Silsbee v. Colvin

Filing 18

DECISION and ORDER. Magistrate Judge Baxter's Report-Recommendation, Dkt. No. 15 , is ACCEPTED and ADOPTED in its entirety; and ORDERED that Plaintiff's Complaint, Dkt.No. 1 , is DISMISSED. Signed by Judge Glenn T. Suddaby on 7/23/2015. (lah)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
LISA SILSBEE,
Plaintiff,
3:14-CV-0345
(GTS/ATB)

v.
CAROLYN W. COLVIN, COMMISSIONER
OF SOCIAL SECURITY,
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
OFFICE OF REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

AMANDA J. LOCKSHIN, ESQ.

GLENN T. SUDDABY, United States District Judge
DECISION and ORDER
Currently before the Court, in this action filed by Lisa Silsbee (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or “Commissioner”) seeking Social Security
Disability Insurance Benefits pursuant to 42 U.S.C. § 405(g), are the following: (1) the ReportRecommendation of United States Magistrate Judge Andrew T. Baxter, 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 Plaintiff’s Complaint be dismissed in its entirety; (2) Plaintiff’s

Objections to the Report-Recommendation; and (3) Defendant’s Response to Plaintiff’s
Objections. (Dkt. Nos. 14, 16, 17.) For the reasons set forth below, Plaintiff’s Objections are
rejected; Magistrate Judge Baxter’s Report-Recommendation is accepted and adopted in its
entirety; and Plaintiff’s Complaint is dismissed.
I.

RELEVANT BACKGROUND
A.

Procedural History

On April 26, 2011, Plaintiff filed an application for Disability Insurance Benefits,
alleging a disability onset date of January 29, 2010, which left her unable to work.
(Administrative Transcript [“T.”] at 136-137).1 On June 30, 2011, Plaintiff’s application was
initially denied by the Social Security Administration. (T. at 79-82.) Plaintiff appealed the
decision and, on November 8, 2012, a hearing was held before an Administrative Law Judge
(“ALJ”) of the Social Security Administration. (T. at 28-70.)
On January 11, 2013, the ALJ issued a decision finding that Plaintiff was not disabled.
(T. at 11-24.)2 Plaintiff appealed the ALJ’s decision to the Social Security Administration’s
Appeals Council and, on October 2, 2009, the Appeals Council denied Plaintiff’s request for
further review, making the ALJ’s decision final. (T. at 1-5.) On March 28, 2014, Plaintiff
commenced this action in federal court. (Dkt. No. 1.)
Generally, in her brief in support of her Complaint, Plaintiff essentially asserts three

1

“To be eligible for disability insurance benefits, a claimant must establish an
‘inability to engage in any substantial gainful activity by reason of any medically determinable
physical or mental impairment . . . which has lasted or can be expected to last for a continuous
period of not less than 12 months.’” Dixie v. Comm’r of Soc. Sec., 05-CV-0345, 2008 WL
2433705 at *7 (N.D.N.Y. June 12, 2008) (Mordue, J.) (citation omitted).
2

The ALJ determined that Plaintiff has the following impairments: fibromyalgia,
history of thrombophlebitis, prescription narcotic pain medication dependence and obesity. (T.
at 13-17.)

arguments: (1) the ALJ erred by failing to properly consider and assess all of Plaintiff’s severe
impairments (including her knee impairment, back impairment, joint pain, plantar fasciitis,
psychiatric impairments, and the side effects of medication) and include the true limiting effect
of those impairments in the Residual Functional Capacity (“RFC”) determination, resulting in an
RFC evaluation that is not supported by substantial evidence; (2) the ALJ erred by failing to
properly weigh the medical evidence; and (3) the ALJ erred by failing to obtain testimony from a
vocational expert. (Dkt. No. 11.)
Generally, in her brief in response to Plaintiff’s brief, Defendant disagrees with each of
these arguments, and argues that the Commissioner’s decision should be affirmed. (Dkt. No.
14.)
B.

Magistrate Judge Baxter’s Report-Recommendation

On May 4, 2015, Magistrate Judge Baxter issued a Report-Recommendation
recommending that the Commissioner’s decision be affirmed, and that Plaintiff’s Complaint be
dismissed. (Dkt. No. 15.) Generally, Magistrate Judge Baxter’s Report-Recommendation is
based on the following findings and conclusions: (1) the ALJ’s finding that Plaintiff does not
have a “severe impairment” which significantly limits her physical or mental ability to do basic
work activities is supported by substantial evidence; (2) the ALJ’s finding that Plaintiff has the
RFC to perform a full range of sedentary work is supported by substantial evidence; and (3)
because the ALJ found that Plaintiff could perform a full range of sedentary work, a vocational
expert was not required. (Id. at Parts VI to VIII.)
C.

Plaintiff’s Objection to the Report-Recommendation

On May 19, 2015, Plaintiff filed her Objections to the Report-Recommendation,
expressly asserting “the same” arguments as asserted in Plaintiff’s brief in support of her
Complaint. (Dkt. Nos. 11, 16.)

On June 2, 2015, Defendant filed her Response to Plaintiff’s Objections, asserting two
arguments: (1) because Plaintiff relies exclusively on the arguments raised in her brief in support
of her Complaint, the Court need review the Report-Recommendation only for clear error; and
(2) the Report-Recommendation survives that clear-error review, the ALJ’s decision that
Plaintiff remained capable of work being based on substantial evidence. (Dkt. No. 17.)

II.

GOVERNING LEGAL STANDARDS
A.

Standard Governing Review of a Report-Recommendation

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
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).3 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.4 Similarly, a district court will ordinarily refuse to consider argument that could
3

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.”).
4

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

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 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

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.”).

review.5 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.6
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).
B.

Standard Governing Judicial Review of Defendant’s Decision

In Part II.A. of his Report-Recommendation, Magistrate Judge Baxter correctly recited
the legal standard governing judicial review of Defendant's decision. (Dkt. No. 14, at Part II.A.)
As a result, this standard is incorporated by reference in this Decision and Order, which is
intended primarily for the review of the parties.

5

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.).
6

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).

III.

ANALYSIS
After conducting a clear-error review of all of the papers in this action, including

Magistrate Judge Baxter’s Report-Recommendation, the Court concludes that Magistrate Judge
Baxter’s thorough Report-Recommendation is correct in all respects. (Dkt. No. 14.) Magistrate
Judge Baxter 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 ReportRecommendation in its entirety for the reasons stated therein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Baxter’s Report-Recommendation (Dkt. No. 15) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: July 23, 2015
Syracuse, New York