Medovich v. Colvin
Filing
18
MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' January 16, 2015 16 Report and Recommendation (Dkt. No. 16) is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Medovich's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Chief Judge Gary L. Sharpe on 3/23/2015. (jel, )
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
ERIN C. MEDOVICH,
Plaintiff,
3:13-cv-1244
(GLS/ESH)
v.
CAROLYN W. COLVIN,
Commissioner of Social Security
Administration,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Foster Law Office
2268 Elmira Street
P.O. Box 400
Sayre, PA 18840
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261
JONATHAN P. FOSTER, ESQ.
MONIKA K. CRAWFORD
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 Erin C. Medovich 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 January 16, 2015, Magistrate Judge Earl S.
Hines recommended that the Commissioner’s decision be affirmed. (Dkt.
No. 16.) Pending are Medovich’s objections to the R&R. (Dkt. No. 17.)
For the reasons stated below, the court adopts the R&R in its entirety.
II. Background1
On January 27, 2011, Medovich filed an application for DIB under the
Social Security Act. (Tr.2 at 89, 111-19.) After her application was denied,
Medovich requested a hearing before an Administrative Law Judge (ALJ),
which was held on May 16, 2012. (Id. at 44-76, 90-94, 95-96.) On June 8,
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 1-4, 8-25.)
Medovich commenced the present action by filing a complaint on
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The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 12, 13, 16.)
2
Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 10.)
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October 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. 16.)
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
magistrate judge for clear error. See id. at *4-5.
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IV. Discussion
In the R&R, Magistrate Judge Hines found that the ALJ: (1)
adequately developed the administrative record; (2) did not err in weighing
the medical opinions of record; (3) rendered a residual functional capacity
(RFC) assessment that appropriately accounted for all of Medovich’s
limitations; (4) provided good reasons, supported by substantial evidence,
for his credibility determination; and, (5) appropriately relied on the
testimony of a vocational expert (VE) at step five of the sequential
evaluation. (Dkt. No. 16 at 5-27.) Medovich purports to object to the R&R
on four grounds. (See generally Dkt. No. 17.) In particular, Medovich
objects to Judge Hines’: (1) failure to give significance, properly consider,
and explain his reasoning for rejecting the opinion of consulting examiner
Deryck Brown; (2) failure to find that the ALJ erred in his presentation of an
incomplete hypothetical to the VE and failing to sustain his burden of
identifying other work which Medovich could perform; (3) conclusion that
the ALJ fulfilled his obligation to adequately developed the record; and (4)
finding that there was substantial evidence 3 to support the Commissioner’s
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“Substantial evidence is defined as more than a mere scintilla. It means such relevant
evidence as a reasonable mind might accept to support a conclusion.” Alston v. Sullivan, 904
F.2d 122, 126 (2d Cir. 1990) (internal quotation marks and citations omitted). Stated another
way, “[i]f evidence is susceptible to more than one rational interpretation, the Commissioner’s
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decision. (Id. at 8-21.) The substance of the first three arguments,
however, was previously raised in Medovich’s brief and considered and
rejected by Judge Hines. (Dkt. No. 12 at 9-18; Dkt. No. 16 at 5-28.) These
“objections,” therefore, are general and do not warrant de novo review.
See Almonte, 2006 WL 149049 at *4. Medovich’s argument with respect to
substantial evidence supporting the Commissioner’s decision, on the other
hand, contains specific legal objections to Judge Hines’ conclusions, and
the court will review this objection to the R&R de novo.
A.
RFC Determination
In his R&R, Judge Hines concluded that the ALJ’s RFC
determination4 appropriately accounted for all of Medovich’s limitations
established by the evidence. (Dkt. No. 16 at 9-24.) Medovich contends
that this conclusion was in error because the report of neurologist
Priyantha Herath5 was “totally contradictory” to the treatment records of
conclusion must be upheld.” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014); see
Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982).
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The ALJ determined that, through her last insured date, Medovich retained the RFC to
perform light work that did not require climbing, or exposure to temperature extremes, high
humidity, unprotected heights or dangerous machinery. (Tr. at 15.) The ALJ also found that
Medovich was limited to simple, repetitive tasks, involving simple judgment. (Id.)
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Dr. Herath treated Medovich on one occasion, after she suffered “a frontal and a
cerebellar acute stroke,” and opined that “functionally she is not disabled at all,” and
experiences no neurological symptoms. (Tr. at 285-87.)
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treating family practitioner Himanshu Paliwal. (Dkt. No. 17 at 18.)
