Petersen v. Astrue

• Citation: 2 F.Supp.3d 223
• Decision Date: 25 September 2012
• Docket Number: No. 3:11–CV–0116 (GTS/VEB).,3:11–CV–0116 (GTS/VEB).
• Parties: Craig PETERSEN, Plaintiff, v. Michael J. ASTRUE, Comm'r of Soc. Sec., Defendant.
• Court: U.S. District Court — Northern District of New York

2 F.Supp.3d 223

Craig PETERSEN, Plaintiff,

v.Michael J. ASTRUE, Comm'r of Soc. Sec., Defendant.

No. 3:11–CV–0116 (GTS/VEB).

United States District Court,

N.D. New York.

Signed Sept. 25, 2012.

Lachman & Gorton, Peter A. Gorton, Esq., of Counsel, Endicott, NY, for Plaintiff.

Social Security Administration, Office of Gen. Counsel—Region II, Andreea L. Lechleitner, Esq., of Counsel, New York, NY, for Defendant

MEMORANDUM–DECISION and ORDER

GLENN T. SUDDABY, District Judge.

Currently before the Court, in this action by Craig Petersen (“Plaintiff”) against Social Security Commissioner Michael J. Astrue (“Defendant”) seeking Social Security benefits pursuant to 42 U.S.C. § 405(g), is the Report–Recommendation of United States Magistrate Judge Victor E. Bianchini, issued pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 72.1(c) of the Local Rules of Practice for this Court, recommending that this action be remanded to the Commissioner for further proceedings in accordance with the Report–Recommendation. (Dkt. No. 22.) No objections to the Report–Recommendation have been filed by the parties. For the reasons set forth below, the Report–Recommendation is accepted and adopted in its entirety.

I. RELEVANT BACKGROUNDA. Procedural History

Because neither party has objected to Part II of Magistrate Judge Bianchini's Report–Recommendation, which sets forth the procedural background of this action, the Court adopts that part's description of this action's procedural background. ( See generally Dkt. No. 22, at Part II [Report–Rec].)

In January 2008, Plaintiff applied for disability insurance benefits (“DIB”) and supplemental security income (“SSI”) under the Social Security Act based on physical and mental impairments which left him unable to work.¹ ( See Administrative Transcript [“T.”] at 91–98.) ² Plaintiff's application was initially denied by the Social Security Administration; and on April 9, 2010, a hearing was held before an Administrative Law Judge (“ALJ”) of the Social Security Administration. (T. at 24.)

On June 22, 2010, the ALJ issued his decision, finding that Plaintiff became disabled under the Social Security Act on May 22, 2010, but had not been disabled prior to that date. (T. at 10–17.) Plaintiff appealed this decision to the Social Security Administration's Appeals Council; and on January 10, 2011, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of Defendant. (T. at 1–4.) On February 2, 2011, Plaintiff commenced this action in federal court. (Dkt. No. 1.)

Generally, in support of his Complaint, Plaintiff asserts the following three arguments: (1) the ALJ erred in assessing Plaintiff's credibility (Dkt. No. 14 at 1); (2) the ALJ's assessment of Plaintiff's residual functional capacity was improper and was not supported by substantial evidence ( id. at 2); and (3) the ALJ should have consulted a vocational expert in determining Plaintiff's ability to perform work ( id. at 3). Generally, in response, Defendant disagrees with each of these three arguments, and argues that the Commissioner's decision should be affirmed. (Dkt. No. 16.)

B. Magistrate Judge Bianchini's Report–Recommendation

On August 10, 2012, Magistrate Judge Bianchini issued a Report–Recommendation recommending that Petitioner's case be remanded to the Commissioner for further review on the following grounds: (1) the ALJ's analysis with respect to Plaintiff's RFC determination is flawed and contradicts substantial evidence in the record (specifically, the ALJ judge relied on the opinion of the consultative examiner's opinion which is not supportive of the ALJ's RFC assessment); (2) the ALJ's analysis of Plaintiff's psychiatric impairments (a) differs from the consultative psychologist's opinion which noted Plaintiff's inability to maintain attention and concentration, and (b) fails to account for the relevant mental demands associated with basic sedentary work and a vocational expert should be consulted to clarify the record; (3) because the ALJ's analysis of Plaintiff's credibility was brief and conclusory, and is unsupported by evidence in the record, it requires further analysis once Plaintiff's physical and mental limitations are reassessed by the ALJ. (Dkt. No. 22, at Part III.B.)

