Commercial Litigation and Arbitration

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Ferone v. Colvin, 2015 U.S. Dist. LEXIS 181826 (S.D.N.Y. June 17, 2016) (R&R):

I. Introduction


Plaintiff, Nanette L. Ferone, brings this action pursuant to Section 205(g) of the Social Security Act (the "Act"), 42 U.S.C. § 405(g), seeking judicial review of a final decision of the Commissioner of Social Security ("Commissioner") denying her applications for supplemental security income benefits ("SSI") and disability insurance benefits ("DIB"). Plaintiff has moved for judgment on the pleadings under Rule 12(c) of the Federal Rules of Civil Procedure (Notice of Motion, dated December [*2]  19, 2014 (Docket Item 15)). The Commissioner has filed a cross-motion also seeking judgment on the pleadings (Notice of Motion, dated January 20, 2015 (Docket Item 17)).


For the reasons set forth below, I respectfully recommend that plaintiff's motion for judgment on the pleadings be denied and that the Commissioner's motion for judgment on the pleadings be granted.

II. Facts

A. Procedural Background

Plaintiff filed applications for SSI and DIB on June 30, 2011, alleging that she had been disabled since June 3, 2010 (Tr.1 151-68). The Social Security Administration denied plaintiff's applications, finding that she was not disabled (Tr. 59-60). Plaintiff timely requested and was granted a hearing before an Administrative Law Judge ("ALJ"). ALJ Patrick Kilgannon conducted a hearing on February 27, 2013 (Tr. 38-58). In a decision dated April 26, 2013, ALJ Kilgannon determined that plaintiff was not disabled within the meaning of the Act (Tr. 7-28). The ALJ's decision became the final decision of the Commissioner on May 27, 2014 when the Appeals Council denied plaintiff's request for review (Tr. 1-6). Plaintiff commenced this action seeking review of the Commissioner's decision on July 10, [*3]  2014 (Complaint (Docket Item 1)).

1   "Tr." refers to the administrative record that the Commissioner filed with her answer, pursuant to 42 U.S.C. § 405(g) (see Notice of Filing of Administrative Record, dated July 31, 2014 (Docket Item 9)).

B. Plaintiff's Social Background

Plaintiff was born in September 1960 (Tr. 184). She holds a high school diploma and speaks English (Tr. 188, 190). Plaintiff worked as a food vendor in 2002, a school assistant from 2003 to 2004, and a safety monitor at a family shelter from 2008 to 2010 (Tr. 190). She also briefly worked in a factory assembling products (Tr. 48). Plaintiff lived with her teenage daughter in a shelter in the Bronx, eventually obtaining her own housing by at least late 2012 (see Tr. 198, 272, 294, 559). Plaintiff claims disability based on psychiatric conditions that she contends stem from sexual harassment she experienced in the workplace in 2010 (Tr. 42).

In a March 2011 FEGS2 Biopsychosocial Summary, plaintiff reported that she was not interested in working and that she could not work because of her mental health conditions (Tr. 297). She stated that she had suffered abuse in the workplace in 2008 (Tr. 298). Plaintiff denied ever being hospitalized for [*4]  mental conditions and denied experiencing auditory hallucinations (Tr. 300). She also denied current suicidal ideation, but reported that she had experienced suicidal ideation in 2008 (Tr. 300). This report stated that plaintiff took the bus to her appointment and had no travel restrictions (Tr. 301). Plaintiff also reported that she participated in library services (Tr. 295)

2   Federal Employment and Guidance Service ("FEGS") WeCare is a New York City program that "help[s] [public] assistance applicants and recipients with complex clinical barriers to employment, including medical, mental health, and substance abuse conditions, to obtain employment or federal disability benefits." FEGS: WeCare, FEGS Health & Human Servs., what-we-do/employment-workforce/jobseekers/wecare#.VYG22UbYhdB (accessed via the Internet Archive index).

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