Ricciardi v. Colvin

Filing 38

MEMORANDUM OF DECISION & ORDER: The Court will not relitigate the exact same issues decided by the Magistrate Judge in the R&R. The Plaintiff does not point to any legal error; he merely disagrees with the conclusions of the R&R and reargues his init ial points in support of his objections. Therefore, the Court reviews the R&R for clear error. See IndyMac Bank, 2008 WL 4810043, at *1("To the extent...that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the [R&R] strictly for clear error.") Finding no clear error, the Court adopts the R&R in its entirety. The Clerk of the Court is respectfully directed to close the case. So Ordered by Judge Arthur D. Spatt on 9/12/2017. (Ortiz, Grisel)

FILED 
CLERK 

9/12/2017 1:59 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------X
MICHAEL T RICCIARDI,
Plaintiff,

MEMORANDUM OF
DECISION & ORDER
15-cv-2715 (ADS)(AYS)

-againstCAROLYN COLVIN, Commissioner of Social
Security,
Defendant.
---------------------------------------------------------X
APPEARANCES:

Seelig Law Office, LLC
Attorneys for the Plaintiff
299 Broadway
Suite 1600
New York, NY 10007
By:
Philip Howard Seelig, Esq., Of Counsel
United States Attorney’s Office for the Eastern District of New York
Attorneys for the Defendant
271 Cadman Plaza East
Brooklyn, NY 11201
By:
Joseph Anthony Marutollo, Assistant United States Attorney
SPATT, District Judge:
On May 12, 2015, the Plaintiff Michael T. Ricciardi (the “Plaintiff”) commenced this civil
action pursuant to the Social Security Act, 42 U.S.C. § 405 et seq. (the “Act”), challenging a final
determination by the Defendant Carolyn W. Colvin (the “Defendant” or the “Commissioner”),
who was the acting commissioner at the time of filing, that he is ineligible to receive Social
Security disability insurance benefits.
On October 6, 2016 the Court referred the parties’ cross motions for judgment on the
pleadings pursuant to Federal Rule of Civil Procedure (“FED. R. CIV. P.” or “Rule”) 12(c) to

1

Magistrate Judge Anne Y. Shields for a Report and Recommendation (“R&R”). On February 28,
2017, Judge Shields issued an R&R, recommending that the Court grant the Defendant’s motion
for judgment on the pleadings dismissing the Plaintiff’s complaint, and deny the Plaintiff’s motion
for judgment in her favor.
Presently before the Court are the Plaintiff’s objections to the R&R. The Court reviews
the R&R for clear error because the Plaintiff merely repeats his initial arguments. Finding none,
the Court adopts the R&R in its entirety.
I. BACKGROUND
A. The R&R
The R&R found that the Plaintiff’s vertigo did not qualify as a severe impairment; that the
ALJ did not err in affording little weight to the opinions of the Plaintiff’s treating physician; and
that the ALJ properly considered the Plaintiff’s subjective complaints.
B. The Plaintiff’s Objections
The Plaintiff’s objections to the R&R are the same grounds on which he appealed the ALJ’s
decision. Namely, he contends that the R&R disregarded the applicable legal standard for
determining whether the Plaintiff’s vertigo was a severe impairment; that the R&R’s application
of the treating physician’s rule was flawed; and that the R&R did not properly consider the ALJ’s
credibility assessments of the Plaintiff’s complaints of pain and statements of physical limitations.
II. DISCUSSION
A. District Court Review of a Magistrate Judge’s R&R
A district court reviewing a magistrate judge’s report and recommendation “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). Parties may raise objections to the magistrate judge’s report

2

and recommendation, but they must be “specific,” “written,” and submitted “[w]ithin 14 days after
being served with a copy of the recommended disposition.” FED. R. CIV. P. 72(b)(2); accord 28
U.S.C. § 636(b)(1)(C). A district court must conduct a de novo review of those portions of the
R&R or specified proposed findings or recommendations to which timely and proper objections
are made. 28 U.S.C. § 636(b)(1)(C); see FED. R. CIV. P. 72(b)(3) (“The district judge may accept,
reject, or modify the recommended disposition; receive further evidence; or return the matter to
the magistrate judge with instructions.”). The district court may adopt those portions of a report
and recommendation to which no timely objections have been made, provided no clear error is
apparent from the face of the record. Lewis v. Zon, 573 F. Supp. 2d 804, 811 (S.D.N.Y. 2008);
Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985).
In addition, “[t]o the extent . . . that the party makes only conclusory or general arguments,
or simply reiterates the original arguments, the Court will review the [R&R] strictly for clear
error.” IndyMac Bank, F.S.B. v. Nat’l Settlement Agency, Inc., No. 07–CV–6865, 2008 WL
4810043, at *1 (S.D.N.Y. Oct. 31, 2008); see also Toth v. N.Y. City Dep’t of Educ., No.
14CV3776SLTJO, 2017 WL 78483, at *7 (E.D.N.Y. Jan. 9, 2017) (“Reviewing courts should
review a report and recommendation for clear error where objections are merely perfunctory
responses, argued in an attempt to engage the district court in a rehashing of the same arguments
set forth in the original petition.” (quoting Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y.
2008))). “The goal of the federal statute providing for the assignment of cases to magistrates is to
increase the overall efficiency of the federal judiciary.” McCarthy v. Manson, 554 F. Supp. 1275,
1286 (D. Conn. 1982), aff'd, 714 F.2d 234 (2d Cir. 1983) (quoting Nettles v. Wainwright, 677 F.2d
404, 410 (Former 5th Cir. 1982) (en banc)) (footnote omitted). “There is no increase in efficiency,
and much extra work, when a party attempts to relitigate every argument which it presented to the

