Colvin v. Colvin

Filing 22

DECISION AND ORDER accepting and adopting # 20 Magistrate Judge Carter's Report and Recommendation in its entirety. Defendant's motion for judgment on the pleadings is granted, and the Plaintiff's motion for judgment on the pleadings is denied. The Commissioner's determination is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 3/28/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
SEAN COLVIN,
Plaintiff,
3:15-CV-1033
(GTS/WBC)

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

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

VERNON NORWOOD, ESQ.
Special Assistant U.S. Attorney

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

Plaintiff’s Complaint be dismissed; and (2) Plaintiff’s Objection to the Report-Recommendation.
(Dkt. Nos. 16, 17.) For the reasons stated below, the Report-Recommendation is adopted, the
Commissioner’s motion for judgment on the pleadings is granted, Plaintiff’s motion for
judgment on the pleadings is denied, the Commissioner’s decision is affirmed, and Plaintiff’s
Complaint is dismissed.
I.

RELEVANT BACKGROUND
A.

Factual Background and Procedural History

Because this Decision and Order is intended primarily for the review of the parties, and
they have not objected to Parts I.A. and I.B. of the Report-Recommendation, which correctly
recite the factual background and procedural history of this action, the Court will not repeat that
information in this Decision and Order, but will respectfully refer the reader to Parts I.A. and
I.B. of the Report-Recommendation. (Dkt. No. 20, at Parts I.A. and I.B.)
B.

Parties’ Arguments on Their Motions for Judgment on the Pleadings
1.

Plaintiff’s Brief and Supplemental Brief

Generally, in his brief and supplemental brief in support of his motion, Plaintiff asserts
the following five arguments: (1) the Administrative Law Judge (“ALJ”) failed to properly
assess Plaintiff’s limitations on his work pace and his ability to engage in continuing and
systematic employment; (2) the ALJ incorrectly determined that Plaintiff could meet the physical
demands of light work; (3) the ALJ failed to properly assess Plaintiff’s learning disorder as
severe or to consider the true limiting effects of that impairment in making his Residual
Functional Capacity (“RFC”) determination; (4) the ALJ’s determination regarding whether
there are significant numbers of jobs in the national economy that Plaintiff can perform given his

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RFC, age, education, and work experience is not supported by substantial evidence; and (5) at
Step Five of the governing evaluation process, the ALJ erred because the vocational expert’s
testimony on cross-examination confirms that Plaintiff cannot do either his past relevant work or
other work. (Dkt. No. 10, at Points I-IV; Dkt. No. 12, at Point 1.)
2.

Defendant’s Brief

Generally, in her brief in support of her motion, Defendant argues that the
Commissioner’s decision (that Plaintiff is not disabled) is supported by substantial evidence for
the following three reasons: (1) at Step Two of the governing evaluation process, the ALJ
correctly determined that Plaintiff’s learning disorder is not a severe impairment, because (a)
Plaintiff failed to demonstrate that his learning disorder significantly limited his ability to
perform basic work activities, and (b) in any event, the ALJ considered Plaintiff’s non-severe
impairments, including his learning disorder, in combination with his severe impairments
throughout the remainder of the sequential evaluation; (2) the ALJ properly determined that
Plaintiff retained the RFC to perform a range of unskilled, light work, because (a) the RFC
determination was supported by substantial evidence, (b) the ALJ correctly determined that
Plaintiff’s Crohn’s disease/irritable bowel syndrome did not result in any work-related
limitations, and (c) under the circumstances, the ALJ did not need to afford significant weight to
the opinions of consultative physician Dr. Justine Magurno, family physician Dr. Timothy
Roche, or Family Nurse Practitioner Cori Pane; and (3) at Step Five of the governing five-step
evaluation process, the ALJ properly determined that Plaintiff retained the RFC to perform work
which exists in significant numbers in the national economy, because (a) he correctly determined
Plaintiff’s RFC, (b) he correctly applied the applicable grids rules, (c) he correctly obtained and

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relied upon the testimony of an impartial vocational expert including a response to a hypothetical
question posed by the ALJ which accurately reflected Plaintiff’s RFC, and (d) he correctly
rejected the vocational expert’s answer to the hypothetical question posed by Plaintiff’s counsel
on cross-examination which confusingly failed to clarify whether it was asking about Plaintiff’s
left hand only (as the ALJ’s hypothetical question had done) or about Plaintiff’s left hand, right
hand or both hands. (Dkt. No. 13, at “Argument.”)1
3.

Plaintiff’s Reply Brief

Generally, in his reply brief, Plaintiff argues that, contrary to Defendant’s argument,
Plaintiff’s hypothetical question did not confusingly alter the ALJ’s hypothetical question (which
was about Plaintiff’s left non-dominant hand) to one about Plaintiff’s right hand or both hands.
(Dkt. No. 15.)
C.

