Opinion
1:22-cv-04718-MKV-GRJ
12-11-2023
MELISSA T.F., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT & RECOMMENDATION
GARY R. JONES, UNITED STATES MAGISTRATE JUDGE
In February of 2018, Plaintiff Melissa T.F.applied for Disability Insurance Benefits under the Social Security Act. The Commissioner of Social Security denied the application. Plaintiff, represented by the Law Office of Charles E. Binder and Harry Binder, Charles E. Binder, Esq., of counsel, commenced this action seeking judicial review of the Commissioner's denial of benefits under 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 November 8, 2023. Presently pending are the parties' Motions for Judgment on the Pleadings under Rule 12 (c) of the Federal Rules of Civil Procedure. (Docket No. 14, 16). For the following reasons, it is recommended that Plaintiff's motion should be denied, the Commissioner's motion should be granted, and this case should be dismissed.
I. BACKGROUND
A. Administrative Proceedings
Plaintiff applied for benefits on February 14, 2018, alleging disability beginning January 31, 2014. (T at 99, 288-89).Plaintiff's application was denied initially and on reconsideration. She requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on November 9, 2019, before ALJ John Barry. (T at 37-53). Plaintiff appeared without an attorney and testified. (T at 43-50). A further administrative hearing was held February 18, 2020, before ALJ Barry. (T at 54-59). Plaintiff appeared with attorney and obtained an adjournment. (T at 58).
Citations to “T” refer to the administrative record transcript at Docket No. 13.
A further administrative hearing was held on January 5, 2022, before ALJ Kiernan McCormack. (T at 60-98). Plaintiff appeared with an attorney and testified. (T at 69-93). The ALJ also received testimony from Jay Steinbrenner, a vocational expert. (T at 94-96).
B. ALJ's Decision
On January 28, 2022, ALJ McCormack issued a decision denying the application for benefits. (T at 7-25). The ALJ found that Plaintiff last met the insured status requirements of the Social Security Act on September 30, 2015 (the “date last insured”). (T at 13). The ALJ determined that Plaintiff did not engage in substantial gainful activity between January 31, 2014 (the alleged onset date) and the date last insured. (T at 13).
The ALJ concluded that, as of the date last insured, Plaintiff's pericarditis was a severe impairment as defined under the Act. (T at 13). However, the ALJ found that, as of the date last insured, 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 15).
At step four of the sequential analysis the ALJ determined that, as of the date last insured, Plaintiff retained the residual functional capacity (“RFC”) to perform the full range of sedentary work, as defined in 20 CFR 404.1567 (a) and 416.967 (a). (T at 15).
The ALJ concluded that, as of the date last insured, Plaintiff could not perform her past relevant work as a special agent or inventory control clerk. (T at 18). However, considering Plaintiff's age (37 on the date last insured), education (at least high school), work experience, and RFC, the ALJ determined that there were jobs that existed in significant numbers in the national economy that Plaintiff could perform as of the date last insured (T at 18-19).
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 January 31, 2014 (the alleged onset date) and September 30, 2015 (the date last insured). (T at 19).
On May 12, 2022, 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 June 6, 2022. (Docket No. 1). Plaintiff filed a motion for judgment on the pleadings, supported by a memorandum of law, on January 10, 2023. (Docket Nos. 14, 15). The Commissioner interposed a cross-motion for judgment on the pleadings, supported by a memorandum of law, on March 13, 2023. (Docket Nos. 16, 17). On April 3, 2023, Plaintiff submitted a reply memorandum of law in further support of her motion. (Docket No. 18). The matter was assigned to the undersigned for a Report and Recommendation on November 8, 2023.
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 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 two main arguments in support of her challenge to the ALJ's decision. First, she contends that the ALJ failed to adequately address the medical opinion evidence, which undermined the step two severity analysis and RFC determination. Second, Plaintiff asserts that the ALJ's credibility assessment was flawed. This Court will address both arguments in turn.
A. Medical Opinion Evidence
“Regardless of its source, the ALJ must evaluate every medical opinion in determining whether a claimant is disabled under the [Social Security] Act.” Pena ex rel. E.R. v. Astrue, No. 11-CV-1787 (KAM), 2013 WL 1210932, at *14 (E.D.N.Y. Mar. 25, 2013) (citing 20 C.F.R. §§ 404.1527(c), 416.927(d) (2020)) (internal quotation marks omitted).
In January of 2017, the Social Security Administration promulgated new regulations regarding the consideration of medical opinion evidence. The revised regulations apply to claims filed on or after March 27, 2017. See 20 C.F.R. § 404.1520c. Because Plaintiff applied for benefits after that date, the new regulations apply here.
