Taylor v. Astrue

Filing 19

MEMORANUDM-DECISION & ORDER accepting and adopting Magistrate Judge Bianchini's # 17 Report and Recommendations in its entirety. It is ORDERED that Defendant's motion for judgment on the pleadings is granted, and Plaintiff's motion for judgment on the pleadings is denied. It is ORDERED that Defendant's decision denying plaintiff disability benefits is AFFIRMED and plaintiff's complaint is dismissed. Signed by Judge Glenn T. Suddaby on 9/26/12. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
KEITH TAYLOR,
Plaintiff,
3:11-CV-0411
(GTS/VEB)

v.
MICHAEL J. ASTRUE, Comm’r of Soc. Sec.,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

LACHMAN & GORTON
Counsel for Plaintiff
P.O. Box 89
1500 East Main Street
Endicott, New York 13761-0089

PETER A. GORTON, ESQ.

SOCIAL SECURITY ADMINISTRATION
ANDREEA L. LECHLEITNER, ESQ.
OFFICE OF REG. GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza – Room 3904
New York, New York 10278
GLENN T. SUDDABY, United States District Judge
MEMORANDUM-DECISION and ORDER
Currently before the Court, in this action filed by Keith Taylor (“Plaintiff”) against Social
Security Commissioner Michael J. Astrue (“Defendant”) pursuant to 42 U.S.C. § 405(g) seeking
Social Security benefits, are the following: (1) Plaintiff’s motion for judgment on the pleadings
(Dkt. No. 13); (2) Defendant’s motion for judgment on the pleadings (Dkt. No. 15); (3) the
Report-Recommendation of United States Magistrate Judge Victor E. Bianchini, 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 Defendant’s motion be granted, Plaintiff’s motion be denied, and

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

RELEVANT BACKGROUND
A.

Procedural History

In Part II of his Report-Recommendation, Magistrate Judge Bianchini correctly describes
the procedural background of the action. (Dkt. No. 17, at Part II) Furthermore, Plaintiff has not
specifically objected to that description. (Dkt. No. 18.) As a result, this description is
incorporated by reference in this Decision and Order, which is intended primarily for the review
of the parties. The Court adds only the following brief summary of that description.
On March 12, 2007, Plaintiff applied for Social Security Insurance (“SSI”) and Disability
Insurance Benefits (“DIB”) under the Social Security Act alleging a disability onset date of May
17, 2005. (See Administrative Transcript [“T.”] at 85-94.) Plaintiff’s application was initially
denied by the Social Security Administration. Thereafter, Plaintiff appealed the decision and on
July 10, 2009, a hearing was held before an Administrative Law Judge (“ALJ”) of the Social
Security Administration. (T. at 28.) On December 18, 2009, the ALJ issued his decision denying
Plaintiff’s application for benefits. (T. at 6-27.) On March 4, 2011, the Appeals Council denied
Plaintiff’s request for review, making the ALJ's decision the final decision of Defendant. (T. at
1-3.) On April 14, 2011, Plaintiff commenced this action in federal court. (Dkt. No. 1.)
B.

Parties’ Motion Arguments

Generally, in his motion for judgment on the pleadings, Plaintiff asserts the following
five arguments: (1) the ALJ erred by finding Plaintiff’s lumber degenerative disc disease,
bilateral degenerative knee joint condition, asthma, peripheral vascular disease, and diabetes to

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be non-severe impairments (Dkt. No. 13 at Part I); (2) the ALJ erred by failing to consider the
combined effects of Plaintiff’s impairments and in failing to consider whether Plaintiff’s severe
degenerative disc disease and bilateral knee joint pain met or equaled Sections 1.02 and/or 1.04
of the Listings; (id. at Part II); (3) the ALJ erred in failing to develop the record by failing to
obtain the treating provider’s opinions and/or failing to obtain a consultative orthopedic exam
(id. at Part III); (4) the ALJ erred in his determination of Plaintiff’s residual functional capacity
(“RFC”) (id. at Part IV); and (5) the ALJ erred in assessing the credibility of Plaintiff, who was
unrepresented during the hearing (id. at Part V).
Generally, in his motion for judgment on the pleadings, Defendant disagrees with each of
these arguments, and argues that the Commissioner’s decision should be affirmed. (See
generally Dkt. No. 15.)
C.

