Norman v. Astrue

• Decision Date: 25 September 2012
• Docket Number: No. 10 Civ. 5839(ALC)(HBP).,10 Civ. 5839(ALC)(HBP).
• Citation: 912 F.Supp.2d 33
• Parties: Nelson NORMAN, Plaintiff, v. Michael J. ASTRUE, Commissioner of Social Security, Defendant.
• Court: U.S. District Court — Southern District of New York

912 F.Supp.2d 33

Nelson NORMAN, Plaintiff,

v.Michael J. ASTRUE, Commissioner of Social Security, Defendant.

No. 10 Civ. 5839(ALC)(HBP).

United States District Court, S.D. New York.

Sept. 25, 2012.

Howard David Olinsky, Olinsky & Shurtliff, Syracuse, NY, for Plaintiff.

Susan D. Baird, U.S. Attorney's Office, New York, NY, for Defendant.

OPINION & ORDER

ANDREW L. CARTER, JR., District Judge.

Plaintiff Nelson Norman brings this action pursuant to Section 205(g) of the Social Security Act (“SSA”), as amended, 42 U.S.C. §§ 405(g), 1383(c)(3), to seek review of a final decision of the Commissioner of Social Security (“defendant”) denying his application for Social Security Income (“SSI”) benefits. Both plaintiff and the defendant have moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. (ECF 12 and 14.) In his report and recommendation (the “Report”), Magistrate Judge Henry B. Pitman concluded that the plaintiff's motion should be granted and that defendant's motion should be denied, and recommended that the case be remanded for further proceedings. Specifically, Magistrate Judge Pitman recommends that on remand: (1) the Administrative Law Judge (“ALJ”) consider whether plaintiff meets the requirements of Listing 1.04A and explain his reasoning for his ultimate determination; (2) the ALJ confirm that all relevant medical records from Dr. Beale have been provided to the SSA and specify the weight ultimately given to Dr. Beale's opinion, consistent with the rules governing a “treating physician”; and (3) the ALJ reassess plaintiff's credibility and clearly set forth the support for his ultimate determination. Defendant was granted an additional thirty days to object and filed timely objections to the Report on April 11, 2012. Defendant objects to the Report on four grounds: (1) Judge Pitman erred in referencing a previous ALJ decision rather than solely the final ALJ decision; (2) the ALJ's evaluation of plaintiff's impairments at step three of the sequential evaluation was supported by substantial evidence; (3) the ALJ's evaluation of Dr. Beak's assessment was correct under the applicable rules; and (4) the ALJ properly assessed plaintiff's credibility.

The court has reviewed the issues de novo and reached the same conclusions as did Judge Pitman as expressed in his well-reasoned Report. As such, Judge Pitman's Report is adopted in full. I will address defendant's specific objections herein.

BACKGROUND

The Court assumes familiarity with the background and procedural posture of this case, and incorporates fully the description contained within Magistrate Judge Pitman's thorough and detailed Report.

DISCUSSION

I. Standards of Review

A. Review of the Magistrate Judge's Report

A district court may designate a magistrate to hear and determine certain motions and to submit to the court proposed findings of fact and a recommendation as to the disposition of the motions. See28 U.S.C. § 636(b)(1). Within fourteen days of service of the recommendation, any party may file written objections to the magistrate's report. Id. In evaluating the report, the court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” Id. Where a party submits timely objections to a report and recommendation, the district court reviews de novo the parts of the report and recommendation to which the party objected. See id.;Fed.R.Civ.P. 72(b); see, e.g., Eisenberg v. New England Motor Freight Inc., 564 F.Supp.2d 224, 226–27 (S.D.N.Y.2008). Where no “specific written objection” is made, the district court may adopt those portions “as long as the factual and legal basis supporting the findings and conclusions set forth ... are not clearly erroneous or contrary to law.” Eisenberg, 564 F.Supp.2d at 226.

B. Review of the Administrative Law Judge's Decision

When a claimant seeks review of a Social Security hearing regarding disability benefits, the Court's function is not to determine de novo whether the claimant is disabled, but rather to determine only “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir.2004); see also Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir.1998) (“[I]t is not our function to determine de novo whether plaintiff is disabled.”). The Supreme Court has defined “substantial evidence” as “more than a mere scintilla” of evidence, and means “such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971) (internal quotation marks omitted); Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir.2002) (internal quotation marks omitted); Pratts v. Chater, 94 F.3d 34, 37 (2d Cir.1996). Review of the ALJ's application of legal principles is de novo. Pollard v. Halter, 377 F.3d 183, 188 (2d Cir.2004).