The ALJ no longer gives “specific evidentiary weight to medical opinions,” but rather considers all medical opinions and “evaluate[s] their persuasiveness” based on supportability, consistency, relationship with the claimant, specialization, and other factors. See 20 C.F.R. § 404.1520c (a), (b)(2). The ALJ is required to “articulate how [he or she] considered the medical opinions” and state “how persuasive” he or she finds each opinion, with a specific explanation provided as to the consistency and supportability factors. See 20 C.F.R. § 404.1520c (b)(2).
Consistency is “the extent to which an opinion or finding is consistent with evidence from other medical sources and non-medical sources.” Dany Z. v. Saul, 531 F.Supp.3d 871, 882 (D. Vt. 2021)(citing 20 C.F.R. § 416.920c(c)(2)). The “more consistent a medical opinion” is with “evidence from other medical sources and nonmedical sources,” the “more persuasive the medical opinion” will be. See 20 C.F.R. § 404.1520c(c)(2).
Supportability is “the extent to which an opinion or finding is supported by relevant objective medical evidence and the medical source's supporting explanations.” Dany Z, 531 F.Supp.3d at 881. “The more relevant the objective medical evidence and supporting explanations presented by a medical source are to support his or her medical opinion(s) or prior administrative medical finding(s), the more persuasive the medical opinions or prior administrative medical finding(s) will be.” 20 C.F.R. § 404.1520 (c)(1), 416.920c(c)(1).
In the present case, Brandi Aquino, PA completed a headache impairment questionnaire in December of 2019. She began treating Plaintiff in August of 2019 for chronic migraines. (T at 1221).
PA Aquino characterized Plaintiff's prognosis as “good,” but reported that Plaintiff's experience of pain and other symptoms was severe enough to frequently interfere with her attention and concentration. (T at 1221, 1224). Stress and anxiety contributed to the severity of symptoms and functional limitations. (T at 1224).
PA Aquino believes Plaintiff is not a malingerer and is limited to work involving no more than moderate stress. (T at 1225). She opined that Plaintiff would be precluded from performing even basic work activities during a headache, would have “good” and “bad” days, and would likely be absent from work 2 to 3 times per month due to her impairments or treatment. (T at 1225-1226).
Dr. Elizabeth Zick completed a headache impairment questionnaire in December of 2019. Dr. Zick is a family physician and began treating Plaintiff in June of 2016. (T at 1211). She described Plaintiff's prognosis as “fair” and reported that Plaintiff suffered from severely intense headaches 4 times a week, along with nausea/vomiting, and photosensitivity. (T at 1212). Plaintiff's headaches are aggravated by bright lights, stress, movement, and noise. (T at 1213).
Dr. Zick opined that Plaintiff's pain and symptoms would frequently interfere with her ability to concentrate, Plaintiff would be precluded from even basic work activities during headaches, would have “good” days and “bad” days, and would likely be absent from work due to her impairments or treatment more than 3 times per month. (T at 1214-16).
Dr. Uri Napchan, a neurologist, completed a headache impairment questionnaire in March of 2020. Dr. Napchan diagnosed chronic migraines and characterized Plaintiff's prognosis as “guarded.” (T at 2094). He described Plaintiff's migraines as severe, frequent, and lasting an entire day with nausea and photophobia. (T at 2094). The headaches are aggravated by bright lights, stress, movement, and noise. (T at 2096).
Dr. Napchan opined that Plaintiff's experience of pain and other symptoms was severe enough to frequently interfere with her attention and concentration. (T at 2097). He does not believe Plaintiff is a malingerer. (T at 2098). Dr. Napchan reported that Plaintiff would be precluded from even basic work activities during a headache, would have “good” days and “bad” days, and would likely be absent from work more than 3 times per month. (T at 2098-99).
The ALJ found these opinions unpersuasive. (T at 17). The ALJ highlighted that the opinions were rendered well after the date last insured and were based on treatment that occurred outside the relevant time period. (T at 17). In addition, the ALJ found the assessments of disabling limitations inconsistent with the treatment record from prior to the date last insured (T at 17), which did not establish that Plaintiff's migraines were a “severe” impairment within the meaning of the Social Security Act. (T at 13).
For the following reasons the Court concludes that the ALJ's assessment is supported by substantial evidence and is consistent with applicable law.
The ALJ's conclusion that Plaintiff failed to establish that her migraines were a severe impairment, as defined under the Act, prior to the date last insured is supported by a reasonable reading of the record.
Treatment notes from prior to the date last insured occasionally document complaints of headaches but are not consistent with claims of disabling limitations. (T at 2102, 2108). Rather, they describe Plaintiff as taking Excedrin “as needed” and experiencing relief from that over-the-counter treatment. (T at 2108, 2116, 2123, 2125). The ALJ underscored the absence of evidence of the sort of treatment one would expect if Plaintiff were experiencing disabling pain and limitation during the period at issue. Instead, the ALJ reasonably read the record as demonstrating that Plaintiff's migraines were reasonably well-controlled during the period at issue.
