Opinion
1:16-cv-08580 (GBD) (SDA)
12-27-2017
Norma Iris Rivera, Plaintiff, v. Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE.
TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
Pro se plaintiff Norma Iris Rivera ("Rivera") brings this action pursuant to § 205(g) of the Social Security Act ("the Act"), 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security denying her application for Supplemental Security Income ("SSI"). (Compl., ECF No. 2.) Presently before the Court is the Commissioner's motion, pursuant to Fed. R. Civ. P. 12(c), for judgment on the pleadings. (Def.'s Notice of Mot., ECF No. 16.) Rivera has not responded to the Commissioner's motion, and the time to do so has passed. (See Scheduling Order, ECF No. 13.)
For the reasons set forth below, the Court recommends that the Commissioner's motion for judgment on the pleadings be DENIED and the case be REMANDED to the Commissioner in order that the five-step sequential analysis can be completed.
BACKGROUND
I. Procedural Background
Rivera filed for benefits on July 8, 2013, alleging a disability onset date of March 1, 2011. (Administrative R. ["R."] 10, 91, ECF No. 9.) On October 30, 2014, Rivera, appearing with counsel, had a hearing before Administrative Law Judge ("ALJ") Jerome Hornblass (R. 19-36), who denied Rivera's benefits application on March 11, 2015. (R. 7-18.) ALJ Hornblass's decision became the Commissioner's final decision when the Appeals Council denied review on August 31, 2016. (R. 1-3.) This action followed.
II. Non-Medical Evidence and Testimony
Born on July 22, 1951, Rivera was fifty-nine years old at the alleged March 1, 2011 onset of her disability and sixty-three years old at the time of the ALJ hearing. (R. 19, 91.) When applying for SSI, she reported her height as 5' 1" and her weight as 175 pounds. (R. 116.) She reported her medical conditions as arthritis, back pain and high cholesterol. (Id.) At the hearing, Rivera alleged disability due to pain in her legs and fingers, which she described as arthritis. (R. 22.) Her attorney stated that Rivera "suffer[ed] from severe impairments, including diabetes and arthritis." (R. 26.)
Rivera testified that she lived alone in an apartment in New York City (R. 22, 24), and had four children, all in their thirties and forties. (R. 23-24.) She stated that she had last worked in 2004, as a babysitter. (R. 23, 32.) She supported herself on welfare, food stamps and Medicaid. (R. 24.)
On an average day, Rivera woke up at 5:00 a.m. and cooked her own breakfast. (R. 30.) She then would dress herself, and "stay in the house for a little while" before going for a walk. (R. 31.) She often walked to her sister's apartment in Dunhill and occasionally stayed overnight. (Id.) Rivera also testified that she "once in a while" traveled to the Bronx to meet her friend, Rosa. (R. 28-29.)
Rivera failed to attend numerous consultative examinations scheduled by the Social Security Administration ("SSA") in connection with her application for benefits. Prior to the ALJ hearing, she did not attend two consultative examinations, one in December 2013 and the other in January 2014; she said she did not attend the January 2014 appointment because she did not feel well. (R. 39.) Then, after the hearing, she failed to attend two additional consultative examinations that had been scheduled. (R. 222-27.)
III. Medical Evidence Before the ALJ
The following medical records were part of the record before ALJ Hornblass:
May 3, 2013: William Ryan Community Health Center (R. 165-67): Rivera was examined by a physician's assistant ("PA") named YunYan Zheng. Rivera complained of a swollen left hand and thumb, and assessed this pain at level two on the pain scale. Upon physical examination, PA Zheng reported that Rivera displayed no spinal or paraspinal tenderness, and that she had full range of motion in her upper and lower extremities. Her right hand showed full pulse, sensation and range of motion, and her left hand was assessed as within normal limits. PA Zheng referred Rivera for a psychiatric evaluation, because of Rivera's history of anxiety and insomnia. PA Zheng started Rivera on 325 milligrams of Tylenol for tendonitis and also recommended rest and a hand splint.