Magistrate Judge Bianchini’s Report-Recommendation

On July 20, 2012, Magistrate Judge Bianchini issued a Report-Recommendation
recommending that Defendant’s decision denying Plaintiff Social Security benefits be affirmed
and the Complaint be dismissed. (Dkt. No. 17, at Part III.B.) Generally, in support of his
recommendation, Magistrate Judge Bianchini found as follows: (1) the ALJ correctly
determined, based on substantial record evidence, that Plaintiff’s above-referenced impairments
were non-severe; (2) the ALJ properly considered the combined effects of Plaintiff’s
impairments, and correctly determined, based on substantial evidence, that Plaintiff’s
degenerative disc disease and bilateral knee joint pain met or equaled Sections 1.02 and/or 1.04
of the Listings; (3) the ALJ properly exercised his discretion in finding that further development
of the record was unnecessary; (4) the ALJ’s RFC assessment was supported by substantial

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evidence; and (5) the ALJ properly exercised his discretion to evaluate Plaintiff’s credibility, and
rendered an independent judgment regarding the extent of Plaintiff's subjective complaints based
on the objective medical and other evidence. (Id. at Part III.B.)
D.

Plaintiff’s Objections to the Report-Recommendation

On July 23, 2012, Plaintiff filed his Objections to the Report-Recommendation. (Dkt.
No. 18.) In his Objections, Plaintiff repeats the same arguments asserted in his brief in support
of his motion for judgment on the pleadings. (Compare Dkt. No. 18 [Plf.’s Obj.] with Dkt. No.
13 [Plf.’s Brief].) Indeed, Plaintiff acknowledges this fact, beginning by stating, “Plaintiff
hereby objects to the Report and Recommendation and alleges initially, of course, the same
argument set forth in the Plaintiff’s brief.” (Dkt. No. 18, at 1.)
More specifically, the bulk of Plaintiff’s Objection repeats his argument that the ALJ
erred by finding Plaintiff's lumber degenerative disc disease, bilateral degenerative knee joint
condition, asthma, peripheral vascular disease, and diabetes to be non-severe impairments. (Dkt.
No. 18, at 1-3.) For example, in doing so, Plaintiff expressly cites page 7 and 5 of his underlying
brief. (Id. at 1-2.)
Plaintiff concludes his Objection by attempting to incorporate by reference the “other
issues raised by the Plaintiff” in his underlying brief. (Id. at 3.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Magistrate Judge Bianchini’s ReportRecommendation

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
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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
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

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) (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.”).
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Notes: 1983 Addition.3 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.4 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.5
After conducting 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).

3

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).
4

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).
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B.

Standard Governing Judicial Review of Defendant’s Decision

In Part III.A. of his Report-Recommendation, Magistrate Judge Bianchini correctly
recites the legal standard governing judicial review of Defendant's decision. (Dkt. No. 17, at
Part III.A.) Furthermore, Plaintiff has not specifically objected to that recitation. (Dkt. No. 18.)
As a result, this standard is incorporated by reference in this Decision and Order, which is
intended primarily for the review of the parties.
III.

ANALYSIS
As explained above in Part I.D. of this Decision and Order, Plaintiff’s Objections merely

reiterate the same arguments that he made in his brief in support of his motion for judgment on
the pleadings. As explained above 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 report-recommendation to only a clear error
review. As a result, the Court need review Magistrate Judge Bianchini’s ReportRecommendation only for clear error.
After reviewing all of the papers in this action, the Court concludes that Magistrate Judge
Bianchini’s Report-Recommendation is free of clear error. (Dkt. No. 17.) Magistrate Judge
Bianchini 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 the Report-Recommendation
in its entirety for the reasons stated therein. (Id.) The Court would only add that, even if it were
to subject Magistrate Judge Bianchini’s Report-Recommendation to a de novo review, that
thorough and correct Report-Recommendation would survive such a review.

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ACCORDINGLY, it is
ORDERED that Magistrate Judge Bianchini’s Report-Recommendation (Dkt. No. 17) is
ACCEPTED and ADOPTED in its entirety; 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 Plaintiff’s motion for judgment on the pleadings (Dkt. No. 13) is
DENIED; 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: September 26, 2012
Syracuse, New York

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