Hatounian v. Colvin
DECISION AND ORDER accepting and adopting # 15 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 2/15/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
CAROLYN W. COLVIN
Commissioner of Social Security,
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
JOSHUA L. KERSHNER, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Heather Hatounian,
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. 15-17.) For the reasons set forth below, the Report
and Recommendation is accepted and adopted in its entirety.
Generally, Plaintiff makes six arguments in objection to Magistrate Judge Carter’s Report
and Recommendation. First, Plaintiff argues that Magistrate Judge Carter improperly correlated
Plaintiff’s deficits in maintaining attention and concentration with job complexity. (Dkt. No. 16
at 1-5.)1 Second, Plaintiff argues that Magistrate Judge Carter failed to address Plaintiff’s
argument that she cannot maintain acceptable levels of work pace and would be unacceptably offtask.
(Id. at 1, 5-6.) Third, Plaintiff argues that, in weighing Dr. Yanusas’s opinion concerning
Plaintiff’s limitation maintaining attention and concentration, maintaining acceptable levels of
work pace, and staying on task, Magistrate Judge Carter improperly considered Plaintiff’s
alertness, ability to engage in logical and goal-directed thoughts, fair insight and judgment, and
ability to follow complex commands. (Id. at 1, 6-7.)
Fourth, Plaintiff argues that, while Magistrate Judge Carter addressed Plaintiff’s ability to
handle stress generally, he failed to address Plaintiff’s argument that she cannot handle stress on
an “occasional” basis. (Id. at 1, 7-10.) Fifth, Plaintiff argues that, while Magistrate Judge Carter
generally addressed Plaintiff’s argument concerning the weight afforded to Dr. Altmansberger’s
opinion, he (1) erroneously concluded that assessments of “moderate” impairments permit
Plaintiff to perform unskilled work, and (2) failed to consider Plaintiff’s arguments concerning
application of the regulatory factors. (Id. at 1-2, 10-13.)
Page citations refer to the page numbers used on CM/ECF rather than the page numbers contained
in the parties’ respective motion papers.
Sixth, and finally, Plaintiff essentially argues that the Court should reject Magistrate Judge
Carter’s recommendation that the ALJ’s step five determination was supported by substantial
evidence because it relied on vocational expert testimony based on a hypothetical that did not
accurately represent Plaintiff’s limitations. (Id. at 2, 12-13.)
DEFENDANT’S RESPONSE TO PLAINTIFF’S OBJECTIONS
Generally, Defendant makes five arguments in her response to Plaintiff’s objections to
Magistrate Judge Carter’s Report and Recommendation. First, Defendant argues that Plaintiff
was not disabled due to a deficit in concentration, persistence or pace. (Dkt. No. 17 at 1-7.)
Second, Defendant argues that Plaintiff was able to maintain an acceptable level of work pace.
(Id. at 7-8.) Third, Defendant argues that the ALJ properly addressed Plaintiff’s limitation dealing
with stress. (Id. at 8-11.) Fourth, Defendant argues that the ALJ did not err in considering Dr.
Altmansberger’s assessment. (Id. at 11-12.) Fifth, and finally, Defendant argues that the ALJ
properly relied on vocational expert testimony at step five of the sequential analysis. (Id. at 1213.)
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.” 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).
To the extent that Plaintiff’s first through fifth objections (as set forth above in Part I. of
this Decision and Order) raise specific objections to Magistrate Judge Carter’s findings, the Court
reviews these portions of the Report and Recommendation de novo. For the ease of analysis,
Plaintiff’s objections will be reorganized and consolidated below.
Regarding Plaintiff’s second objection, the Court notes that Magistrate Judge Carter
explicitly addressed Plaintiff’s ability to maintain work pace and remain on task. (Dkt. No. 15 at
9-14.) Moreover, the Court agrees with Magistrate Judge Carter that the ALJ’s mental RFC
determination was supported by substantial evidence, including consultative examiner Dr.
Loomis’s opinion that Plaintiff could maintain attention and concentration, and maintain a regular
Regarding Plaintiff’s first and third objections, the Court finds that Magistrate Judge
Carter properly determined that Dr. Yanusas’s restrictive opinion (as to Plaintiff’s limitation
maintaining attention and concentration, maintaining work pace, and staying on task) conflicted
with (1) Dr. Yanusas’s own mental status examination notes and findings (i.e., that Plaintiff was
alert and able to follow complex commands, and exhibited logical and goal-directed thoughts, and
fair insight and judgment) and (2) Dr. Loomis’s opinion that Plaintiff could maintain attention and
concentration, maintain a regular schedule, follow and understand simple directions and
instructions, and perform simple tasks independently.2 (Dkt. No. 15, at 9-13.)
Regarding Plaintiff’s fourth and fifth objections, the Court finds that Magistrate Judge
Carter appropriately considered Plaintiff’s arguments and correctly determined that the ALJ’s
mental RFC was supported by substantial evidence, including Dr. Loomis’s opinion that Plaintiff
could perform simple, routine, repetitive work despite her limitation dealing with stress
appropriately.3 (Dkt. No. 15, at 4, 13-16.)
Regarding Plaintiff’s sixth objection (as set forth above in Part I. of this Decision and
Order), the Court finds that Plaintiff’s objection merely reiterates arguments presented in her
initial brief. (Compare Dkt. No. 16 with Dkt. No. 12.) Therefore, the Court reviews the balance
of Magistrate Judge Carter’s Report and Recommendation for clear error only. After carefully
reviewing the relevant filings in this action, including Magistrate Judge Carter’s thorough Report
and Recommendation, the Court can find no clear error in the Report and Recommendation. (Dkt.
No. 15.) Magistrate Judge Carter employed the proper standards, accurately recited the facts, and
reasonably applied the law to those facts. (Id.) For these reasons, and for the reasons set forth in
Defendant’s response to Plaintiff’s objections, the Report and Recommendation is accepted and
adopted in its entirety. (Dkt. Nos. 15, 17.)
Finally, the Court notes that Plaintiff filed a reply to Defendant's responses to her
objections on February 10, 2017. (Dkt. No. 18.) As an initial matter, Plaintiff may not file such a
See, e.g., Cichocki v. Astrue, 534 F. App’x 71, 76 (2d Cir. 2013) (finding that an ALJ was not
required to afford controlling weight to a physician’s opinion that conflicted with his own treatment notes); Burgess
v. Astrue, 537 F.3d 117, 128 (2d Cir. 2008 ) (“Generally, the opinion of the treating physician is not afforded
controlling weight where the treating physician issued opinions that are not consistent with the opinions of other
medical experts.”) (quotation marks and alterations to original quotation omitted).
See Woodmancy v. Colvin, 12-CV-0991, 2013 WL 5567553, at *4 (N.D.N.Y. Oct. 9, 2013)
(holding that the ALJ did not err in failing to make specific accommodations for a plaintiff’s impaired ability to cope
with work stress in the RFC because the ALJ relied on the opinion of a medical expert who opined that the plaintiff
could still perform basic work tasks despite his difficulty handling stressors).
reply as a matter of right, and leave to file the reply was neither sought nor granted in this case.
As a result, the arguments asserted in the reply are not properly before the Court. However, even
if the Court were to consider those arguments, it would find them to be lacking in merit for the
reasons stated herein.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report and Recommendation (Dkt. No. 15) 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: February 15, 2017
Syracuse, New York
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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