Magistrate Judge Carter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Carter rendered the
following findings of fact and conclusions of law: (1) the ALJ committed no error in his Step
Two determination (i.e., regarding whether Plaintiff has a severe impairment or combination of
impairments), because (a) Plaintiff failed to demonstrate that his learning disorder significantly
limited his ability to perform basic work activities, and (b) in any event, the ALJ considered
Plaintiff’s non-severe impairments, including his learning disorder, in combination with his
severe impairments throughout the remainder of the sequential evaluation; (2) the ALJ

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Among Plaintiff’s severe impairments is the partial amputation of his left (nondominant) index, middle and ring fingers, due to a table saw accident. (Tr. at 14-15.) More
specifically, Plaintiff’s left hand is missing the distal to the distal phalanx of the index finger and
the proximal phalanx of the middle and ring fingers. (Id. at 15.)
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committed no error in his RFC determination, because (a) his physical RFC determination was
supported by substantial evidence in the record including opinion evidence, treatment notations,
and Plaintiff’s reported activities of daily living (and the ALJ did not need to afford significant
weight to the opinions of Dr. Magurno, Dr. Roche, or FNP Pane), and (b) his mental RFC
determination was supported by substantial evidence including the medical source opinion
provided by consultative examiner, Sara Long, Ph.D. (and the ALJ did not err in affording
limited weight to Dr. Roche’s opinion regarding Plaintiff’s mental limitations); and (3) the ALJ
committed no error in his Step Five determination (i.e., regarding whether there are significant
numbers of jobs in the national economy that Plaintiff can perform given his RFC, age,
education, and work experience), because (a) he correctly obtained and relied upon the testimony
of an impartial vocational expert that Plaintiff could perform the requirements of interview
survey worker, parking lot attendant, and ticket seller, and (b) Plaintiff’s argument to the
contrary relies on a hypothetical question posed by Plaintiff’s counsel to the vocational expert
which was both confusing (in that it failed to clarify whether it was asking about Plaintiff’s left
hand, right hand, or both hands) and inaccurate (in that it altered the ALJ’s hypothetical question
to a much more limiting one which assumed that Plaintiff’s RFC limited him to no frequent or
no constant handling, fingering or reaching). (Dkt. No. 20, at Part IV.)
D.

Plaintiff’s Objection to the Report-Recommendation

Generally, in his Objection to the Report-Recommendation, Plaintiff argues that the
Magistrate Judge erred with regard to the ALJ’s Step Five determination because the Magistrate
Judge incorrectly found that Plaintiff’s hypothetical questioning of the vocational expert
inaccurately reflected Plaintiff’s RFC (and that the ALJ’s hypothetical questioning of the

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vocational expert accurately reflected Plaintiff’s RFC). (Dkt. No. 21.) More specifically,
Plaintiff argues as follows: (1) Plaintiff’s RFC included a limitation of only occasional handling
with the left hand and no fingering with the left hand; (2) the vocational expert testified on crossexamination by Plaintiff that, if (hypothetically) the occupations adopted by the ALJ require
either frequent or constant handling or fingering with the left hand, then Plaintiff could not
perform those jobs; (3) based on the evidence subsequently supplied by the vocational expert and
the Standard Classification of Occupations, all of the occupations adopted by the ALJ (i.e.,
interview survey worker, parking lot attendant, and ticket seller) require either frequent or
constant handling and fingering; (4) contrary to Defendant’s argument, Plaintiff’s hypothetical
question did not confusingly alter the ALJ’s hypothetical question (which was about Plaintiff’s
left non-dominant hand) to one about Plaintiff’s right hand or both hands; and (5) contrary to the
ALJ’s finding, Plaintiff’s hypothetical question did not inaccurately alter the ALJ’s hypothetical
question (which assumed an RFC that limited Plaintiff to occasional handling with his left
non-dominant hand and no fingering with his left non-dominant hand) to a much more limiting
hypothetical question which assumed Plaintiff’s RFC limited him to no frequent or no constant
handling, fingering or reaching. (Id.)
II.

GOVERNING LEGAL STANDARDS
A.

Standard Governing Review of 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

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report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).2
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.3 Similarly, a district court will ordinarily refuse to consider argument that could 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

2

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.”).
3

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
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) (finding that 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.”).
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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
review.4 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.5

4

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.).
5

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).
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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

Because the parties have not objected to Part III.A. of the Report-Recommendation,
which correctly recites the legal standard governing judicial review of Defendant's decision, that
standard is incorporated by reference in this Decision and Order, which (again) is intended
primarily for the review of the parties. (Dkt. No. 20, at Part III.A.)
III.

