.Y. 2003)(“The ALJ's finding that plaintiff's participation in solitary activities within the confines of her home and engagement in limited social activities with the assistance of her family is ‘inconsistent with a disabling impairment' is not supported by medical opinion.”); Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (explaining that a claimant's performance of basic self-care activities does not contradict assertions of disability).
Lastly, Plaintiff had an extensive work history (T at 152-53, 156, 166, 175, 181), which the ALJ should have considered as an important factor tending to support the credibility of her complaints. See Rivera v. Schweiker, 717 F.2d 719, 725 (2d Cir. 1983)(“A claimant with a good work record is entitled to substantial credibility when claiming an inability to work because of a disability.”); see also Cahill v. Colvin, No. 12 CIV. 9445 PAE MHD, 2014 WL 7392895, at *26 (S.D.N.Y. Dec. 29, 2014).
For the reasons discussed above, this Court cocnludes that the ALJ's credibility analysis cannot be sustained even under the deferential standard of review applicable here. A remand should be ordered for a proper credibility determination consistent with applicable law.
B. Step Two Analysis
The Commissioner uses a “special technique” to evaluate the severity of mental impairments at step two of the sequential analysis. See 20 C.F.R. § 404.1520a(a). The ALJ rates the degree of functional limitation resulting from the claimant's mental impairment(s) to determine whether the impairment(s) is/are “severe.” See id. at § 404.1520a(d)(1).
To perform this analysis, the ALJ considers the degree of limitation in four (4) broad functional areas - understanding, remembering, or applying information; interacting with others; concentrating, persisting, or maintaining pace; and adapting or managing oneself. If the limitation in these domains is no more than “mild,” and if the evidence does not otherwise indicate more than a mild limitation in the claimant's activity to perform basic work activities, then the mental impairment(s) will be considered non-severe. See id.
“An ALJ's decision at step two that an impairment is not severe must be ‘supported by ‘substantial evidence' in the record as a whole.'” Garcia v. Comm'r of Soc. Sec., No. 20CIV7539PAESLC, 2022 WL 1051134, at *15 (S.D.N.Y. Jan. 31, 2022)(citations omitted). However, “[i]t is the claimant's burden to show at step two that she has a severe impairment.” Rye v. Colvin, No. 2:14-CV-170, 2016 WL 632242, at *3 (D. Vt. Feb. 17, 2016) (internal quotation omitted). “A step two error is not reversible and does not necessitate remand where the record is devoid of evidence that the allegedly omitted impairments were severe.” Guerra v. Comm'r of Soc. Sec., No. 1:16-CV-00991 (MAT), 2018 WL 3751292, at *2-3 (W.D.N.Y. Aug. 7, 2018), aff'd sub nom. Guerra v. Saul, 778 Fed.Appx. 75 (2d Cir. 2019).
Here, the ALJ noted Plaintiff's history of anxiety and depression, but assessed mild limitation in all domains of functioning and concluded that the evidence did not otherwise indicate more than a minimal limitation in her ability to perform the mental demands of basic work activity. (T at 1214). This aspect of the ALJ's decision is supported by substantial evidence.
Although Plaintiff complained of feeling depressed, the ALJ reasonably read the record as not reflecting “any meaningful ongoing psychiatric symptomatology or treatment ....” (T at 13). Two State Agency review psychological consultants found Plaintiff's mental impairments non-severe. (T at 13, 46-47, 60-61). Dr. David Schiach performed a consultative psychological examination in January of 2018. He noted that Plaintiff had no history of psychiatric treatment. (T at 435). On examination, Plaintiff demonstrated appropriate affect, coherent thought processes, mild impairment in attention and concentration, average cognitive functioning, intact memory skills, and good insight and judgment. (T at 436-37). Dr. Schiach found no evidence of limitation in any of the domains of functioning and opined that Plaintiff did not have “any psychiatric problems that would significantly interfere with [her] ability to function on a daily basis.” (T at 437).
The ALJ's reading of the record, combined with the assessments of the consultative psychological examination and State Agency review consultants, constitutes substantial evidence sufficient to sustain this aspect of the ALJ's decision.
C. Obesity
An ALJ must consider the effects of obesity when determining disability. See SSR 00-3p; Battle v. Colvin, No. 13-CV-547-JTC, 2014 WL 5089502, at *5 (W.D.N.Y. Oct. 9, 2014)(“[W]here the record contains evidence indicating limitation of function due to obesity, the ALJ must consider the effect of obesity on the claimant's ability to do basic work activities at steps two through four of the sequential evaluation process.”).
However, “the ALJ's obligation to discuss a claimant's obesity alone, or in combination with other impairments, diminishes where evidence in the record indicates the claimant's treating or examining sources did not consider obesity as a significant factor in relation to the claimant's ability to perform work related activities.'” Id. (quoting Farnham v. Astrue, 832 F.Supp.2d 243, 261 (W.D.N.Y.2011))(collecting cases); see also Browne v. Comm'r of Soc. Sec., 131 F.Supp.3d 89, 102 (S.D.N.Y. 2015).
