Garber v. Astrue

Filing 20

MEMORANDUM, DECISION & ORDER -- Magistrate Judge Peebles 17 Report and Recommendations is adopted in its entirety. Plaintiffs 11 Motion for Judgment on the Pleadings is denied. Defendant's 15 Motion for judgment on the pleadings is granted. Defendant's decision denying disability benefits is affirmed. Plaintiff's 1 complaint is dismissed. Signed by Judge Glenn T. Suddaby on 3/29/12. (mnm)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
VIRGINIA GARBER,
Plaintiff,
1:10-CV-0845
(GTS/DEP)

v.
MICHAEL J. ASTRUE,
Commissioner of Social Security,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

EMPIRE JUSTICE CENTER
Counsel for Plaintiff
119 Washington Avenue, 2nd Floor
Albany, New York 12210

LOUISE MARIE TARANTINO, ESQ.

SOC. SEC. ADMIN., OFFICE OF
REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

TRACY UDELL, ESQ.
SOMMATTIE RAMRUP, ESQ.

GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this action for supplemental security income benefits filed
by Virginia Garber (“Plaintiff”) against Social Security Commissioner Michael J. Astrue
(“Defendant”) pursuant to 42 U.S.C. § 405(g), are the following: (1) Plaintiff’s motion for
judgment on the pleadings (Dkt. No. 11); (2) Defendant’s motion for judgment on the pleadings
(Dkt. No. 15); (3) the Report-Recommendation of United States Magistrate Judge David E.
Peebles, issued pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 72.3(c) of the
Local Rules of Practice for this Court, recommending that this action be dismissed in its entirety

(Dkt. No. 17); and (4) Plaintiff’s Objections to the Report-Recommendation (Dkt. No. 18). For
the reasons set forth below, Magistrate Judge Peebles’ Report-Recommendations is accepted and
adopted in its entirety.
I.

RELEVANT BACKGROUND
A.

Procedural History

Because the parties have demonstrated in their briefs an adequate understanding of this
action’s procedural history, and neither party has specifically objected to Magistrate Judge
Peebles’ accurate recitation of that procedural history, the Court adopts that recitation, in this
Decision and Order, which is intended primarily for the review of the parties. (See generally
Dkt. No. 17, at 10-14 [Report-Rec].)
The Court would add only two points. First, generally, Plaintiff’s underlying application
for disability insurance benefits was based on her having an alleged disability consisting of
systemic lupus erythematosus (“SLE”), fibromaylagia, status post cervical spinal fusion, status
post cardiac stent due to coronary artery disease (“CAD”), fatigue and pain, which began on
January 21, 1992. Second, generally, in his decision determining that Plaintiff was not disabled
as defined under the Social Security Act, the ALJ found that (1) Plaintiff has in fact engaged in
substantial gainful activity (“SGA”) since the date the application for SSI was filed, and (2)
Plaintiff failed to prove her disability pursuant to the remaining four steps of the five-step
protocol for evaluating claims of disability under the Social Security Act. (See Administrative
Transcript [“Admin. Tr.”] at 12-24.)
B.

Magistrate Judge Peebles’ Report-Recommendation

On March 2, 2012, Magistrate Judge Peebles issued a Report-Recommendation
recommending that Defendant’s decision denying Plaintiff Social Security benefits be affirmed,
and that Plaintiff’s Complaint be dismissed. (Dkt. No. 17, at 42-43.) Generally, in support of his
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recommendation, Magistrate Judge Peebles rendered the following three findings and
conclusions: (1) as an initial matter, the ALJ correctly found that Plaintiff has in fact engaged in
substantial gainful activity since the relevant start date of March 20, 2007, based on her work
experience at Walmart (from March of 2008 to September of 2008), which itself suffices to
support his finding of no disability and terminate Plaintiff’s application;1 (2) in any event, the
ALJ’s residual functioning capacity findings (e.g., that Plaintiff is capable of performing a full
range of light work) during the remaining four steps of the five-step disability protocol are
supported by substantial evidence; and (3) moreover, in evaluating Plaintiff’s subjective
complaints, the ALJ properly considered the substantial medical evidence, and sufficiently
explained why he found that Plaintiff’s testimony was not wholly credible. (Id. at 20-42.)
C.

