Crofoot v. Commissioner of Social Security

Filing 18

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' May 8, 2013 15 Report and Recommendation is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Crofoot's Complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/30/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
STEVEN CROFOOT,
Plaintiff,

1:12-cv-521
(GLS/ESH)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
5th Floor, Suite 520
Syracuse, NY 13202
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
STEVEN P. CONTE
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

KAREN S. SOUTHWICK, ESQ.

DAVID L. BROWN
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Steven Crofoot challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report and
Recommendation (R&R) filed May 8, 2013, Magistrate Judge Earl S. Hines
recommended that the Commissioner’s decision be affirmed.1 (R&R, Dkt.
No. 15.) Pending are Crofoot’s objections to the R&R. (Dkt. No. 16.) For
the reasons that follow, the court adopts the R&R in its entirety.
II. Background2
On April 16, 2009, Crofoot filed an application for DIB under the
Social Security Act alleging disability since September 1, 2008. (R&R at 2;
Dkt No. 11 at 1.) After his application was denied, Crofoot requested a
hearing before an Administrative Law Judge (ALJ), which was held on
December 9, 2010 and April 19, 2011. (Tr. at 26-86, 93-106.) On May 9,
2011, the ALJ issued a decision denying the requested benefits, which
1

The Clerk is directed to append the R&R to this decision, and
familiarity therewith is presumed. (Dkt. No. 15.)
2

The court incorporates the factual recitations of the parties and
Judge Hines. (Dkt. Nos. 11, 13, 15; see also Admin. Tr., Dkt. No. 9.)
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became the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (Tr. at 2-8, 11-25.)
Crofoot commenced the present action by filing his complaint on
March 21, 2012 seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Hines
issued an R&R recommending that the Commissioner’s decision be
affirmed. (See generally R&R.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
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the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
Crofoot raises two specific objections to the R&R, which the court will
review de novo. The remainder of the R&R will be reviewed for clear error.
A.

Weighing Medical Evidence
Crofoot objects to Judge Hines’ conclusion that the residual

functional capacity (RFC) determination was supported by substantial
evidence,3 because the ALJ did not weigh the medical evidence properly.
(Dkt. No. 16 at 1-2.) According to Crofoot, Judge Hines erred in relying on
the opinion of disability analyst C. Rosney, who opined that Crofoot could
perform light work, as support for the ALJ’s RFC determination. (Id.)
It appears that Judge Hines credited Rosney’s opinion as that of a
non-examining medical consultant. (R&R at 13.) However, the record
does not indicate that Rosney had any medical credentials and the

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“Substantial evidence is defined as more than a mere scintilla. It
means such relevant evidence as a reasonable mind might accept to
support a conclusion.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir.
1990) (internal quotation marks and citations omitted).
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Commissioner does not argue that Rosney is an acceptable medical
source. (Tr. at 712-17; Dkt. No. 17 at 2.) “It is indeed an error to treat “a
disability analyst as a doctor.” Tankisi v. Comm’r of Soc. Sec., No.
12-1398-cv, 2013 WL 1296489, at *5 -6 (2d Cir. Apr. 2, 2013) (internal
quotations and citation omitted). This factual error, however, is of little
consequence, as the medical assertions in Rosney’s report were
supported by the remainder of the record. See id. Specifically, as
explained in Judge Hines’ report, treating physician Thomas Booker, who
treated Crofoot for neck and left arm pain, noted that such pain did not
interfere with Crofoot’s activities of daily living. (Tr. at 723-25; R&R at 14.)
Additionally, treating physician Daniel Tomlinson observed that an x-ray of
Crofoot’s shoulder showed no abnormality and an MRI showed no tears.
(Id. at 824.) Tomlinson treated Crofoot with injections in his shoulder, and,
in August 2009, Crofoot reported being “very happy” with his pain relief.
(Id. at 839; see id. at 824, 835-36.) Further, consultative examiner Suraj
Malhotra found no objective evidence of limitation from an orthopedic
perspective. (Tr. at 686-91.) As noted by the Commissioner, the ALJ did
not mention Rosney’s report in his decision and, instead, relied on the
opinion of Dr. Malhotra as well as the records of Crofoot’s treating sources
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to determine that Crofoot could perform a reduced range of light work.
(Dkt. No. 17 at 2; Tr. at 17-20.)
Finally, although Crofoot argues that no medical assessment is
consistent with the ALJ’s RFC determination, (Dkt. No. 16 at 2), the ALJ is
not required “to adopt a physician’s RFC determination outright.” Soto v.
Astrue, No. 08-CV-6352T, 2009 WL 1765200, at *6 (W.D.N.Y. June 22,
2009); see Reyes v. Astrue, No. 3:09-CV-0285, 2010 WL 786253, at *7
(N.D.N.Y. Feb. 26, 2010). Based on the foregoing evidence, including the
opinion of Dr. Malhotra, the court concludes that the ALJ’s decision on this
point was supported by substantial evidence. Accordingly, the court
adopts the portion of the R&R regarding the weight of the medical
evidence.
B.

Step Four Determination
Crofoot also objects to Judge’s Hines recommendation that the ALJ’s

step four determination be affirmed. (Dkt. No. 165 at 2-3.) Specifically,
Crofoot argues that Judge Hines erred in finding that citation of the
Dictionary of Occupational Titles (DOT) satisfied “the ALJ’s duty to make

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specific findings as to [Crofoot’s] past relevant work. (Id.)4
“[I]n the fourth stage of the [disability ] inquiry, the claimant has the
burden to show an inability to return to h[is] previous specific job and an
inability to perform h[is] past relevant work generally.” Jasinski v. Barnhart,
341 F.3d 182, 185 (2d Cir. 2003). In other words, a claimant is not
disabled if he can perform his past relevant work, either as he actually
performed it, or as it is generally performed in the national economy. See
SSR 82-61, 1982 WL 31387, at *2 (1982); Jock v. Harris, 651 F.2d 133,
135 (2d Cir. 1981). Thus, as Judge Hines articulated in his report, the ALJ
appropriately compared Crofoot’s RFC with the job description contained in
the DOT for his past relevant work, namely, work as a real estate agent.
(R&R at 22-23); see Dictionary of Occupational Titles, Code 250.357-018,
1991 WL 672361 (4th ed., 1991); SSR 00-4p, 65 Fed. Reg. 75,759, 75,760
(Dec. 4, 2000) (explaining that, at steps four and five of the sequential

4

Crofoot also purports to object to the R&R on the grounds that
“due to the ALJ’s errors in determining [Crofoot’s] RFC and credibility, the
Step [four] determination was unsupported by substantial evidence.” (Dkt.
No. 16 at 2.) The substance of this argument, however, was previously
raised in Crofoot’s brief and considered and rejected by Judge Hines.
(Dkt. No. 11 at 12-19; R&R at 9-21.) This “objection,” therefore, is general
and does not warrant de novo review. See Almonte, 2006 WL 149049 at
*4.
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evaluation process, the Commissioner relies primarily on the DOT for
information about the requirements of work in the national economy).
Accordingly, the court rejects Crofoot’s argument that Judge Hines’
analysis in this regard was improper.
V. Conclusion
Having addressed Crofoot’s specific objections de novo, and
otherwise finding no clear error in the R&R, the court accepts and adopts
Judge Hines’ R&R in its entirety.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ May 8, 2013 Report
and Recommendation (Dkt. No. 15) is ADOPTED in its entirety; and it is
further
ORDERED that the decision of the Commissioner is AFFIRMED and
Crofoot’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.

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IT IS SO ORDERED.
September 30, 2013
Albany, New York

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