II. APPLICABLE LEGAL STANDARDSA. Standard of Review Governing a Report–Recommendation

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed.R.Civ.P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).³ When performing such a de novo review, “[t]he judge may ... receive further evidence ....” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.⁴

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b)(2),(3); Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. ⁵ Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.⁶ Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed.R.Civ.P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error” review, “the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.” Id.⁷

After conducting the appropriate review, the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

B. Standard Governing Judicial Review of Defendant's Decision

In Part III.A. of his Report–Recommendation, Magistrate Judge Bianchini correctly recites the legal standard governing judicial review of Defendant's decision. (Dkt. No. 22, at Part III.A.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.

III. ANALYSIS

After carefully reviewing all of the papers in this action, including Magistrate Judge Bianchini's Report–Recommendation, the Court concludes that Magistrate Judge Bianchini's thorough Report–Recommendation is correct in all respects. Magistrate Judge Bianchini employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Dkt. No. 22.) As a result, the Court accepts and adopts the Report–Recommendation in its entirety for the reasons stated therein.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Bianchini's Report–Recommendation (Dkt. No. 22) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that the case is remanded to the Commissioner for further proceedings consistent with the Report–Recommendation (Dkt. No. 22).

REPORT AND RECOMMENDATION

VICTOR E. BIANCHINI, United States Magistrate Judge.

I. INTRODUCTION

In January of 2008, Plaintiff Craig Petersen applied for Disability Insurance Benefits (“DIB”) and Supplemental SecurityIncome (“SSI”) benefits under the Social Security Act. Plaintiff alleges that he has been unable to work since January of 2004. The Commissioner of Social Security granted Plaintiff's application, in part, finding that Plaintiff became disabled under the Social Security Act beginning on May 22, 2010, but that Plaintiff had not been disabled prior to that date.

Plaintiff, by and through his attorneys, Lachman & Gorton, Peter A. Gorton, Esq., of counsel, commenced this action seeking judicial review of the unfavorable portion of the Commissioner's decision pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3).

The Honorable Gary L. Sharpe, Chief United States District Judge, referred this case to the undersigned for a Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1)(A) and (B). (Docket No. 21).

II. BACKGROUND

The relevant procedural history may be summarized as follows:

In January of 2008, Plaintiff applied for SSI benefits and DIB, alleging that he had been unable to work since January 1, 2004. (T at 91–93, 94–98). ¹ The Commissioner initially denied the applications and Plaintiff timely requested a hearing before an Administrative Law Judge (“ALJ”). A hearing was held on April 9, 2010, before ALJ Richard West. (T at 24). Plaintiff appeared in Binghamton, New York; the ALJ presided via videoconference from Newark, New Jersey. (T at 10). Plaintiff appeared pro se and testified. (T at 29–49). Testimony was also received from two witnesses, Christina Boyea and Linda Jumper. (T at 50–56).

On June 22, 2010, the ALJ issued a written decision finding that Plaintiff became disabled under the Social Security Act on May 22, 2010, but had not been disabled prior to that date. (T at 10–17). The ALJ's decision became the Commissioner's final decision on January 10, 2011, when the Social Security Administration Appeals Council denied Plaintiff's request for review. (T at 1–4).

Plaintiff, by and through Peter A. Gorton, Esq., commenced this action by filing a Complaint on February 2, 2011. (Docket No. 1). The Commissioner interposed an Answer on June 1, 2011. (Docket No. 8). Plaintiff filed a supporting Brief on October 5, 2011. (Docket No. 14). The Commissioner filed a Brief in opposition on October 31, 2011. (Docket No. 16). Plaintiff requested and received...