Schrock v. Astrue

Filing 20

ORDER adopting Report and Recommendations re 17 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Christian F. Hummel's February 18, 2014 Report and Recommendation (Dkt. No. 17) is ADOPTED in its entirety for the reas ons stated therein; and the Court further ORDERS that the decision denying benefits is AFFIRMED; and the Court further ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED; and the Court further ORDERS that Defendant's m otion for judgment on the pleadings is GRANTED; and the Court further ORDERS that Plaintiff's complaint is DISMISSED; and the Court further ORDERS that the Clerk of Court shall enter judgment in Defendant's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in accordance with the Local Rules. Signed by U.S. District Judge Mae A. D'Agostino on 6/19/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
CINDY LOU SCHROCK,
Plaintiff,
vs.

3:12-cv-1898
(MAD/CFH)

CAROLYN W. COLVIN,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

FOSTER LAW OFFICE
2268 Elmira Street
P.O. Box 400
Sayre, Pennsylvania 18840
Attorneys for Plaintiff

JONATHAN P. FOSTER, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of Regional General Counsel
Region II
26 Federal Plaza - Room 3904
New York, New York 10278
Attorneys for Defendant

DENNIS J. CANNING, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff Cindy Lou Schrock brought this action pursuant to 42 U.S.C. §§ 405(g) and
1383(g), seeking a review of the Commissioner of Social Security's decision to deny her
application for benefits. The matter was referred to United States Magistrate Judge Christian F.
Hummel for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule
72.3(d). Magistrate Judge Hummel recommended that this Court affirm the Commissioner's
decision denying Plaintiff's application for benefits and dismiss Plaintiff's complaint. See Dkt.

No. 17. Presently before the Court is Plaintiff's objection to the Report and Recommendation.
See Dkt. No. 18.
In the Report and Recommendation, Magistrate Judge Hummel found that: the
Administrative Law Judge ("ALJ") did not misapply the treating physician rule with respect to
Drs. McDonald and Plotnik; the ALJ did not fail to fully develop the record; the ALJ did not fail
to act as an impartial adjudicator; and the ALJ did not err by not using a vocational expert to
determine whether Plaintiff could perform other work in the national economy. See Dkt. No. 17.
In objecting to the Report and Recommendation, Plaintiff has repeated many of the same
arguments raised before Magistrate Judge Hummel in her motion for judgment on the pleadings.
See Dkt. No. 18. In particular, Plaintiff objects to Magistrate Judge Hummel's finding with
respect to the ALJ's decision to give less than controlling weight to the opinion of her treating
physician Dr. Plotnik. See id. at 13-14.1 Plaintiff also objects to Magistrate Judge Hummel's
determination that the ALJ appropriately found that Plaintiff's visual impairments did not
constitute a significant diminishment of her capacity, such that the ALJ was required to elicit the
testimony of a vocational expert, rather than rely on the Medical-Vocational Guidelines. See id.
at 14-15. In response, Defendant first asserts that Plaintiff's objections are untimely and, in any
event, meritless. See Dkt. No. 19.
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were

To avoid confusion, anytime the Court references a specific page number for an entry on
the docket, it will cite to the page number assigned by the Court's electronic filing system.
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applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial
evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971) (citations and quotations omitted).
If supported by substantial evidence, the Commissioner's finding must be sustained "even
where substantial evidence may support the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
for that of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part
of a Magistrate Judge's Report and Recommendation to which a party specifically objects.
Failure to timely object to any portion of a Magistrate Judge's Report and Recommendation
operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (quoting Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989)). "To the extent, . . . that [a] party makes only conclusory or general arguments, or simply
reiterates the original arguments, the Court will review the Report strictly for clear error."
Watson v. Astrue, No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22, 2010) (citing,
inter alia, Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (observing that
"[r]eviewing courts should review a report and recommendation for clear error where objections
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are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing
of the same arguments set forth in the original petition") (citation and internal quotation marks
omitted)).
In the present matter, although timely2, Plaintiff has "submitt[ed] papers to [the] district
court which are nothing more than a rehashing of the same arguments and positions taken in the
original papers submitted to the Magistrate Judge." Petty v. Colvin, No. 12 Civ. 1644, 2014 WL
2465109, *1 (S.D.N.Y. June 2, 2014) (citing Pu v. Charles H. Greenthal Mgmt. Corp., 08 Civ.
10084, 2010 WL 774335, *1 (S.D.N.Y. Mar. 9, 2010)). As such, the Court will review
Magistrate Judge Hummel's Report and Recommendation for clear error. See Dahl v. Cmm'r of
Soc. Sec., No. 12-cv-302, 2013 WL 5493677, *1 & n.4 (N.D.N.Y. Oct. 1, 2013).
Having carefully reviewed Magistrate Judge Hummel's thorough Report and
Recommendation, the Court finds no clear error. With respect to Plaintiff's argument regarding
the weight accorded the opinion of Dr. Plotnik pursuant to the treating physician rule, Magistrate
Judge Hummel correctly noted that the ALJ was free to reject "Dr. Plotnik's ultimate opinion
regarding Schrock's ability to work." Dkt. No. 17 at 9. It is well settled that "'[t]reating source
opinions on issues that are reserved to the Commissioner are never entitled to controlling weight
or special significance.'" Rodriguez v. Astrue, 2013 WL 690502 (W.D.N.Y. Feb. 25, 2013)
(quoting SSR 96-5p, 1996 WL 374183, *2 (Soc. Sec. Admin. 1996)). Magistrate Judge Hummel