ANALYSIS
After carefully reviewing all of the papers in this action, including Magistrate Judge

Carter’s Report-Recommendation, the Court concludes that Magistrate Judge Carter’s thorough
Report-Recommendation is correct in all respects. (Dkt. No. 20.) Magistrate Judge Carter
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 Report-Recommendation in its
entirety for the reasons stated therein. To those reasons, the Court adds the following analysis.
As an initial matter, the Court finds that Plaintiff’s Objection does not challenge the first
two findings of fact and conclusions of law of the Magistrate Judge, which are summarized
above in Part I.C. of this Decision and Order. (Compare Dkt. No. 21 [Plf.’s Obj.] with Dkt. No.
20, at Part IV [Report-Recommendation].) As a result, those two findings of fact and
conclusions of law are subject to only a clear-error review. See, supra, Part II.A. of this
Decision and Order. The Court finds that they survive that review, for the reasons stated in the
Report-Recommendation (and Defendant’s brief). See, supra, Parts I.B. and I.C. of this Decision
and Order.
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Turning to Plaintiff’s challenge to the third finding of fact and conclusion of law of the
Magistrate Judge (which is also summarized above in Part I.C. of this Decision and Order), the
Court finds that the vast majority of this challenge is simply a rehashing of Plaintiff’s argument
in his supplemental brief and his reply brief. (Compare Dkt. No. 21 [Plf.’s Obj.] with Dkt. No.
12 [Plf.’s Suppl. Brief] and Dkt. No. 15 [Plf.’s Reply Brief].) As a result, the bulk of that
finding of fact and conclusion of law is also subject to only a clear-error review. See, supra, Part
II.A. of this Decision and Order. The Court finds that it also survives that review, for the reasons
stated in the Report-Recommendation (and Defendant’s brief). See, supra, Parts I.B. and I.C. of
this Decision and Order. The Court notes that, while it can follow Plaintiff’s explanation of why
his hypothetical question about handling was not intended to refer to his right hand or both hands
but only his left hand, the Court can certainly see how the ALJ could reasonably reject the
evidentiary value of the vocational expert’s answer to that question based on the confusing
nature of the question. As a literal matter, the question distinguishes between “fingering on the
left hand” and “handling.” (Tr. at 906 [referring to “no fingering on the left, and occasionally –
only occasionally handling”].) The Court notes further that Plaintiff’s explanation of the
intended meaning of this question requires the insertion of emphases and bracketed words. (Dkt.
No. 21, at 6 [Plf.’s Obj.].)
Finally, the Court finds that the only part of the Magistrate Judge’s third finding of fact
and conclusion of law that is subject to a de novo review is the portion challenged by Plaintiff’s
fifth argument in his Objection, which is summarized above in Part I.D. of this Decision and
Order (i.e., the Magistrate Judge’s finding that Plaintiff’s hypothetical question inaccurately
altered the ALJ’s hypothetical question to a much more limiting one which assumed that
Plaintiff’s RFC limited him to no frequent or no constant handling, fingering or reaching). The
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passage of testimony in question is as follows:
Q:
Let me start with the past relevant work. I know we
knocked out the mental health aide or mental – the 355.377-018 and the
machine feeder, and the teacher aide job as he actually did it because he
did it up to medium. My question is on the teacher aide Job as performed
in the national economy, and what I want to focus on is the reaching,
handling and fingering on that job because – let me start – ask it this way.
What is the reaching, handling and fingering?
A:
I don't have that here.
Q:
Okay. Well, let me ask it a different way. Assuming for a
moment that the reaching, handling and fingering, and the teacher aide or
even one of the other jobs is frequent or constant, would you agree that
given the limitations to no fingering on the left, and occasionally – only
occasionally handling, that if it’s frequent, frequent, and frequent or
constant, constant and constant that that obviously conflicts with the
hypothetical, and that the person could not do the job?
A:
The person could not do the job based on those factors.
(Tr. at 906-07.) Again, while the Court can follow Plaintiff’s explanation of why his
hypothetical question was not intended to inaccurately alter the ALJ’s hypothetical question to a
much more limiting one (which assumed that Plaintiff’s RFC limited him to no frequent or no
constant handling, fingering or reaching), the Court can certainly see how the ALJ could have
reasonably concluded that it did so, based on the entirety and context of the question, as well as
the (convoluted and ungrammatical) nature of the question, which requires the insertion of
emphases and bracketed words to explain it. (Dkt. No. 21, at 8 [Plf.’s Obj.].) In any event, even
if the Magistrate Judge erred in finding Plaintiff’s hypothetical question flawed in this respect, a
prior independent ground existed to find Plaintiff’s hypothetical question flawed (i.e., the
reasonable confusion about whether it was referring to Plaintiff’s left hand, right hand or both
hands), eliminating the evidentiary value of the vocational expert’s answer to that question.
For all of these reasons, the Report-Recommendation is adopted.

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ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 20) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that Defendant’s motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED, and Plaintiff’s motion for judgment on the pleadings (Dkt. Nos. 10, 12) is
DENIED; and it is further
ORDERED that the Commissioner’s decision is AFFIRMED, and Plaintiff’s Complaint
(Dkt. No. 1) is DISMISSED.
Dated: March 28, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge

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