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Myrna E. Cohen v. Michael J. Astrue

February 25, 2011

MYRNA E. COHEN,
PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF
SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: DuBOIS, J.

MEMORANDUM

I. INTRODUCTION

This is an action seeking review of the Social Security Commissioner's final decision granting the plaintiff, Myrna E. Cohen's, claim for Supplemental Security Income ("SSI"). The Court referred the case to United States Magistrate Judge Arnold C. Rapoport for a Report and Recommendation ("R & R"). Magistrate Judge Rapoport issued an R & R on August 31, 2010, recommending that plaintiff's Request for Review be denied. Plaintiff filed timely Objections to the R & R, which are presently before the Court. The Court approves and adopts the R & R and denies plaintiff's Request for Review. The Court writes only to explain its decision to overrule plaintiff's Objections.

II. BACKGROUND

The background of this case is set forth in detail in the R & R and will be recited in this Memorandum only as necessary to address the issues presented by plaintiff's Objections.

Plaintiff filed for SSI on March 25, 2005, and for Disability Insurance Benefits ("DIB") on April 26, 2005. (R. 46.) Both claims were denied at the initial review level, and plaintiff did not request review of these denials. (R. 46, 56-60, 502.) Plaintiff again filed for SSI and Disability Insurance Benefits ("DIB") on March 28, 2006. (R. 20, 502.) Both claims were denied at the initial review level, and plaintiff did not request review of these denials. (R. 20, 74, 502.) Plaintiff then filed for SSI and DBI a third time on August 7, 2006, with a protective filing date of July 20, 2006. (R. 7, 44.) After denial of these claims at the initial review level, plaintiff requested a hearing before an Administrative Law Judge ("ALJ"), and a hearing was held on January 8, 2008. (R. 42, 44, 51-55, 472-511.) The ALJ issued a decision on February 12, 2008, reopening plaintiff's March 28, 2006 SSI claim and finding plaintiff to be disabled on that claim.

(R. 20-26.) Plaintiff then requested review of the ALJ's decision, arguing to the Appeals Council that the ALJ should have reopened the previously denied DIB claims that she filed on April 26, 2005 and March 28, 2006.*fn1 (R. 14-16.) The Appeals Council denied plaintiff's Request for Review on June 11, 2009, explaining that plaintiff's DIB applications were not before the ALJ, and that her disability claims had been administratively denied in July 2005 due to lack of insured status. (R. 6-9.)

III. STANDARD OF REVIEW

Judicial review of the Commissioner's final decision is limited. This Court is bound by the factual findings of the Commissioner if they are supported by substantial evidence. See Thomas v. Comm'r of Soc. Sec. Admin., 625 F.3d 798, 800 (3d Cir. 2010). "Substantial evidence 'does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Hartranft v. Apfel, 181 F.3d 358, 360 (3d Cir. 1999) (quoting Pierce v. Underwood, 487 U.S. 552, 565 (1988)). "Overall, the substantial evidence standard is deferential and includes deference to inferences drawn from the facts if they, in turn, are supported by substantial evidence. To determine whether a finding is supported by substantial evidence, we must review the record as a whole." Schaudeck v. Comm'r of Soc. Sec. Admin., 181 F.3d 429, 431 (3d Cir. 1999) (citations omitted).

A district court judge makes a de novo determination of those portions of a magistrate judge's report and recommendation to which objection is made. 28 U.S.C. § 636(b)(1). The Court may "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." Id.; see also Brophy v. Halter, 153 F. Supp. 2d 667, 669 (E.D. Pa. 2001).

III. DISCUSSION

Plaintiff argues in the Objections that: (1) Magistrate Judge Rapoport did not have the entire record before him; (2) the ALJ de facto reopened plaintiff's previously-denied DIB claims; and (3) plaintiff's counsel at the hearing before the ALJ had a conflict of interest. The Court addresses each of plaintiff's objections to the R & R in turn.

A. Objection: Magistrate Judge Rapoport Did Not Have the Entire Record BeforeHim

In her Request for Review to the Appeals Council, plaintiff submitted for the first time a letter dated November 6, 2007, from her prior counsel, Jeffrey D. Abramowitz. The letter, addressed to plaintiff, states that "due to [his] medical illness," Abramowitz failed to file an appeal of the denial of plaintiff's application for SSI and DBI benefits, despite being instructed by plaintiff to do so. (See Doc. No. 19-1, filed September 30, 2010.) Plaintiff argues that "the Appeals Council did not review this letter as it was not included in the record submitted to this Honorable Court," and that the case therefore "should be ...


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