Moreover, Medovich argues that the opinions of Dr. Herath and nonexamining medical consultant Anne Zaydon 6 are not sufficient to constitute
substantial evidence. (Id. at 20-21.) Finally, Medovich claims that,
contrary to Judge Hines’ decision, the opinion of consulting examiner
Brown included limitations inconsistent with the ALJ’s RFC determination.
(Id. at 19.)
After reviewing the administrative record, the court concludes that the
opinion of Dr. Herath was consistent with the treatment notes of Dr.
Paliwal. Specifically, although on November 9, 2009 Dr. Paliwal noted that
Medovich had an abnormal cerebellar exam, abnormal coordination, and
grip strength weaker on the left than right side, shortly thereafter Dr.
Paliwal reported that Medovich’s grip strength was improving with physical
therapy and her physical examination, including coordination, was normal.
(Tr. at 279-81, 288-90.) Subsequently, Dr. Paliwal noted that Medovich
had “recovered from the stroke except for some difficulty in fine motor
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Dr. Zaydon opined that Medovich can frequently lift twenty-five pounds, stand and/or
walk six hours in an eight-hour day, and sit for six hours in an eight-hour day. (Tr. at 83.)
According to Dr. Zaydon, Medovich could occasionally climb stairs, never climb ladders or
scaffolds, and occasionally crouch or crawl. (Id.) Dr. Zaydon also recommended that Medovich
avoid concentrated exposure to extreme temperatures, wetness, humidity, and respiratory
rritants as well as avoid exposure to hazards. (Id. at 84.)
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function of left fingers.” (Id. at 264.) Further, contrary to Medovich’s
argument, the opinions of non-examining State agency medical consultants
can constitute substantial evidence to support an ALJ’s RFC determination,
since such consultants are deemed to be qualified experts in the field of
social security disability. See Baszto v. Astrue, 700 F. Supp. 2d 242, 249
(N.D.N.Y. 2010); see also Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir.
1995) (noting that the applicable regulations “permit the opinions of nonexamining sources to override treating sources’ opinions provided they are
supported by evidence in the record”); Florez v. Apfel, No. CV 97-3052,
1998 WL 760334, at *6-7 (E.D.N.Y. Aug. 31, 1998) (“Given that [the
medical expert’s] opinions are supported by the record, and [the treating
physician’s] opinion that the [claimant] was disabled is not, the ALJ was
free to find the non-examining expert’s testimony persuasive.”).
Given the opinions of Drs. Herath and Zaydon as well as the
treatment records of Dr. Paliwal, the ALJ’s RFC determination is supported
by substantial evidence. While Medovich contends that the opinion of
consulting examiner Brown that Medovich can stand or walk for only three
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hours at a time is inconsistent with the requirements of light work, 7 (Dkt.
No. 16 at 16-17; Dkt. No. 17 at 19), a closer reading of Dr. Brown’s report
reveals that he opined that Medovich suffered no limits in her ability to
stand or walk, as the ability to stand and walk for three hours at a time was
within normal limits. (Tr. at 331.) Medovich also argues that the ALJ’s
finding that Medovich could only perform light work did not adequately
account for her left-side weakness. (Dkt. No. 17 at 19.) However, at the
administrative hearing, the VE explicitly testified to jobs which Medovich
could perform if she was able to handle objects with her non-dominant left
hand on only an occasional basis. (Tr. at 71-72.) The ALJ relied on the
VE’s testimony to determine, at step five of the sequential evaluation, that
there were jobs existing in significant numbers in the national economy
through Medovich’s last insured date that she could perform. (Id. at 21.)
Thus, the ALJ’s failure to explicitly include a limitation in his RFC
determination with respect to Medovich’s left side weakness is, at most,
harmless error. See Schaal v. Apfel, 134 F.3d 496, 504 (2d Cir. 1998)
(“Where application of the correct legal standard could lead to only one
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Light work requires lifting no more than twenty pounds at a time with frequent lifting or
carrying of up to ten pounds. See 20 C.F.R. § 404.1567(b). Further, “the full range of light work
requires standing or walking, off and on, for a total of approximately [six] hours of an [eight]-hour
workday.” SSR 83-10, 1983 WL 31251, at *6 (1983).
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conclusion, we need not remand.” (citation omitted)).
B.
Remaining Findings and Conclusions
As to the remainder of Medovich’s objections, the court, having
carefully reviewed the record, finds no clear error in the R&R and accepts
and adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ January 16, 2015
Report and Recommendation (Dkt. No. 16) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Medovich’s complaint (Dkt. No. 1) is DISMISSED; and it is further
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.
March 23, 2015
Albany, New York
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