July 10, 2013: William Ryan Community Health Center (R. 168-71): Rivera returned to the Center to refill her medication, obtain lab results and undergo a physical examination. The record indicates that she had insomnia and anxiety disorder. Rivera complained of pain in her "finger joints," which she assessed at level three on the pain scale, as well as arthritic pain. At this examination, she was examined by a physician, Dr. Yonhee Cha. Dr. Cha reported that Rivera was alert, oriented and in no acute distress. Moreover, she displayed no spinal or paraspinal tenderness. She also had full range of motion in her arms and legs. In addition, Dr. Cha reported that neurologically, Rivera had normal sensation and normal motor strength. The doctor assessed insomnia, anxiety disorder, type 2 diabetes and hyperlipidemia. Dr. Cha prescribed Ambien for Rivera's insomnia, and started her on Metformin for her diabetes.
"Hyperlipidemia" is defined as "elevated concentrations of any or all of the lipids in the plasma Dorland's Illustrated Medical Dictionary (31st ed., 2008).
August 2, 2013: Boriken Neighborhood Health Center (R. 189-91): Rivera underwent an annual physical examination conducted by a physician named Dr. Priti Borker. (R. 155.) Upon examination, Rivera was pleasant and in no acute distress. She reported a level zero on the pain scale. No abnormal examination results were noted. She was assessed with diabetes and hyperlipidemia.
August 6, 2013: Boriken Neighborhood Health Center (R. 187-88): Rivera returned to the Health Center due to a vitamin D insufficiency. In a progress note prepared by Dr. Borker, it was reported that Rivera was pleasant and in no acute distress. Moreover, she again reported a level zero on the pain scale. Dr. Borker's assessments were diabetes, vitamin D deficiency, hypertension and "hypercholesteremia" (sic). Dr. Borker refilled Rivera's diabetes medication, and noted that her blood pressure was fine during her last visit, but, if Rivera continued to display high blood pressure, she could be placed on medication. Dr. Borker started Rivera on Drisdol for her vitamin D deficiency.
"Hypercholesterolemia" is defined as "excess" levels of cholesterol in the blood. Dorland's Illustrated Medical Dictionary (31st ed., 2008).
September 3, 2013: Boriken Neighborhood Health Center (R. 183-85): A progress note from Dr. Borker reflects that Rivera visited the clinic to refill her medication, and complained of a rash. She reported a level zero on the pain scale. No abnormal examination findings were noted. Dr. Borker's assessments included diabetes, hypocholesteremia, obesity, vitamin D deficiency and hypertension.
September 13, 2013: Boriken Neighborhood Health Center (R. 181-82): A progress note from Dr. Lincoln Hernandez reflects that Rivera visited the clinic for a colon cancer screening. Upon physical examination, Dr. Hernandez reported that Plaintiff was pleasant and in no acute distress. Dr. Hernandez made no assessments regarding Rivera's medical conditions, but instead referred her for colon cancer screening.
November 7, 2013: Boriken Neighborhood Health Center (R. 179-80): A progress note from Dr. Michelle Sleater reflects that Rivera visited the Center to refill her medication. Dr. Sleater reported that Rivera was pleasant and in no acute distress. Rivera was at level zero on the pain scale. Dr. Sleater's assessment included diabetes, vitamin D deficiency and hyperlipidemia.
December 3, 2013: Boriken Neighborhood Health Center (R. 177-78): Dr. Borker saw Rivera to refill Rivera's medication. Dr. Borker reported that Rivera was in no acute distress. Rivera reported a level four on the pain scale and her back was normal. Dr. Borker's assessment included diabetes, vitamin D deficiency and hyperlipidemia, and Dr. Borker refilled Rivera's medications for these impairments.
January 29, 2014: Boriken Neighborhood Health Center (R. 206-07): Rivera visited the Center to refill her hyperlipidemia and diabetes medications. She reported that she felt well and had no complaints. Dr. Sleater reported that Rivera's medical history included diabetes mellitus, hyperlipidemia, anxiety and vitamin D deficiency. Following examination, Dr. Sleater's assessment included hyperlipidemia, diabetes mellitus, hypertension and Vitamin D deficiency.
March 4, 2014: Boriken Neighborhood Health Center (R. 204-05): Rivera saw Dr. Borker to seek a medication refill. Dr. Borker's assessment included hyperlipidemia, diabetes mellitus, vitamin D deficiency and a body mass index ("BMI") of 31.0 - 31.9.