Plaintiff’s Objections to the Report-Recommendation

On March 16, 2012, Plaintiff filed her Objections to the Report-Recommendation. (Dtk.
No. 18.) Generally, in her Objections, Plaintiff asserts the following three arguments: (1)
Magistrate Judge Peebles’ conclusion that Plaintiff’s work activity from May of 2008 to
September of 2008 precluded her claim for supplemental security income benefits in its entirety
was erroneous, because (a) it was improperly rendered sua sponte, no such conclusion having
been rendered by the ALJ (and no such argument having been made by Defendant), and (b) in
any event, any such conclusion would only preclude a claim for the five months in question, and
warrant a reassignment of Plaintiff’s onset date so that it coincided with the cessation of her
work activity; (2) Magistrate Judge Peebles also erred in concluding that the ALJ’s residual
1

As Magistrate Judge Peebles correctly noted, the record is equivocal as to when
Plaintiff began working at Walmart. (Compare Admin. Tr. at 33 [“I start[ed] [working at the
Walmart Deli in Cobleskill] in March of 2008 . . . .”] and Admin. Tr. at 182 [listing approximate
starting date of employment at Walmart as “3/2008”] with Admin. Tr. at 108 [listing date of
hiring by Walmart as “04/19/2008”].)
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functioning capacity findings were supported by substantial evidence; and (3) Magistrate Judge
Peebles also erred in concluding that the ALJ’s adverse-credibility finding was supported by
substantial evidence. (Id. at 1-16.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Magistrate Judge Peebles’ Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.
72.1(c).2 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the
first instance.3

2

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
3

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (district court did not abuse its
discretion in denying plaintiff's request to present additional testimony where plaintiff “offered
no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v.
Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the
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When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition.4 Similarly, when an objection merely reiterates the same arguments made
by the objecting party in its original papers submitted to the magistrate judge, the Court subjects
that portion of the report-recommendation challenged by those arguments to only a clear error
review.5 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”
review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.6

district court to conduct a second hearing whenever either party objected to the magistrate's
credibility findings would largely frustrate the plain objective of Congress to alleviate the
increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b), Advisory
Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).
4

See also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y.
Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007 (2d Cir.
1999).
5

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
5

After conducing the appropriate review, the Court 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).
B.

Standard Governing Judicial Review of Defendant’s Decision

In Parts III.A. and III.B. of his Report-Recommendation, Magistrate Judge Peebles
correctly recited the legal standard governing judicial review of Defendant's decision, and the
five-step process for evaluating claims of disability under the Social Security Act. (Dkt. No. 17,
at 14-20.) As a result, those standards are incorporated by reference in this Decision and Order,
which (again) is intended primarily for the review of the parties.
III.

ANALYSIS
As an initial matter, the Court finds that the second and third arguments asserted in

Plaintiff’s Objections (i.e., regarding the ALJ’s residual functioning capacity findings and
adverse-credibility finding) were previously asserted in the brief that she submitted to Magistrate
Judge Peebles. (Compare Dkt. No. 11, at 1, 14-25 [Plf.’s Brief] with Dkt. No. 18, at 1, 4-16
[Plf.’s Obj.].) As explained in Part II.A. of this Decision and Order, when an objection merely
reiterates the same arguments made by the objecting party in its original papers submitted to the
magistrate judge, the Court subjects that portion of the report-recommendation challenged by
those arguments to only a clear error review. Here, after carefully reviewing all of the papers in
this action, the Court concludes that those portions of Magistrate Judge Peebles’ thorough
Report-Recommendation are correct in all respects. (Dkt. No. 17, at 23-43.) Magistrate Judge
Peebles employed the proper standards, accurately recited the facts, and reasonably applied the
law to those facts. (Id.) As a result, the Court accepts and adopts those portions of the
Report-Recommendation in their entirety for the reasons stated therein. The Court would add