3

Magistrate Judge.” Toth, 2017 WL 78483, at *7 (quoting Camardo v. Gen. Motors Hourly-Rate
Employees Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992)).
B. Application to the Facts
As stated above, the Plaintiff’s objections are identical to those in his initial motion for
judgment on the pleadings pursuant to Rule 12(c). The Plaintiff merely seeks to “rehash[] [] the
same arguments set forth in the original petition.” Toth, 2017 WL 78483, at *7 (quoting Ortiz,
558 F. Supp. 2d at 451.
The Plaintiff’s objections to the R&R’s analysis are thinly veiled reiterations of his grounds
for appeal. Indeed, the Plaintiff copied and pasted many of his arguments, and most of the
substance of those arguments. (Compare Pl.’s Mem. of Law in Support at 17 (“The ALJ’s analysis
failed to consider that Dr. Shohet was having difficulty diagnosing the root cause of the
vertigo . . . . The ALJ failed to even mention this diagnosis in his opinion, and failed to include the
limitations that the cervical vertigo would cause the claimant in his ability to work.”); id. at 22–
23 (“The ALJ failed to rebut the treating physician[’]s rule because: (1) [h]e relied on doctors who
were not examining the Plaintiff for orthopedic issues; (2) [h]e relied on a consultative examiner
who was not a specialist in the field of the alleged disability, and who examined the Plaintiff years
prior to the most recent hearing, without a review of the claimant’s entire medical record; and (3)
[h]e cherry-picked portions of the record that supported his conclusion, and ignored much of the
evidence that supported the opinion of Dr. Goldstein.”); id. at 24 (“Contrary to the ALJ’s opinion,
the Plaintiff’s statements about his subjective complaints are not inconsistent.”); with Pl.’s
Objections to the R&R at 3–4 (“Both the Magistrate Judge and the ALJ’s analysis failed to consider
that Dr. Shohet was having difficulty diagnosing the root cause of the vertigo . . . . Both the
Magistrate Judge and ALJ failed to even mention this diagnosis in his opinion, and failed to include

4

the limitations that the cervical vertigo would cause the Plaintiff in his ability to work.”); id. at 9
(“There was no explanation as to how it was appropriate to: (1) rely on doctors who were not
examining the Plaintiff for his orthopedic issues; (2) rely on a consultative examiner who was not
a specialist in the field of the alleged disability, and who examined the Plaintiff years prior to the
most recent hearing, without a review of the Plaintiffs entire medical record; and (3) cherry-pick
portions of the record that supported his conclusion, and ignored much of the evidence that
supported the opinion of Dr. Goldstein.”); id. at 11 (“Contrary to the ALJ's opinion, the Plaintiffs
statements about his subjective complaints are not inconsistent.”)).
The Plaintiff’s objections to the R&R’s analysis of the treating physician rule and the
Plaintiff’s credibility do not even feign to take issue with the analyses, the objections outright state
that the Plaintiff merely disagrees with the results of those analyses. (See, e.g., Pl.’s Objections to
the R&R at 5 (“The R&R concluded that ALJ Weiss appropriately considered the entirety of the
medical record and that Dr. Goldstein's assessments were not credible because there were not
consistent with the medical records. This conclusion is flawed because the ALJ’s analysis of the
Medical Records ignored the overwhelming majority of the medical evidence.”)).
The R&R utilized the correct legal standards for determining whether the Plaintiff’s vertigo
is a severe impairment; whether the ALJ was justified in affording less weight to the Plaintiff’s
treating physician; and whether the ALJ correctly assessed the Plaintiff’s credibility.
Accordingly, the Court finds that the Plaintiff’s objections are improper and reviews the
R&R for clear error.
III. CONCLUSION
The Court will not relitigate the exact same issues decided by the Magistrate Judge in the
R&R. The Plaintiff does not point to any legal error; he merely disagrees with the conclusions of

5

the R&R and reargues his initial points in support of his objections. Therefore, the Court reviews
the R&R for clear error. See IndyMac Bank, 2008 WL 4810043, at *1 (“To the extent . . . that the
party makes only conclusory or general arguments, or simply reiterates the original arguments, the
Court will review the [R&R] strictly for clear error.”) Finding no clear error, the Court adopts the
R&R in its entirety. The Clerk of the Court is respectfully directed to close the case.

It is SO ORDERED:
Dated: Central Islip, New York
September 12, 2017
__/s/ Arthur D. Spatt__
ARTHUR D. SPATT
United States District Judge

6