The Court rejects Defendant's argument that Plaintiff's objections were untimely.
Magistrate Judge Hummel's Report and Recommendation was filed on February 18, 2014. Any
objections thereto must be made "[w]ithin 14 days after being served with a copy of the
recommended disposition," Fed. R. Civ. P. 72(b)(2); see also 28 U.S.C. § 636(b)(1), plus an
additional three days when service is made pursuant to Federal Rule of Civil Procedure
5(b)(2)(E), (F), see Fed. R. Civ. P. 6(d); see also N.D.N.Y. General Order #22 § 5.5, for a total of
seventeen days. As such, any objections were due to be filed by March 7, 2014. Accordingly,
Plaintiff's objections, which were filed on March 7, 2014, were timely.
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also noted that the ALJ properly supported his decision to give "little weight" to Dr. Plotnik's
opinion with "good reasons," including an analysis of the objective medical record as a whole, as
well as a discussion of the opinions of consultative examiner Dr. Persaud, treating physician Dr.
McDonald, and a physician who saw Plaintiff on a referral, Dr. Weisenthal. Thus, contrary to
Plaintiff's assertion, the ALJ fulfilled his duty to specifically identify medical evidence which is
inconsistent with the opinions (other than those on issues reserved to the Commissioner) of
treating source Dr. Plotnik.
Plaintiff's argument that the ALJ improperly relied upon the Medical-Vocational
Guidelines at step five of the sequential analysis is equally unavailing. Plaintiff asserts that her
visual impairments significantly diminished her ability to work beyond the incapacity caused
solely by her exertional limits, necessitating the use of a vocational expert to determine whether
jobs exist in the national economy that she can perform. The ALJ specifically addressed this
issue, finding that the guidance set forth in SSR 83-14 did not command the use of a vocational
expert:
Where a person has a visual impairment which is not of Listing
severity but causes the person to be a hazard to self and others –
usually a constriction of visual fields rather than a loss of acuity –
the manifestations of tripping over boxes while walking, inability to
detect approaching persons or objects, difficulty in walking up and
down stairs, etc., will indicate to the decision-maker that the
remaining occupational base is significantly diminished for light
work. [citing SSR 83-14, 1983 WL 31254 (Soc. Sec. Admin. 1983)
(discussing use of Medical-Vocational Rules as a framework for
evaluating combination of light exertion combined with visual
impairment)].
However, this does not apply in the instant case. In the most recent
report, a treating physician stated she has a normal field of vision,
muscle function and visual efficiency in her left eye; and is capable
of traveling by bus alone . . . . Therefore, the medical evidence
indictates she is capable of seeing well enough to avoid hazards.
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Dkt. No. 9-2 at 17. Accordingly, the ALJ was entitled to make a finding of not disabled without
the use of vocational expert testimony.
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Christian F. Hummel's February 18, 2014 Report and
Recommendation (Dkt. No. 17) is ADOPTED in its entirety for the reasons stated therein; and
the Court further
ORDERS that the decision denying benefits is AFFIRMED; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED; and the Court
further
ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the
Court further
ORDERS that Plaintiff's complaint is DISMISSED; and the Court further
ORDERS that the Clerk of Court shall enter judgment in Defendant's favor and close this
case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: June 19, 2014
Albany, New York

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