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only that those portions of the Report-Recommendation would survive even a de novo review.
Turning to Plaintiff’s first argument (i.e., regarding whether Plaintiff’s substantial gainful
activity precludes her claim for supplemental security income benefits in its entirety), the Court
finds that this Objection is sufficiently specific in nature. (Dkt. No. 18, at 1-4.) As a result, the
Court reviews this portion of the Report-Recommendation challenged by the argument de novo.
Again, after carefully reviewing all of the papers in this action, the Court concludes that this
portion of Magistrate Judge Peebles’ thorough Report-Recommendation is correct in all respects.
(Dkt. No. 17, at 20-23.) Magistrate Judge Peebles employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court
accepts and adopts this portion of the Report-Recommendation in its entirety for the reasons
stated therein.
The Court would add only three points. First, the Court respectfully disagrees with
Plaintiff’s assertion that the ALJ never found, as a threshold matter, that Plaintiff was precluded
from pursuing her claim for supplemental security income benefits due to her failure to satisfy
the first step of the five-step disability protocol. (Dkt. No. 18, at 2, n.1.) The ALJ did render
such a finding, conducting an analysis of the remaining four steps only as an alternative ground
for denying Plaintiff’s claim. (Compare Admin. Tr. at 14 [stating that “If the individual engages
in SGA, she is not disabled . . .”] with Admin. Tr. at 15 [stating that “The claim has engaged in
substantial gainful activity since March 20, 2007 . . .”].) Similarly, the Court respectfully
disagrees with Plaintiff’s assertion that Defendant never sufficiently made this argument in the
brief he submitted to Magistrate Judge Peebles. (Dkt. No. 18, at 2, n.1.) Defendant did
sufficiently make this argument when he argued as follows:

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[T]he ALJ found at step one of the sequential evaluation that Plaintiff
had engaged in substantial gainful activity since March 20, 2007 . . . .
The ALJ, affording Plaintiff an additional opportunity to prove her
disability, then proceeded to step two of the evaluation. . . . [G]iven
the record of earnings and lack of evidence, the ALJ properly
characterized Plaintiff's work from May 2008 to September 2008 as
substantial gainful activity.
(Dkt. No. 15, at 4, 6 [emphasis added].)
Second, the Court respectfully disagrees with Plaintiff’s argument that any such finding
(i.e., that Plaintiff was able to engage in substantial gainful activity for a five-month period
ending in September of 2008) compels (1) a conclusion that Plaintiff is precluded from pursuing
a disability claim for only the five months in question, and (2) a reassignment of Plaintiff’s onset
date so that it coincided with the cessation of her work activity. (Dkt. No. 18, at 2-4.) In making
this argument, Plaintiff relies heavily on 20 C.F.R. § 416.330(a), which provides as follows: “If
you meet all the requirements for eligibility while your application is in effect, the earliest month
for which we can pay you benefits is the month following the month that you first meet all the
requirements.” Setting aside the lack of an indication in this regulation that the ALJ was
compelled to reassign Plaintiff’s onset date, the fact remains that the ALJ did not find that
Plaintiff first meet all the requirements for eligibility in September of 2008. Rather, the ALJ
found (and the Court agrees) that Plaintiff’s employment ceased (for a period of three months) in
September of 2008 due to a work-related accident and not due to her impairment of systemic
lupus erythematosus, which he found to be in remission at the time. (Admin. Tr. at 14-15, 33-34,
574.) The Court notes that, in the underlying proceedings, Plaintiff does not appear to have
applied to amend her onset date to September of 2008. (See generally Admin. Tr.)

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Third, even if Plaintiff is correct with regard to this argument, her Complaint should be,
and is, dismissed for the alternative reason that she has failed to prove her disability pursuant to
the remaining four steps of the five-step disability protocol.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Peebles’ Report-Recommendation (Dkt. No. 17) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s motion for judgment on the pleadings (Dkt. No. 11) is
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is
GRANTED; and it is further
ORDERED that Defendant’s decision denying disability benefits is AFFIRMED; and it
is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: March 29, 2012
Syracuse, New York

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