June 23, 2014: Boriken Neighborhood Health Center (R. 201-03): Rivera again saw Dr. Borker for a medication refill. Dr. Borker's assessment included hyperlipidemia, diabetes mellitus, vitamin D deficiency and a BMI of 31.0 to 31.9.
September 22, 2014: Boriken Neighborhood Health Center (R. 198-200): A progress note from Dr. Borker reflects that Rivera visited the clinic complaining of knee pain. She rated her pain as a level five on the pain scale. Dr. Borker's assessment included hyperlipidemia, diabetes mellitus, vitamin D deficiency, hypertension, insomnia and arthritis.
IV. ALJ Hornblass's Decision
ALJ Hornblass determined that Rivera did not have a disability within the meaning of the Social Security Act (the "Act"). At step one of the sequential evaluation process, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the July 8, 2013 application date. (R. 12.) Next, the ALJ reviewed the record of evidence and found at step two of the sequential evaluation that Rivera had medically determinable impairments of type II diabetes, obesity, hypertension and hyperlipidemia. (R. 12-13.) However, the ALJ determined that none of these impairments or combination of impairments significantly limited Rivera's ability to perform basic work-related activities for twelve consecutive months and therefore, Rivera did not have a severe impairment. (R. 13-14.) The ALJ found that Rivera did not have a disability without proceeding past step two of the sequential evaluation process, and denied her claims for benefits. (R. 15.)
DISCUSSION
I. Applicable Law
A. Definition Of Disability
A person is considered disabled for SSI benefits purposes when she is unable "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), 1382c(a)(3)(A); see, e.g., Barnhart v. Thomas, 540 U.S. 20, 23 (2003); Barnhart v. Walton, 535 U.S. 212, 214 (2002); Impala v. Astrue, 477 Fed. Appx. 856, 857 (2d Cir. 2012).
An individual shall be determined to be under a disability only if [the combined effects of] his physical or mental impairment or impairments are of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy, regardless of whether such work exists in the immediate area in which he lives, or whether a specific job vacancy exists for him, or whether he would be hired if he applied for work.42 U.S.C. §§ 423(d)(2)(A), 1382c(a)(3)(B); see, e.g., Barnhart v. Thomas, 540 U.S. at 23; Barnhart v. Walton, 535 U.S. at 218.
In determining whether an individual is disabled for SSI disability benefit purposes, the Commissioner must consider: "(1) the objective medical facts; (2) diagnoses or medical opinions based on such facts; (3) subjective evidence of pain or disability testified to by the claimant or others; and (4) the claimant's educational background, age, and work experience." Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983) (per curiam).
B. Standard Of Review
A motion for judgment on the pleadings should be granted if it is clear from the pleadings that "the moving party is entitled to judgment as a matter of law." Burns Int'l Sec. Servs., Inc. v. Int'l Union, 47 F.3d 14, 16 (2d Cir. 1995). In reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision of the Commissioner ... with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The ALJ's disability determination may be set aside if it is not supported by substantial evidence. See Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (vacating and remanding ALJ's decision). "Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). If the findings of the Commissioner as to any fact are supported by substantial evidence, those findings are conclusive. Diaz v. Shalala, 59 F.3d 307, 312 (2d Cir. 1995). "[O]nce an ALJ finds facts, we can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec'y Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (internal quotation marks and emphasis omitted); see also, e.g., Florencio v. Apfel, No. 98 CIV. 7248 (DC), 1999 WL 1129067, at *5 (S.D.N.Y. Dec. 9, 1999) ("The Commissioner's decision is to be afforded considerable deference; the reviewing court should not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review." (internal quotation marks & alterations omitted)).
The Court, however, will not defer to the Commissioner's determination if it is "'the product of legal error.'" E.g., Duvergel v. Apfel, No. 99 Civ. 4614 (AJP), 2000 WL 328593, at *7 (S.D.N.Y. Mar. 29, 2000); see also, e.g., Douglass v. Astrue, 496 Fed. Appx. 154, 156 (2d Cir. 2012); Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004), amended in part on other grounds, 416 F.3d 101 (2d Cir. 2005).
