Wright v. Saul
Filing
22
DECISION AND ORDER that Magistrate Judge Dancks' Report and Recommendation (Dkt. No. 18 ) is ACCEPTED and ADOPTED in its entirety. Plaintiff's motions for judgment on the pleadings (Dkt. Nos. 9 , 16 ) are DENIED. Defendant's motion for judgment on the pleadings (Dkt. No. 17 ) is GRANTED. The Commissioner's determination is AFFIRMED. Plaintiff's Complaint (Dkt. No. 1 ) is DISMISSED. Signed by U.S. District Judge Glenn T. Suddaby on 1/17/2023. (sal)
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 1 of 6
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
LYNNE M. W.,
Plaintiff,
1:21-CV-639
(GTS/TWD)
v.
KILOLO KIJAKAZI, Acting Commissioner
of Social Security,
Defendant.
_____________________________________
APPEARANCES:
OF COUNSEL:
MELTZER, FISHMAN, MADIGAN
& CAMPBELL
Counsel for Plaintiff
225 Broadway, Suite 2605
New York, New York 10007
EDWARD J. MADIGAN, ESQ.
SOCIAL SECURITY ADMINISTRATION
Counsel for Defendant
6401 Security Boulevard
Baltimore, Maryland 21235
NICOLE BOUDREAU, ESQ.
JUNE L. BYUN, ESQ.
Special Assistant U.S. Attorneys
GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Lynne M. W.
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. § 405(g), are (1) the Report and Recommendation of United States
Magistrate Judge Thérèse Wiley Dancks recommending that Plaintiff’s motions for judgment on
the pleadings be denied, and that Defendant’s motion for judgment on the pleadings be granted,
(2) Plaintiff’s Objections to the Report and Recommendation, and (3) Defendant’s response to
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 2 of 6
Plaintiff’s Objections. (Dkt. Nos. 18, 19, 20.) For the reasons set forth below, the Report and
Recommendation is accepted and adopted in its entirety.
I.
RELEVANT BACKGROUND
A.
Magistrate Judge Dancks’ Report-Recommendation
Because this Decision and Order is intended primarily for the review of the parties, the
Court will not repeat the findings of fact and conclusions of law asserted in Part III of Magistrate
Judge Dancks’ Report-Recommendation, but will respectfully refer the reader to that part of the
Report-Recommendation. (Dkt. No. 18, at 4-21.)
Generally, in her Objections, Plaintiff asserts three challenges to Magistrate Judge
Dancks’ Report and Recommendation: (1) that the Administrative Law Judge incorrectly
determined Plaintiff's impairments did not meet or equal Listings 11.08 (spinal cord disorder),
1.15 (nerve root disorder), and 1.16 (lumbar spinal stenosis); (2) that the Administrative Law
Judge failed to explain why he rejected the Vocational Expert’s initial determination that
Plaintiff was disabled and not able to perform her past relevant work; and (3) that the
Administrative Law Judge failed to call a medical expert to assist in evaluating whether Plaintiff
met or equaled any of the Listings. (Dkt. No. 19.)
Generally, in her response to Plaintiff’s Objections, Defendant asserts two arguments: (1)
that, because Plaintiff has failed to identify any legal error but has instead merely reasserted her
prior arguments, she has effectively waived her right to argument; and (2) that, because
substantial evidence supports the Administrative Law Judge’s findings, Defendant’s decision
should be affirmed. (Dkt. No. 20.)
II.
APPLICABLE LEGAL STANDARD
2
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 3 of 6
When a specific objection is made to a portion of a magistrate judge's report
recommendation, 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).1
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.2 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
1
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.”).
2
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) (finding that 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 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.”).
3
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 4 of 6
judge's report and recommendation that could have been raised before the magistrate but were
not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp.2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
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; 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). 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.3 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
3
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.).
4
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 5 of 6
order to accept the recommendation.” Id.4
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).
III.
ANALYSIS
After carefully reviewing the relevant filings in this action, including Magistrate Judge
Dancks’ thorough Report-Recommendation and Plaintiff’s Objections, the Court can find no
error in the Report and Recommendation, clear or otherwise: Magistrate Judge Dancks employed
the proper standards, accurately recited the facts, and reasonably applied the law to those facts.
The Court renders this finding for the reasons stated in the Report-Recommendation and
Defendant’s response to Plaintiff’s Objections. (See generally Dkt. No. 18, Part III; Dkt. No. 20,
at 2.) To those reasons, the Court adds only one point.
Plaintiff’s Objections merely repeat arguments presented in the memorandum of law she
submitted to Magistrate Judge Dancks. (Compare Dkt. No. 19, at 7-16 with Dkt. No. 16, at 716.) As a result, the Court finds that the “challenged” portions of the Report-Recommendation
warrant only a clear-error review. See, supra, Part II of this Decision and Order. The Court finds
they survive that review. In any event, even if the Court were to find that Plaintiff's challenges
did not merely reiterate arguments previously submitted to Magistrate Judge Dancks, the Court
would find that they survive a de novo review.
ACCORDINGLY, it is
4
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
Case 1:21-cv-00639-GTS-TWD Document 22 Filed 01/17/23 Page 6 of 6
ORDERED that Magistrate Judge Dancks’ Report and Recommendation (Dkt. No. 18) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s motions for judgment on the pleadings (Dkt. Nos. 9, 16) are
DENIED; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 17) is
GRANTED; and it is further
ORDERED that the Commissioner’s determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: January 17, 2023
Syracuse, New York
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