This was sufficient to sustain the ALJ's conclusion under the deferential standard of review applicable here. See McGinley v. Comm'r of Soc. Sec., No. 1:18-CV-129-TPK, 2019 WL 2089832, at *5 (W.D.N.Y. May 13, 2019)(“The ALJ both correctly summarized and adequately discussed the treatment records, which are somewhat sparse, and determined, based on that evidence, that Plaintiff's headaches were adequately controlled to the point that they did not interfere with his ability to work, at least beyond those limitations contained in the ALJ's residual functional capacity finding.”); Christine M. v. Comm'r of Soc. Sec., No. 1:20-CV-01226-MJR, 2022 WL 130900, at *8 (W.D.N.Y. Jan. 14, 2022)(“Although plaintiff argues that the evidence warranted additional RFC restrictions for migraines, she has not supported her conclusion with reference to any evidence that the ALJ overlooked or improperly discredited.”); see also Grant v. Saul, No. 3:18-CV-00261 (KAD), 2020 WL 1307106, at *5 (D. Conn. Mar. 18, 2020).
“Substantial evidence is “a very deferential standard of review — even more so than the ‘clearly erroneous' standard." Brault v. SSA, 683 F.3d 443, 447-48 (2d Cir. 2012) (per curiam) (citation omitted). “The substantial evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Id. at 448 (emphasis in original) (citation and internal quotation marks omitted). “The role of the reviewing court is therefore quite limited and substantial deference is to be afforded the Commissioner's decision.” Johnson v. Astrue, 563 F.Supp.2d 444, 454 (S.D.N.Y. 2008)(citation and internal quotation marks omitted).
Plaintiff argues that the ALJ erred by discounting the opinions of Dr. Napchan, Dr. Zick, and PA Aquino simply because they were rendered after the date last insured. Plaintiff contends that these treating provider assessments provide persuasive evidence of disabling limitation that preceded the date last insured.
“Retrospective diagnoses and opinions are those from a treating physician that relate to a time period in the past, including periods when the physician was not the treating source.” Lacava v. Astrue, No. 11-cv-7727 (WHP) (SN), 2012 WL 6621731, at *13 (S.D.N.Y. Nov. 27, 2012), report and recommendation adopted, 2012 WL 6621722 (Dec. 19, 2012)
While a retrospective assessment is generally not considered as persuasive as a contemporaneous evaluation, “[t]he fact that a treating physician did not have that status at the time referenced in a retrospective opinion does not mean that the opinion should not be given some, or even significant weight.” Monette v. Astrue, 269 Fed.Appx. 109, 113 (2d Cir. 2008).
Indeed, “[d]iagnosis of a claimant's condition for social security disability benefits may properly be made even several years after the actual onset of the impairment and such diagnosis must be evaluated in terms of whether, considered in light of entire record, it establishes ... impairment.” Caldwell v. Comm'r of Soc. Sec., No. 19-CV-6534 (OTW), 2020 WL 6162133, at *5 (S.D.N.Y. Oct. 21,2020), aff'd, No. 20-4077-CV, 2022 WL 728661 (2d Cir. Mar. 11, 2022).
Notably, however, a retrospective opinion unsupported by, or inconsistent with, the contemporaneous evidence will not support a disability finding. See id.; Kelly v. Sullivan, No. 88-cv-5717 (MJL), 1990 WL 96758, at *6 (S.D.N.Y. July 5, 1990).
Here, that is precisely the situation.
PA Aquino began treating Plaintiff in August of 2019 (T at 1221), nearly four (4) years after the date last insured. More importantly, her opinion is not really retrospective. When asked to provide her best medical opinion as to the earliest date her description of symptoms and assessment of limitations applied, PA Aquino explained that her first visit with Plaintiff was in August of 2019, while noting that Plaintiff “reports symptoms for years.” (T at 1226).
Dr. Napchan responded to the same question by referencing “2017,” which is consistent with the ALJ's conclusion that Plaintiff's migraines did not become disabling until after the date last insured. (T at 2099).
Dr. Zick began treating Plaintiff in June of 2016, which is much closer in proximity to the date last insured in September of 2015. Moreover, Dr. Zick opined Plaintiff's symptoms and limitations began in “2012 when symptoms prevented work.” (T at 1216).
