Lewyckyj v. Colvin

Filing 17

ORDER adopting Report and Recommendations re 15 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Thrse Wiley Dancks March 5, 2014 Report and Recommendation (Dkt. No. 15) is ADOPTED in its entirety for the reasons stated th erein; 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 judgm ent 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. Signed by U.S. District Judge Mae A. D'Agostino on 7/17/14. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN LEWYCKYJ,
Plaintiff,
vs.

3:13-cv-126
(MAD/TWD)

CAROLYN W. COLVIN,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

STANLEY LAW, L.L.P.
215 Burnet Avenue
Syracuse, New York 13203
Attorneys for Plaintiff

JAYA C. SHURTLIFF, ESQ.

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

MONIKA K. CRAWFORD, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff John Lewyckyj 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 his application for
benefits. The matter was referred to United States Magistrate Judge Thérèse Wiley Dancks for a
Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). Magistrate
Judge Dancks recommended that this Court affirm the Commissioner's decision denying
Plaintiff's application for benefits and dismiss Plaintiff's complaint. See Dkt. No. 15. Presently
before the Court is Plaintiff's timely objection to the Report and Recommendation. See Dkt. No.

16.

The Report and Recommendation contains a comprehensive summary of the record below,

familiarity with which is assumed.
In the Report and Recommendation, Magistrate Judge Dancks found that: the
Administrative Law Judge's ("ALJ") rejection of Plaintiff's treating physician's opinion was
conducted under the correct legal standard and was supported by substantial evidence; the ALJ's
residual functional capacity ("RFC") assessment was conducted under the correct legal standard
and was supported by substantial evidence; the ALJ's determination that Plaintiff could perform
past relevant work was conducted under the correct legal standard and was supported by
substantial evidence; and the ALJ was under no obligation to further develop the record with
respect to Plaintiff's alleged physical impairments and limitations. See Dkt. No. 15. In objecting
to the Report and Recommendation, Plaintiff has repeated many of the same arguments raised
before Magistrate Judge Dancks in his motion for judgment on the pleadings, and made new
arguments raised for the first time in his objection. See Dkt. No. 16. In particular, Plaintiff
objects to Magistrate Judge Dancks' finding with respect to the ALJ's decision to give less than
controlling weight to the opinion of his treating physician Dr. Tinio. See id. at 1-4.1 Plaintiff also
objects to Magistrate Judge Dancks' determination that the ALJ appropriately found that Plaintiff
could perform past relevant work as an art model. See id. at 4-5.
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).
In reviewing a report and recommendation, a district 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). 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,
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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 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)). Furthermore, it is improper for an objecting party to attempt to relitigate the
matter by "submitting 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)). Legal arguments may not be raised for the first time in an objection. Rosello v. Barnhart,
02 Civ. 4629, 2004 WL 2366177, *3 (S.D.N.Y. Oct. 20, 2004) (citing Abu-Nassar v. Elders
Futures. Inc., 88 Civ. 7906, 1994 WL 445638, *5 n.2 (S.D.N.Y. Aug. 17, 1994) ("If the Court
were to consider . . . these untimely contentions, it would unduly undermine the authority of the
Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance
additional arguments.")).
In the instant matter, Magistrate Judge Dancks' Report and Recommendation contains a
careful analysis of the Commissioner's determination to deny Plaintiff benefits and explains that
the challenged determination was based on correct legal principles and is supported by substantial
evidence in the record. Plaintiff's objections to the Report and Recommendation are either
reiterations of arguments made to Magistrate Judge Dancks, or arguments made for the first time
in his objection. Accordingly, the Court is entitled to review the Report and Recommendation for
clear error. Since some of Plaintiff's arguments could conceivably be construed as timely,

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specific legal objections to Magistrate Judge Dancks' conclusions, and affording Plaintiff every
benefit of the doubt, the Court will review the Report and Recommendation de novo.
Having carefully reviewed Magistrate Judge Dancks' thorough Report and
Recommendation, the Court finds that Magistrate Judge Dancks correctly concluded that the
Commissioner's finding should be affirmed and Plaintiff's complaint should be dismissed.
Plaintiff's first argument is that Magistrate Judge Dancks and the ALJ did not evaluate his treating
physician's opinion in accordance with the relevant legal standards.2 Specifically, Plaintiff first
contends that Magistrate Judge Dancks improperly noted that his treating physician, Dr. Tinio,
did not find Plaintiff unable to function in any category on his medical source statement, because
inability to function is not required for a finding of disability. See Dkt. No. 16 at 2. While
Plaintiff's observation that Judge Dancks noted the absence of any indication that Plaintiff is
unable to function in any of the relevant categories is correct, Plaintiff has presented no
explanation as to how this observation supports the argument that Magistrate Judge Dancks
incorrectly found no error in the ALJ's application of the treating physician rule. Neither the ALJ
nor Judge Dancks concluded that the absence of any such indication warranted, in and of itself, a
finding of not disabled. Similarly, Plaintiff states that state agency physician Dr. Inman-Dundon
did not have Dr. Tinio's records when he submitted his opinion, see Dkt. No. 16 at 2, but does not
make clear how this contention supports Plaintiff's argument that Magistrate Judge Dancks
incorrectly found no error in the ALJ's application of the treating physician rule. As Magistrate
Judge Dancks noted, the ALJ afforded Dr. Tinio's opinions little weight because they were

