Bartko v. Commissioner of Social Security

Filing 15

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' September 5, 2014 13 Report and Recommendations is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Bartko's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/30/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
THOMAS BARTKO,
Plaintiff,

1:13-cv-373
(GLS/ESH)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Office of Peter M. Margolius
7 Howard Street
Catskill, NY 12414
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261

PETER M. MARGOLIUS, ESQ.

ELIZABETH D. ROTHSTEIN
Special Assistant U.S. Attorney

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
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Thomas Bartko 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 September 5, 2014, Magistrate Judge Earl S.
Hines recommended that the Commissioner’s decision be affirmed. (Dkt.
No. 13.) Pending are Bartko’s objections to the R&R. (Dkt. No. 14.) For
the reasons that follow, the court adopts the R&R in its entirety.
II. Background1
On November 22, 2010, Bartko filed an application for DIB under the
Social Security Act. (Tr.2 at 52, 101-07.) After his application was denied,
Bartko requested a hearing before an Administrative Law Judge (ALJ),
which was held on January 31, 2012. (Id. at 31-50, 55-66, 67.) On
February 22, 2012, the ALJ issued a decision denying the requested
benefits, which became the Commissioner’s final determination upon the
Social Security Administration Appeals Council’s denial of review. (Id. at 16, 15-30.)
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The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 10, 11, 13.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

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Bartko commenced the present action by filing a complaint on April 4,
2013, 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 Dkt. No. 13.)
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
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
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magistrate judge for clear error. See id. at *4-5.
IV. Discussion
In the R&R, Magistrate Judge Hines found that any error in failing to
weigh the “ultimate-issue, workers’ compensation opinion of total-disability”
made by treating physician Stewart Kaufman was, at most, harmless. (Dkt.
No. 13 at 11-15.) Judge Hines concluded that Dr. Kaufman’s earlier
statements that Bartko was totally disabled 3 could not fairly be understood
to mean that he was unable to perform any work activity, given Dr.
Kaufman’s March 2008 opinion that Bartko retained the ability to perform
sedentary work, which was rendered after Bartko’s condition had worsened
and after Bartko’s date last insured. 4 (Id.) Instead, according to Judge
Hines, Dr. Kauffman’s earlier opinions must be interpreted to mean that
Bartko could no longer perform his past relevant work, 5 which is consistent
with the ALJ’s step four finding. (Dkt. No. 13 at 13-14; Tr. at 26.) In
objecting to the R&R, Bartko continues to argue that the ALJ failed to

3

Dr. Kaufman opined that Bartko was “totally disabled” from January 23, 2003 through
August 11, 2006. (Tr. at 158, 160, 162-63, 165-74.)
4

Bartko was last insured December 31, 2006. (Tr. at 20.)

5

Bartko worked as a maintenance worker, which required heavy lifting, cutting limbs,
picking up leaves, using a jackhammer, and driving a snowplow. (Tr. at 26.)

4

accord adequate weight to the opinion of Dr. Kaufman. (Dkt. No. 14 at 1.)
In particular, Bartko argues that Dr. Kaufman’s March 2008 opinion
indicates that Bartko cannot perform sedentary work and, thus, does not
support Judge Hines’ conclusion regarding Dr. Kaufman’s “total disability”
opinions. (Id. at 1-2.) As this is a specific objection to the R&R, the court
will review it de novo.
Bartko’s objection relies on a “worker’s compensation” form report
completed by Dr. Kaufman on March 18, 2008. (Id. at 1.) There are three
copies of this form report, dated March 18, 2008 and completed by Dr.
Kaufman, in the record. (Tr. at 198, 223-24, 257.) On all three copies of
the form, Dr. Kaufman indicated that Bartko had a “marked” or seventy-five
percent loss of ability. (Id.) On two copies of the form, Dr. Kaufman
answered “no” to the question “[c]an the patient do any type of work.” ( Id.
at 198, 257.) Nevertheless, on all three forms, Dr. Kaufman answered
“sedentary” to the subsequent question, “if ‘yes’ describe” what work the
patient can do. (Id. at 198, 223-24, 257.) Thus, the court finds no error in
Judge Hines’ conclusion that the opinion of Dr. Kaufman, more than one
year after Bartko’s date last insured and after his condition worsened,

5

supports the ALJ’s residual functional capacity (RFC) determination. 6
Accordingly, the court concurs in Judge Hines’ assessment that, even if the
ALJ erred in failing to weigh Dr. Kaufman’s opinions, remand is not
required here. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987)
(“[W]here application of the correct legal principles to the record could lead
to only one conclusion, there is no need to require agency
reconsideration.”).
Having addressed Bartko’s specific objection de novo, and otherwise
finding no clear error in the R&R, the court accepts and adopts Judge
Hines’ R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ September 5, 2014
Report and Recommendation (Dkt. No. 13) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Bartko’s complaint (Dkt. No. 1) is DISMISSED; and it is further

6

The ALJ found that, through the date last insured, Bartko retained the RFC to perform
he full range of sedentary work. (Tr. at 23.)

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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.
IT IS SO ORDERED.
September 30, 2014
Albany, New York

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