Although Dr. Zick's opinion is supportive of Plaintiff's argument, it is not accompanied by any reference to clinical findings or treatment notes from prior to the date last insured. And the ALJ reasonably found Dr. Zick's opinion inconsistent with the record, which (as discussed above) does not contain the sort of evidence one would expect if Plaintiff had been experiencing disabling migraine symptoms prior to the date last insured. See Primo v. Comm'r of Soc. Sec., No. 17 CV 6875-LTS-SLC, 2021 WL 1172248, at *4 (S.D.N.Y. Mar. 29, 2021)(“Dr. Wiedershine's unelaborated retrospective statement that Plaintiff's symptoms existed based on ‘patient history,' without documentation of that history, does not, on the record before the Court, constitute a ‘well-supported' opinion that the ALJ would be required to accept as controlling.”)(citing Micheli v. Astrue, 501 Fed.Appx. 26, 29 (2d Cir. 2012)).
Accordingly, for these reasons the Court finds no error in the ALJ's consideration of the medical opinion evidence.
B. Credibility
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)).
If the ALJ discounts the claimant's credibility, the ALJ “must explain the decision to reject a claimant's testimony “with sufficient specificity to enable the [reviewing] Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether [the ALJ's] decision is supported by substantial evidence.” Calzada v. Astrue, 753 F.Supp.2d 250, 280 (S.D.N.Y. 2010)(alterations in original, citations omitted).
In the present case, Plaintiff testified as follows: She has suffered for years with “really bad headaches.” (T at 44-45, 84). Migraines occurred randomly on a daily basis prior to the date last insured. (T at 85, 91-92). She has chronic pain in her shoulders and neck, which are related to migraines. (T at 49). Prior to the date last insured, Plaintiff had sharp pain in her upper neck and shoulders, which was “usually an indicator that a migraine is coming” (T at 86-87, 90-91). She also has been unable to work because of symptoms of chronic pericarditis. (T at 47).
During the relevant period, Plaintiff experienced a feeling like an “elephant sitting on my chest,” which was aggravated by lying down (T at 86). She is able to perform light household chores but needs help from her husband shopping and carrying things (T at 88). During a migraine, Plaintiff takes medication and “try to sleep it off” (T at 92). She must be in a dark room when experiencing a headache (T at 93). Her medications caused nausea and jitteriness and have not been effective in treating her headaches (T at 85, 88).
The ALJ found that Plaintiff's medically determinable impairments could reasonably be expected to cause the alleged symptoms, but concluded that Plaintiff's statements as to the intensity, persistence, and limiting effects of those symptoms prior to the date last insured were not entirely credible. (T at 17).
The Court finds the ALJ's assessment supported by substantial evidence and consistent by applicable law. As discussed above, the treatment record from prior to the date last insured evidences that Plaintiff's headaches were generally well-controlled with over-the-counter medication (Excedrin). (T at 13, 2116). The record from the relevant period documents only three occasions on which Plaintiff complained of headaches. (T at 13, 2102, 21116, 2123).
When asked to provide his best medical opinion as to the earliest date his description of severe symptoms and limitations applied, Dr. Napchan (the treating neurologist) responded by referencing “2017,” which is supportive of the ALJ's conclusion that Plaintiff's migraines were not disabling prior to the date last insured. (T at 2099).
An ALJ has the discretion to discount a claimant's subjective complaints where, as here, those complaints can be considered inconsistent with the overall clinical assessments and treatment notes. See Kuchenmeister v. Berryhill, No. 16 Civ. 7975, 2018 U.S. Dist. LEXIS 9750, at *59 (S.D.N.Y. Jan. 19, 2018); Rodriguez v. Colvin, No. 15 Civ. 6350, 2016 U.S. Dist. LEXIS 159003, at *68-69 (S.D.N.Y. Nov. 14, 2016); Robles v. Colvin, No. 16CV1557 (KMK) (LMS), 2019 U.S. Dist. LEXIS 62118, at *51 (S.D.N.Y. Apr. 9, 2019).
This case does present a sympathetic situation. Plaintiff, a veteran who served her country in Iraq, may have currently significant symptoms and limitations related to her medical conditions, including, in particular, severe migraine headaches.
For the reasons discussed above, the ALJ's conclusion that Plaintiff did not meet the statutory disability definition prior to the date last insured is supported by substantial evidence and must therefore be sustained. See Vincent v. Shalala, 830 F.Supp. 126, 129 (N.D.N.Y. 1993)(recognizing that “the temptation to blur the distinction between individual need and statutory eligibility is strong; but our authority as judges often fails to match our sympathy for our fellow human beings”)(quoting Singletary v. Sec'y of Health & Human Services, 623 F.2d 217, 220 (2d Cir.1980) (Meskill, J., dissenting)).
IV. CONCLUSION
For the foregoing reasons, it is respectfully recommended that Plaintiff's Motion for Judgment on the Pleadings (Docket No. 14) should be DENIED; the Commissioner's Motion for Judgment on the Pleadings (Docket No. 16) should be GRANTED; and this case should be dismissed.
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).