The Court notes that in his motion for judgment on the pleadings, Plaintiff's argument
with regard to the treating physician rule was that the ALJ's RFC determination was unsupported
by substantial evidence. On appeal, Plaintiff now argues that the incorrectly applied the treating
physician rule.
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unsupported by his own treatment records, not merely because they were inconsistent with Dr.
Inman-Dundon's. See Dkt. No. 15 at 13. In any event, this argument appears to have been raised
here for the first time and was, therefore, waived. Plaintiff next contends that Magistrate Judge
Dancks' misapplied the treating physician rule by failing to recognize that Dr. Inman-Dundon
found moderate limitations in certain areas. Dkt. No. 16 at 2. Although it is true that the ALJ and
Magistrate Judge Dancks did not specifically state that Dr. Inman-Dundon found moderate
limitations in certain areas, this omission is immaterial because the ALJ specifically noted, in
making his RFC determination, that "Dr. Inman-Dundon pointed out that the claimant is not
significantly limited in the vast majority of work-related mental activities." T. 16.3 The ALJ
further stated that, notwithstanding Dr. Inman-Dundon's finding of moderate limitations in certain
areas, "Dr. Inman-Dundon concluded that vocationally, the claimant can perform unskilled to
semi-skilled work." Id. Plaintiff next contends that Magistrate Judge Dancks incorrectly
accepted the ALJ's finding that Dr. Tinio's medical source statement opinions were inconsistent
with his own records, including that Plaintiff's symptoms were stable with medication
compliance. As with several of Plaintiff's other contentions, this argument appears to be raised
here for the first time. Nevertheless, the ALJ properly found that Dr. Tinio's records, taken as a
whole, were inconsistent with his opinions. That finding was not predicated exclusively upon Dr.
Tinio's treatment records indicating that Plaintiff's symptoms were stable with medication
compliance. T. 17 ("The undersigned gives very little weight to Dr. Tinio's medical source
statement because there is absolutely nothing in his treatment records to support such severe
limitations."). Finally, Plaintiff contends that Magistrate Judge Dancks erred in recommending
affirmance of the ALJ's determination to afford the state agency's physician's opinions greater

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Administrative Transcript, Dkt. No. 9.
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weight than the treating physician. This is another argument not specifically raised by Plaintiff in
his motion for judgment on the pleadings. Moreover, contrary to Plaintiff's assertion, it is not the
case that all conflicts between the opinions of treating and consulting sources must be resolved in
favor of the former, with the latter given limited weight. "Although the treating physician rule
generally requires deference to the medical opinion of a claimant's treating physician, . . . the
opinion of the treating physician is not afforded controlling weight where . . . the treating
physician issued opinions that are not consistent with other substantial evidence in the record,
such as the opinions of other medical experts." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir.
2004) (citations omitted); see also Williams v. Comm'r of Soc. Sec., 236 Fed. Appx. 641, 643-44
(2d Cir. 2007); Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002) (citing 20 C.F.R. §
404.1527(d) (2)). "Similarly, treating source opinion can be rejected for lack of underlying
expertise, or when it is brief, conclusory and unsupported by clinical findings, or when it appears
overly sympathetic such that objective impartiality is doubtful and goal-oriented advocacy is
reasonably suspected." Orts v. Astrue, No. 5:11-512, 2012 WL 6803588, *5 (N.D.N.Y. Nov. 14,
2012) (citations omitted). Based on the foregoing, the Court finds that Magistrate Judge Dancks
correctly concluded that the ALJ evaluated Plaintiff's treating physician's opinion in accordance
with the relevant legal standards.
Plaintiff's second argument is that Magistrate Judge Dancks erred in finding that the ALJ's
conclusion that Plaintiff could perform past relevant work was supported by substantial evidence.
Plaintiff first contends that Magistrate Judge Dancks erred in stating that part time work that is
substantial gainful activity can be past relevant work. This contention is unsupported by the law.
"Past relevant work is work that [the claimant has] done within the past 15 years, that was
substantial gainful activity, and that lasted long enough for [the claimant] to learn to do it." 20
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C.F.R. 404.1560(b). Even if a claimant cannot work the equivalent of eight hours a day for five
days a week, "[p]art-time work that was of substantial gainful activity, performed within the past
15 years, and lasted long enough for the person to learn to do it constitutes past relevant work . . .
." SSR 96-8p, 1996 WL 374184, *8 n.2 (Soc. Sec. Admin. July 2, 1996). Plaintiff next contends
that Magistrate Judge Dancks erred in recommending affirmance because the ALJ did not
evaluate whether art model was past relevant work. Contrary to Plaintiff's contention, the ALJ
made a written finding that Plaintiff's work as an art model was substantial gainful activity for
more than six months, and thus, past relevant work. Finally, Plaintiff asserts that Magistrate
Judge Dancks erred in ignoring certain inconsistencies regarding why Plaintiff left this position.
It is well settled that a Social Security claimant has the burden to show that he cannot perform
past relevant work. See Ferraris v. Heckler, 728 F.2d 582, 584 (2d Cir. 1984). As such, it was
Plaintiff's burden to resolve any inconsistencies in the reasons for the termination of his
employment as an art model in his favor. To the extent Plaintiff contends that he quit his position
as an art model because of anxiety and nervousness, he made no showing that his condition when
his employment ended in 2005, prior to receiving mental health treatment and medication,
persists today such that he would be incapable of performing the essential functions of an art
model. Accordingly, Magistrate Judge Dancks correctly concluded that the ALJ's determination
that Plaintiff could perform past relevant work was supported by substantial evidence.
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 Thérèse Wiley Dancks March 5, 2014 Report and
Recommendation (Dkt. No. 15) is ADOPTED in its entirety for the reasons stated therein; and
the Court further
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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: July 17, 2014
Albany, New York

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