Where, as here, the Court is presented with an unopposed motion, it may not find for the moving party without reviewing the record and determining whether there is a sufficient basis for granting the motion. See Wellington v. Astrue, No. 12 Civ. 3523 (KBF), 2013 WL 1944472, at *2 (S.D.N.Y. May 9, 2013) (recognizing, in an action appealing the denial of disability benefits, the court's obligation to review the record before granting an unopposed motion for judgment on the pleadings); Martell v. Astrue, 09 Civ. 1701 (NRB), 2010 WL 4159383, at n.4 (S.D.N.Y. Oct. 20, 2010) (same); cf. Vt. Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 246 (2d Cir. 2004) ("[C]ourts, in considering a motion for summary judgment, must review the motion, even if unopposed, and determine from what it has before it whether the moving party is entitled to summary judgment as a matter of law." (internal quotation marks and citation omitted)).
Pro se litigants "are entitled to a liberal construction of their pleadings," and, therefore, their complaints "should be read to raise the strongest arguments that they suggest." Green v. United States, 260 F.3d 78, 83 (2d Cir. 2001) (internal quotation marks and citation omitted); see also Alvarez v. Barnhart, No. 03 Civ. 8471 (RWS), 2005 WL 78591, at *1 (S.D.N.Y. Jan. 12, 2005) (articulating liberal standard in reviewing denial of disability benefits for pro se plaintiff).
The Commissioner's regulations set forth a five-step sequence to be used in evaluating disability claims. 20 C.F.R. § 416.920; see, e.g., Barnhart v. Thomas, 540 U.S. 20, 24-25 (2003); Bowen v. Yuckert, 482 U.S. 137, 140-142 (1987). The Supreme Court has articulated the five steps as follows:
Acting pursuant to its statutory rulemaking authority, the agency has promulgated regulations establishing a five-step sequential evaluation process to determine disability. If at any step a finding of disability or nondisability can be made, the SSA will not review the claim further. At the first step, the agency will find nondisability unless the claimant shows that he is not working at a "substantial gainful activity." At step two, the SSA will find nondisability unless the claimant shows that he has a "severe impairment," defined as "any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities." At step three, the agency determines whether the impairment which enabled the claimant to survive step two is on the list of impairments presumed severe enough to render one disabled; if so, the claimant qualifies. If the claimant's impairment is not on the list, the inquiry proceeds to step four, at which the SSA assesses whether the claimant can do his previous work; unless he shows that he cannot, he is determined not to be disabled. If the claimant survives the fourth stage, the fifth, and final, step requires the SSA to consider so-called "vocational factors" (the claimant's age, education, and past work experience), and to determine whether the claimant is capable of performing other jobs existing in significant numbers in the national economy.Barnhart v. Thomas, 540 U.S. at 24-25 (internal citations and footnotes omitted).
The claimant bears the burden of proof as to the first four steps. Melville v. Apfel, 198 F.3d 45, 51 (2d Cir. 1999). It is only after the claimant proves that she cannot return to work that the burden shifts to the Commissioner to show, at step five, that other work exists in the national and local economies that the claimant can perform, given her residual functional capacity, age, education and past relevant work experience. Id. At 51.
ALJ Hornblass found in favor of Rivera on step one. At step two, although the ALJ found certain impairments, he found that the impairments were not severe. He thus denied Rivera's claim for benefits without ever reaching steps three, four or five. As set forth below, since the ALJ's severity findings in his step two analysis are not supported by substantial evidence, this Court recommends that this case be remanded to the ALJ for his consideration of steps three, four and five.
II. The ALJ's Findings In His Step Two Analysis Regarding Rivera's Impairments Are Supported By Substantial Evidence.
In the first part of his step two analysis, ALJ Hornblass found that Rivera had the following medically determinable impairments: type II diabetes mellitus, obesity, hypertension and hyperlipidemia. (R. 12.) However, the ALJ found that the hand, knee and back impairments that Rivera alleged were not supported by the medical record. These findings are supported by substantial evidence. Rivera's alleged hand and knee impairments were not demonstrated by medically acceptable diagnostic techniques, nor did they meet the twelve-month durational requirements. Rivera's complaints of hand and finger pain only appear twice in the record, on May 3, 2013 and July 10, 2013. (R. 165, 168.) In neither case were there any examination findings to corroborate her claims. (Id.) Although PA Zheng found tendonitis in Rivera's left hand and thumb, he was not an acceptable medical source. 20 C.F.R. §§ 416.902, 416.913; see Genier v. Astrue, 298 Fed. App'x 105, 108 (2d Cir. 2008) (acceptable medical sources are licensed physicians, psychologists, optometrists, podiatrists and qualified speech-language pathologists). Because PA Zheng was not an acceptable medical source, his diagnosis cannot provide evidence of a medically determinable medical impairment. (R. 12-13.) Notably, Dr. Cha, an acceptable medical source, failed to include any hand, finger, arm or wrist conditions among Rivera's diagnoses. (R. 168-71.)
