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Cherry v. Colvin

United States District Court, D. Connecticut

January 14, 2016

CAROLYN COLVIN, Acting Commissioner of the Social Security Administration, Defendant.


Stefan R. Underhill United States District Judge

Plaintiff William Cherry appealed from the adverse decision of the Commissioner of Social Security denying his applications for a period of disability insurance benefits and supplemental security income. On June 29, 2015, U.S. Magistrate Judge William I. Garfinkel issued a recommended ruling (the “Recommended Ruling”) recommending that the decision of the Commissioner be affirmed (doc. # 26). Cherry filed an objection to the Recommended Ruling on July 13, 2015 (doc. # 27), and a memorandum in support of that objection with respect to particular portions of the Recommended Ruling on August 18, 2015 (doc. # 34). For the reasons set forth below, Cherry’s objection is overruled. The Recommended Ruling is adopted and the decision of the Commissioner is affirmed.

I. Background

The court assumes the parties’ familiarity with the underlying facts. A full statement of the relevant facts can be found in Magistrate Judge Garfinkel’s Recommended Ruling. See Recommended Ruling, Cherry v. Colvin, 3:13-cv-1440 (doc. # 26).

II. Standard of Review

“In the face of an objection to a Magistrate Judge’s recommended ruling, the [d]istrict [c]ourt makes a de novo determination of those portions of the recommended ruling to which an objection is made.” Smith v. Barnhart, 406 F.Supp.2d 209, 212 (D. Conn. 2005); see also Burden v. Astrue, 588 F.Supp.2d 269, 271 (D. Conn. 2008). The court may adopt, reject, or modify, in whole or in part, the Magistrate Judge's recommended ruling. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b).

A district court may enter a judgment “affirming, modifying, or reversing the decision of the Commissioner of Social Security, with or without remanding the cause for a rehearing.” 42 U.S.C. § 405(g). Judicial review of the Commissioner’s decision is limited. Yancey v. Apfel, 145 F.3d 106, 111 (2d Cir. 1998). It is not the court’s function to determine de novo whether the claimant was disabled. See Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). Rather, the court must review the record to determine first whether the correct legal standard was applied and then whether the record contains substantial evidence to support the decision of the Commissioner. 42 U.S.C. § 405(g) (“The findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive . . . .”); see Bubnis v. Apfel, 150 F.3d 177, 181 (2d Cir. 1998); Balsamo v. Chater, 142 F.3d 75, 79 (2d Cir. 1998).

When determining whether the Commissioner’s decision is supported by substantial evidence, the court must consider the entire record, examining the evidence from both sides. Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988). Substantial evidence need not compel the Commissioner’s decision; rather substantial evidence need only be evidence that “a reasonable mind might accept as adequate to support [the] conclusion” being challenged. Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002) (internal quotation marks and citations omitted). “Even where the administrative record may also adequately support contrary findings on particular issues, the ALJ’s factual findings must be given conclusive effect so long as they are supported by substantial evidence.” Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010) (internal quotation marks and citation omitted).

III. Discussion

Cherry raises three objections to Magistrate Judge Garfinkel’s Recommended Ruling, arguing that the ruling errs by: (1) rejecting Cherry’s argument that the administrative law judge (“ALJ”) failed to sufficiently develop the record, which is made clear by new and material evidence that has arisen since the Recommended Ruling was issued; (2) rejecting Cherry’s argument that the ALJ had no basis to find that Cherry has a residual functional capacity (“RFC”) to do light work; and (3) rejecting Cherry’s argument that the ALJ’s credibility determinations were insufficiently supported. Those objections are considered in turn.

A. ALJ’s Development of the Record and New Evidence

The ALJ has a duty to “affirmatively develop the record in light of the essentially non-adversarial nature of a benefits proceeding, ” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009), and that duty is heightened where, as here, the claimant appears pro se in proceedings before the Commisioner. Id. at 113. Cherry reasserts his argument, which Judge Garfinkel rejected, that the ALJ in his case failed to sufficiently perform that duty, and he purports to have new and material evidence that was not available when Judge Garfinkel considered the argument: the fact that he filed a second application for disability benefits and received a favorable outcome.

Cherry’s argument that a subsequent grant of a disability claim is “new and material evidence”[1] in a proceeding challenging the denial of an earlier one relies primarily on the Ninth Circuit’s decision in Luna v. Astrue, 623 F.3d 1032 (9th Cir. 2010). That decision affirmed a district court’s ruling that a finding of disability based on a second application for benefits warranted remanding for further factual consideration an earlier denial because the finding of disability “commenced at or near the time” of the contrary finding. Id. at 1034. The Luna Court favorably quoted the District Court in Reichard v. Barnhart, 285 F.Supp.2d 728 (S.D. W.Va. 2003), which noted that “in certain circumstances, an award based on an onset date coming in immediate proximity to an earlier denial of benefits is worthy of further administrative scrutiny.” Id. at 734. Neither Luna nor Reichard stands for the proposition that subsequent findings of disability necessarily cast doubt on earlier contrary findings, as Cherry seems to imply, but rather that they might, particularly when the contrary findings are close to each other in time.

There is also contrary authority. The Sixth Circuit’s reasoning in Allen v. Commissioner of Social Security, 561 F.3d 646 (6th Cir. 2009), was perhaps not inconsistent with the Luna-Reichard principle, but it was at least cast in more skeptical language: “A subsequent favorable decision may be supported by evidence that is new and material . . ., but the decision is not itself new and material evidence.” Id. at 653. That reasoning might allow that a favorable decision close on the heels of an unfavorable one could be probative of something, though the effect of the later decision on review of the earlier one would not depend solely on their temporal proximity but rather must turn on what evidence underlies the later decision. The Second Circuit has ventured still further from Luna-Reichard-albeit in a non-precedential summary order-and reasoned that ...

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