Humes v. Colvin

Filing 21

DECISION AND ORDER accepting and adopting # 17 Magistrate Judge Carter's Report and Recommendation in its entirety. The Commissioner's determination is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 4/11/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
TERRI HUMES,
Plaintiff,
v.

3:14-CV-0512
(GTS/WBC)

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, NY 13761-0089

PETER A. GORTON, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL
– REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

DAVID L. BROWN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Terri Humes
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are (1) the Report and Recommendation of
United States Magistrate Judge William B. Mitchell Carter recommending that Plaintiff’s motion
for judgment on the pleadings be denied, and that Defendant’s motion for judgment on the
pleadings be granted, (2) Plaintiff’s objections to the Report and Recommendation, and (3)

Defendant’s response to Plaintiff’s objections. (Dkt. Nos. 17, 19-20.) For the reasons set forth
below, the Report and Recommendation is accepted and adopted in its entirety.
I.

PLAINTIFF’S OBJECTIONS
Generally, Plaintiff argues that the Court should reject Magistrate Judge Carter’s

recommendation to affirm the Commissioner’s determination because the Administrative Law
Judge (“ALJ”) erred in determining that Plaintiff has the residual functional capacity (“RFC”) to
perform light work. (Dkt. No. 19 at 1.)
First, Plaintiff essentially argues that Magistrate Judge Carter erred in finding that the
opinion of State agency medical consultant Dr. Wheeler (that Plaintiff could perform light work)
was not inconsistent with the opinion of consultative examiner Dr. Magurno (that Plaintiff had
mild limitations in standing and walking, and marked limitations in squatting, bending, lifting,
and carrying). (Id.) Within this argument, Plaintiff references Magistrate Judge Carter’s finding
that Dr. Magurno’s opinion was not inconsistent with Dr. Wheeler’s opinion that Plaintiff “could
stand and/or walk for two hours of an eight hour work-day.”1 (Id.) In response to this finding,
Plaintiff argues that an inability to stand six hours in an eight-hour workday would prevent her
from performing light work. (Id.) Additionally, Plaintiff notes that the opinion of treating
physician Dr. Ahmed (that she could occasionally lift five to ten pounds, and never lift more than
ten pounds) indicated that she could not perform the lifting required for light work. (Id.)
Second, Plaintiff essentially argues that the opinions of examining physicians in the
record indicate that Plaintiff is unable to perform light work and, therefore, the ALJ’s RFC
determination was unsupported by any opinion in the record from an examining physician. (Id.)

1

The Court notes that Dr. Wheeler opined that Plaintiff could stand and/or walk for “about six
hours,” not two hours, in an eight-hour workday. (T. 70.)

2

II.

DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS
Generally, Defendant makes three arguments in her response to Plaintiff’s objections.

(Dkt. No. 20.) First, Defendant addresses Plaintiff’s argument that she could not perform the
standing required for light work based on Magistrate Judge Carter’s statement that Dr.
Magurno’s opinion was not inconsistent with Dr. Wheeler’s opinion that Plaintiff could “stand
and/or walk for two hours in an eight hour work-day.” (Id. at 2.) Defendant argues that
Magistrate Judge Carter’s statement contained an inadvertent typographical error, and there is no
question that Dr. Wheeler opined that Plaintiff could stand and/or walk for six, rather than two,
hours in an eight-hour workday. (Id.)
Second, Defendant argues that Plaintiff has not shown that a marked limitation in
bending is inconsistent with light work. (Dkt. No. 20 at 2.) Within this argument, Defendant
notes that (1) light work requires the ability to bend occasionally, meaning one-third of an eighthour workday, and (2) this District has found that a claimant with a marked limitation in
performing a work-related function could perform that function occasionally. (Id.)
Third, Defendant argues that substantial evidence supports the ALJ’s finding that
Plaintiff would be able to perform the lifting required for light work including, (1) treating nurse
practitioner Munroe’s assessment that Plaintiff could lift and/or carry up to 20 pounds, and (2)
Dr. Wheeler’s opinion that Plaintiff could frequently lift ten pounds and occasionally lift 20
pounds during an eight-hour workday. (Id. at 2-4.)
III.

APPLICABLE LEGAL STANDARD
A district court reviewing a magistrate judge’s Report and Recommendation “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). Parties may raise objections to the magistrate
3

judge’s Report and Recommendation, but they must be “specific written objections,” and must
be submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.”
Fed. R. Civ. P. 72(b)(2); accord, 28 U.S.C. § 636(b)(1)(C). “A judge of the court shall make a
de novo determination of those portions of the [Report and Recommendation] . . . to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); accord, Fed. R. Civ. P. 72(b)(2). “Where,
however, an objecting party makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”
Caldwell v. Crosset, 9-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y. June 9, 2010) (quoting
Farid v. Bouey, 554 F. Supp. 2d 301, 307 [N.D.N.Y. 2008]) (internal quotation marks omitted).
IV.

ANALYSIS
The Court finds that Plaintiff’s first objection (as set forth above in Part I. of this

Decision and Order) constitutes a specific challenge to the Report and Recommendation.
Therefore, the Court reviews the portion of Magistrate Judge Carter’s Report and
Recommendation addressed in Plaintiff’s first objection de novo. Magistrate Judge Carter found
that Dr. Magurno’s opinion was not inconsistent with Dr. Wheeler’s opinion that Plaintiff could
“stand and/or walk for two hours in an eight hour work-day.” (Id. at 2.) A review of the record
confirms that Dr. Wheeler opined that Plaintiff could stand and/or walk for “about six hours” in
an eight-hour workday. (T. 70.) Although Magistrate Judge Carter’s finding contained a
typographical error, it is harmless under the circumstances. Elsewhere in the Report and
Recommendation, Magistrate Judge Carter correctly noted that Dr. Wheeler opined that Plaintiff
could perform the exertional requirements of light work, and Magistrate Judge Carter correctly
found that Dr. Magurno’s opinion was not inconsistent with Dr. Wheeler’s opinion. (Dkt. No.
17 at 18, 21.)
4

Turning to Plaintiff’s remaining objections, the Court finds that Plaintiff’s second and
third objections (as set forth above in Part I. of this Decision and Order) merely reiterate
arguments presented in her initial brief. (Compare Dkt. No. 19 with Dkt. No. 13.) Therefore the
Court reviews the portions Magistrate Judge Carter’s Report and Recommendation addressed in
Plaintiff’s second and third objections for clear error only. After carefully reviewing the relevant
filings in this action, the Court can find no clear error in the Report and Recommendation.
Magistrate Judge Carter employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. (Dkt. No. 17.)
Therefore, the Court accepts and adopts the Report and Recommendation in its entirety
for the reasons stated herein, in the Report and Recommendation, and in Defendant’s response to
Plaintiff’s objections. (Dkt. Nos. 17, 20.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report and Recommendation (Dkt. No. 17) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: April 11, 2016
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

5