Here, the ALJ found Plaintiff's obesity to be a severe impairment and considered it likely that the condition contributed to her limitation in movement and activity, which was incorporated into the RFC determination of a reduced range of sedentary work. (T at 12, 15, 18). The Court, therefore, finds no error in this aspect of the ALJ's decision.
D. RFC Determination
A claimant's “residual functional capacity” (“RFC”) is his or her “maximum remaining ability to do sustained work activities in an ordinary work setting on a continuing basis.” Melville, 198 F.3d at 52 (quoting SSR 96-8p). When assessing a claimant's RFC, an ALJ must consider medical opinions regarding the claimant's functioning and make a determination based on an assessment of the record as a whole. See 20 C.F.R. §§ 404.1527(d)(2), 416.9527(d)(2) (“Although we consider opinions from medical sources on issues such as ...your residual functional capacity...the final responsibility for deciding these issues is reserved to the Commissioner.”).
The ALJ determined that Plaintiff retained the RFC to perform sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a), with the following limitations: she can occasionally climb ramps and stairs, stoop, and crouch; and she cannot have concentrated exposure to temperature extremes, wetness, humidity, fumes, odors, dusts, gases, or poor ventilation. (T at 14-15).
As discussed above, the ALJ did not adequately address and develop the record concerning limitations arising from Plaintiff's asthma. In particular, Plaintiff testified to shortness of breath, constant coughing, and chronic fatigue that would appear to interfere with her ability to perform even a reduced range of sedentary work. The ALJ's decision to discount this testimony was not supported by substantial evidence. This, in turn, undermines the RFC determination, which must likewise be revisited on remand.
E. Step Four Analysis
At step four of the sequential evaluation, a “claimant has the burden to show an inability to return to her previous specific job and an inability to perform her past relevant work generally.” Jasinski v. Barnhart, 341 F.3d 182, 185 (2d Cir. 2003)(citing SSR 82-62”). The “inquiry requires separate evaluations of the previous job and the job as it is generally performed.” Id.
“The inquiry ... is not whether the claimant is able to perform the duties of her previous job, but whether the claimant is able to perform the duties associated with her previous ‘type' of work.” Halloran v. Barnhart, 362 F.3d 28, 33 (2d Cir. 2004)(quoting Jock v. Harris, 651 F.2d 133, 135 (2d Cir. 1981)).
The ALJ concluded that Plaintiff could perform her past relevant work as a reception clerk. (T at 19). In reaching this conclusion, the ALJ relied on the job description contained in the Dictionary of Occupational Titles (the “DOT”)(T at 19). The Social Security Administration has taken administrative notice of the DOT, which is published by the Department of Labor and provides detailed descriptions of the requirements for a variety of jobs. See 20 CFR § 416.966 (d)(1).
The DOT description for reception clerk, however, specifically provides that the position requires extensive communication and conversation. See DOT 237.367-038 (“[r]eceives callers at establishment .... directs callers to destination ... [o]btains caller's name and arranges for appointment with person called upon ... (d)irects caller to destination and records name, time of call, nature of business, and person called upon . [m]ay make future appointments and answer inquiries ..”). As discussed in detail above, the ALJ did not adequately address Plaintiff's complaints of constant coughing and chronic fatigue, which would impact the performance of this work both as generally performed (and described in the DOT) and as Plaintiff actually performed it (particularly given her testimony that she was terminated from the position due to her coughing). Reconsideration on remand is required.
F. Remand
“Sentence four of Section 405 (g) provides district courts with the authority to affirm, reverse, or modify a decision of the Commissioner ‘with or without remanding the case for a rehearing.'” Butts v. Barnhart, 388 F.3d 377, 385 (2d Cir. 2002) (quoting 42 U.S.C. § 405 (g)). Remand for further administrative proceedings is the appropriate remedy “[w]here there are gaps in the administrative record or the ALJ has applied an improper legal standard.” Rosa v. Callahan, 168 F.3d 72, 82-83 (2d Cir. 1999); see also Rhone v. Colvin, No. 13-CV-5766 (CM)(RLE), 2014 U.S. Dist. LEXIS 180514, at *28 (S.D.N.Y. Nov. 6, 2014).
Given the deficiencies outlined above in the ALJ's analysis related to Plaintiff's subjective complaints, which in turn undermine the RFC determination and step four analysis, it is recommended that this case be remanded for further proceedings.
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 21) should be GRANTED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 23) should be DENIED; and this case should be remanded for further proceedings under sentence four of section 405 (g) of the Social Security Act.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file any objections. See also Fed.R.Civ.P. 6(a), (b), (d). A party may respond to any objections within 14 days after being served. Any objections and responses shall be filed with the Clerk of the Court. Any request for an extension of time to file objections or responses must be directed to the District Judge. If a party fails to file timely objections, that party will not be permitted to raise any objections to this Report and Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140 (1985); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).