Cuenca v. Colvin

Filing 19

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 5/16/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
EVELYN CUENCA,
Plaintiff,
v.

3:14-CV-0859
(GTS/WBC)

CAROLYN W. COLVIN,
Comm’r of Soc. Sec.,
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

VERNON NORWOOD, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Evelyn Cuenca
(“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, and (2) Plaintiff’s objections to the Report and Recommendation. (Dkt.

Nos. 17, 18.) For the reasons set forth below, the Report and Recommendation is accepted and
adopted in its entirety.
I.

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

finding that any error that the ALJ made at step two was harmless. (Dkt. No. 18, at 1 [Pl.’s
Mem. of Law].) Plaintiff argues that the ALJ substituted his own lay opinion in finding that
Plaintiff’s “mental conditions” were not severe at step two. (Id.) More specifically, Plaintiff
argues that the only mental opinions of record (from consultative psychiatric examiner, Mary
Ann Moore, Psy.D., and State agency psychologist, E. Kamin) “indicated that a severe condition
was established.” Second, Plaintiff states that she reasserts the other arguments set forth in her
brief. (Id.)
II.

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
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.”

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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).
III.

ANALYSIS
The Court finds that Plaintiff’s objections reiterate arguments presented in her initial

brief. (Compare Dkt. No. 18 with Dkt. No. 11) Therefore the Court reviews the portions of
Magistrate Judge Carter’s Report and Recommendation addressed in Plaintiff’s 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.)
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: May 16, 2016
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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