II. Defendant's ObjectionsA. Consideration of a Non–Final Decision

Defendant argues that the Report repeatedly “considers” an ALJ decision issued on December 28, 2005, which was vacated by the Appeals Council, and that such consideration is prohibited by sections 405(g) and (h) of the Social Security Act. “It is well settled” that these provisions of the Social Security Act provide that “judicial review of Social Security benefit determinations is limited to ‘final’ decisions of the Commissioner made after a hearing, that available administrative procedures must be exhausted and that a final decision is a prerequisite for subject matter jurisdiction in the District Court.” Mathews v. Chater, 891 F.Supp. 186, 188 (S.D.N.Y.1995) (citing Califano v. Sanders, 430 U.S. 99, 103 n. 3, 97 S.Ct. 980, 51 L.Ed.2d 192 (1977)).¹

In this case, three ALJ decisions were issued rejecting the plaintiff's disability claim, including one issued in December 2005. The plaintiff requested review of each decision, and each time the Appeals Council granted review and remanded the case for further consideration. Finally, in a decision dated May 29, 2008, the ALJ rejected the plaintiff's disability claim for a fourth time. This determination became the final decision of the Commissioner on June 10, 2010, upon the Appeals Council's denial of plaintiff's request for review. Shortly thereafter, plaintiff commenced the present action with this Court. It is not disputed that plaintiff exhausted his available administrative procedures or that this Court has subject matter jurisdiction over this case. Rather, defendant argues that Judge Pitman's various references to the December 2005 throughout his Report are “plainly erroneous” because the May 2008 decision is the only final decision. (Objection at 4.)

This Court disagrees. The requirements of 42 U.S.C. §§ 405(g) and (h) are prerequisites for subject matter jurisdiction, which plaintiff satisfied once he exhausted his administrative procedures and obtained a final decision after being denied review from the Appeals Council. See Stoothoff v. Apfel, No. 98–cv–5724 (JGK), 1999 WL 493356, at *2 (S.D.N.Y. July 12, 1999) (citing Sanders, 430 U.S. at 103 n. 3, 97 S.Ct. 980);see also Ryan v. Bentsen, 12 F.3d 245, 247 (D.C.Cir.1993) (“The Secretary's ‘final decision’ is a prerequisite to subject matter jurisdiction in the district court and consists of two components, a presentment requirement and an exhaustion requirement.”). Defendant cites no support for the proposition that once the Appeals Council vacates and remands a decision, all that was included in the administrative record ceases to be relevant such that a reviewing court cannot refer to parts of prior ALJ decisions. Arguing that a district judge cannot “review” a non-final decision for jurisdictional purposes is quite different than arguing that a judge cannot reference relevant facts contained within a prior, albeit vacated, ALJ decision. While the former is plainly erroneous, the latter is what the Magistrate Judge did here. Accordingly, this objection is overruled.

1. Listing Requirement

Defendant next argues that Judge Pitman erred in requiring the ALJ to explain his reasoning for concluding that the plaintiff did not have an impairment that meets any of the listed impairments in 20 C.F.R. Part 404, Subpart P, Appendix 1, because the ALJ's decision was nonetheless supported by substantial evidence. See Berry v. Schweiker, 675 F.2d 464, 468 (2d Cir.1982) (affirming ALJ's determination at step three even though it did not contain an express rationale, “since portions of the ALJ's decision and the evidence before him indicate that his conclusion was supported by substantial evidence”); see also Sava v. Astrue, No. 06–(GAY), 2010 WL 3219311, at *4 (S.D.N.Y. Aug. 12, 2010) (affirming determination of ALJ that step three was not met even though the ALJ did not give an express rationale where there was “sufficient uncontradicted evidence in the record to provide substantial evidence for [that] conclusion”). In Berry, the Second Circuit was careful to circumscribe the precedent it was setting:

[I]n spite of the ALJ's failure to explain his rejection of the claimed listed impairments, we were able to look to other portions of the ALJ's decision and to clearly credible evidence in finding that his determination was supported by substantial evidence. Cases may arise, however, in which we would be unable to fathom the ALJ's rationale in relation to evidence in the record, especially where credibility determinations and inference drawing is required of the ALJ. In such instances, we would not hesitate to remand the case for further findings or a clearer explanation for the decision. [citations omitted] Thus, in future cases in which the disability claim is premised upon one or more listed impairments of Appendix 1. the Secretary should set forth a sufficient rationale in support of his decision to find or not to find a listed impairment.

Id. at 469 (emphasis added). Here, it is...