In any event, there is substantial evidence to support the ALJ's determination that Rivera's hand and thumb condition did not meet the twelve-month durational requirements of the Act. This condition appears only twice in her medical record during a thirty-seven-day period in the summer of 2013. (R. 165, 168.) By Rivera's next medical appointment on August 2, 2013, she no longer complained of finger or hand pain, and rated her pain at a level zero on the pain scale. (R. 189.) Subsequent examinations reflected normal findings. (R. 178, 181, 183, 185, 198, 201, 204, 206.) Treatment notes through September 2014 show that Rivera made no further complaints of pain involving the hands, fingers, wrists or arms. (See R. 178, 181, 183, 185, 198, 201, 204, 206.)
The ALJ's findings regarding Rivera's complaints of knee pain - that her knee pain was unsubstantiated by objective medical findings - are supported by substantial evidence. The medical records reflect that she complained of knee pain only once, i.e., on September 22, 2014, shortly before the ALJ hearing. Moreover, the examination findings on September 22, 2014 do not support her knee complaints. (See R. 99.) No radiographic evidence, such as x-rays, CT Scans or MRIs, supported her claim of knee pain. Thus, Rivera's knee pain was not demonstrated by medically acceptable clinical and laboratory diagnostic techniques as required by the Act. 42 U.S.C. § 423(d)(3); 20 C.F.R. § 416.902. In any event, there is substantial evidence to support the ALJ's determination that Rivera's knee condition had not yet met the twelve-month durational requirement (R. 13.) Rivera first complained of knee pain on September 22, 2014, less than six months before the ALJ's decision. (R. 199.)
None of the medical records before the ALJ reflected any complaints by Rivera about problems with her back. Thus, the ALJ's determination that Rivera's back condition does not constitute a medical impairment also is supported by substantial evidence.
III. The ALJ's Severity Findings In His Step Two Analysis Are Not Supported By Substantial Evidence.
As discussed above, in his step two analysis, ALJ Hornblass determined that Rivera's medically determinable impairments that were supported by medically acceptable clinical and laboratory diagnostic techniques were type II diabetes mellitus, obesity, hypertension and hyperlipidemia. (See R. 12.) However, he concluded that these impairments were not "severe" and accordingly ended his analysis at step two. (See id.) The Court now reviews whether the ALJ's decision that these impairments were not "severe" is supported by substantial evidence.
To be a "severe" impairment under the Commissioner's regulations, a plaintiff's impairment must have more than a slight or minimal effect on her ability to perform basic work activities. 20 C.F.R. § 416.920(c); Social Security Ruling 85-28, 1985 WL 56856 (Jan. 1, 1985) ("an impairment is not severe if it has no more than a minimal effect on an individual's physical or mental ability(ies) to do basic work activities ...."). Although an impairment may not be severe by itself, the ALJ must also consider "the possibility of several such impairments combining to produce a severe impairment...." Id. at *3. A combination of "slight abnormalities," having no more a minimal effect on plaintiff's ability to work, will not be considered severe. Id. The ALJ must assess the impact of the combination of impairments, rather than assessing the contribution of each impairment to the restriction of activity separately, as if each impairment existed alone. Id.
As provided under the Act and by the regulations, a claimant has the burden of providing evidence to demonstrate disability. 20 C.F.R. § 416.912. Importantly, however, the Second Circuit has held that the step two analysis "may do no more than screen out de minimis claims." Dixon v. Shalala, 54 F.3d 1019, 1030 (2d Cir. 1995). "If the disability claim rises above a de minimis level, then the ALJ must undertake the remaining analysis of the claim at Step three through Step five." Rowe v. Commissioner of Social Sec., No. 5:14-CV-67 (TJM/ATB), 2015 WL 1419063, at *7 (N.D.N.Y. Mar. 27, 2015) (citing Dixon, 54 F.3d at 1030); see also Brant v. Barnhart, 506 F. Supp. 2d 476, 482 (D. Kan. 2007) ("The step two requirement is generally considered a de minimis screening device to dispose of groundless claims; thus, reasonable doubts on severity are to be resolved in favor of the claimant."); Keitt v. Barnhart, No. 04-CV-1347 (FB), 2005 WL 1258918, at n.3 (E.D.N.Y. May 27, 2005) ("Since the step-two severity test functions simply to weed out de minimis claims, see Dixon, 54 F.3d at 1030, it is arguable that it is not possible for a limitation to be more than de minimis and yet not be 'severe' for purposes of step two.").
"[T]his lenient interpretation of the severity requirement in part represents the courts' response to the Secretary's questionable practice in the early 1980s of using the step two regulation to deny meritorious claims without proper vocational analysis." Long v. Apfel, 1 Fed. Appx. 326, 331 (6th Cir. 2001) (internal quotation marks and citation omitted).
In the present case, the ALJ determined that none of Rivera's impairments—i.e., diabetes mellitus, obesity, hypertension and hyperlipidemia—separately or in combination resulted in significant functional limitations. (R. 14-15.) Liberally construing the pro se plaintiff's case, this determination is not supported by substantial evidence, when measured against the Second Circuit's de minimis standard. De minimis may be defined as "[t]rifling," "negligible," or "so insignificant that a court may overlook it in deciding an issue or case." Black's Law Dictionary (10th ed. 2014).
The ALJ found that Rivera suffered from four different medically determinable impairments, which impairments (at the very least collectively) appear from the medical record to be more than trifling. The medical records are replete with assessments of the impairments found by the ALJ. During the period July 2013 through September 2014, Rivera visited physicians on ten separate occasions where the physician's assessments included one or more of these impairments. (See R. 170, 178, 180, 185, 188, 190, 199, 202, 205, 207.) Moreover, she was prescribed medication for many of these impairments. (See id.) Rivera's testimony at the ALJ hearing contains evidence of functional limitations. Viewing her hearing testimony in the light most favorable to her, she in substance testified that in her day-to-day living she is generally house-bound, except when she travels to her sister to watch television. (See R. 28-31.) In the circumstances presented, the ALJ should have continued on to steps three through five of the sequential evaluation process before rendering his decision. To be clear, although the result reached by the ALJ ultimately may not change, this Court finds that, under controlling Second Circuit authority, an analysis past step two must be done.
The Court is mindful of the fact that Rivera failed to attend her scheduled consultative examinations, and that such failure may provide a basis for finding that she is not disabled. See 20 C.F.R. § 416.918. Nevertheless, "[t]he case law on the matter ... illustrates that the failure to appear for a scheduled examination is rarely seen as a definitive bar to benefits, and that courts will look to see if the ALJ had substantial evidence for his decisions in the absence of the evaluation." McLean v. Astrue, 650 F. Supp. 223, 230 n.4 (E.D.N.Y. 2009) (citation omitted). Here, even without a consultative examination, the ALJ found that Rivera suffered medically determinable impairments, and also assessed severity. Per the discussion above, the ALJ was bound to move on to consider the remaining steps in the sequential analysis.
CONCLUSION
For the foregoing reasons, the Court recommends that the Commissioner's motion for judgment on the pleadings be DENIED and the case be REMANDED to the Commissioner in order that the five-step sequential analysis can be completed. DATED: December 27, 2017
New York, New York
/s/ _________
STEWART D. AARON
United States Magistrate Judge
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NOTICE OF PROCEDURE FOR FILING OBJECTIONS
TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party's objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections, and any response to objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable George B. Daniels and the undersigned at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
THE FAILURE TO FILE THESE TIMELY OBJECTIONS WILL RESULT IN A WAIVER OF THOSE OBJECTIONS FOR PURPOSES OF APPEAL. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
A copy of this Report and Recommendation has been mailed to:
Norma Iris Rivera 159-48 Harlem River Drive Apt. 10A New York, NY 10039