Dahl v. Commissioner of Social Security

Filing 24

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' August 1, 2013 19 Report-Recommendation is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Dahl's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 10/1/2013. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
TIMOTHY DAHL,
Plaintiff,

5:12-cv-302
(GLS/ESH)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Law Offices of Kenneth Hiller, PLLC
6000 North Bailey Avenue - Suite 1A
Amherst, NY 14226
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
100 South Clinton Street
Syracuse, NY 13261
Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge

STEVEN R. DOLSON, ESQ.
KENNETH R. HILLER, ESQ.

MARIA P. FRAGASSI
SANTANGELO
SUSAN J. REISS
Special Assistant U.S. Attorneys

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Timothy Dahl challenges defendant Commissioner of Social
Security’s denial of social security disability insurance benefits (DIB),
seeking review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a
Report-Recommendation (R&R) filed August 1, 2013, Magistrate Judge
Earl S. Hines recommended that the Commissioner’s decision be affirmed
and Dahl’s complaint dismissed. (Dkt. No. 19.)1 Pending are Dahl’s
objections to the R&R. (Dkt. No. 20.) For the reasons that follow, the
court adopts the R&R in its entirety.
II. Background2
On March 17, 2010, Dahl filed an application for DIB under the Social
Security Act. (Tr.3 at 80, 150-56.) After his application was denied, Dahl
requested a hearing before an Administrative Law Judge (ALJ), which was
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The Clerk is directed to append the R&R to this decision; familiarity
therewith is presumed.
2

The court incorporates the factual recitations of the parties and
Judge Hines. (Dkt. No. 10 at 2; Dkt. No. 16 at 2-10; R&R at 2-3.)
3

Page references preceded by “Tr.” are to the Administrative
Transcript. (Dkt. No. 8.)
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held on May 17, 2011. (Id. at 50-79, 87-91.) On May 26, 2011, the ALJ
issued a decision denying the requested relief, (id. at 9, 29), which became
the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review, (id. at 1-6).
Dahl commenced the present action by filing a complaint on February
21, 2012, seeking judicial review of the Commissioner’s determination.
(Compl.) After receiving the parties’ briefs, Judge Hines issued an R&R
recommending dismissal of Dahl’s complaint. (See generally R&R.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In those cases where no party has filed an
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objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
IV. Discussion
Dahl purports to object to the R&R on three grounds.4 (Dkt. No. 20,
Attach. 1 at 1-6.) First, he asserts that the court should reject Judge Hines’
recommendation that the ALJ’s residual functional capacity determination
was properly supported by substantial evidence, because the ALJ erred by
failing to take into account Dahl’s use of a cane. (Id. at 1-3.) Second, Dahl
asserts that the court should reject Judge Hines’ recommendation that the

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In his objections, Dahl also “incorporates” by reference the
arguments made in prior submissions. (Dkt. No. 20, Attach. 1 at 1.)
However, “[t]he incorporation by reference of arguments previously
presented to the magistrate judge does not constitute a specific objection
triggering de novo review.” Farid v. Bouey, 554 F. Supp. 2d 301, 306 n.2
(N.D.N.Y. 2008) (citing Edwards v. Fischer, 414 F. Supp. 2d 342, 346-47
(S.D.N.Y. 2006) (“If no objections are filed, or where objections are merely
perfunctory responses, argued in an attempt to engage the district court in
a rehashing of the same arguments set forth in the original petition,
reviewing courts should review a report and recommendation for clear
error.”))

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ALJ’s residual functional capacity determination was properly supported by
substantial evidence, because the ALJ failed to assess the effects of
Dahl’s lack of a sense of balance. (Id. at 3-4.) Lastly, Dahl objects to
Judge Hines’ finding that the ALJ did not err in determining his credibility.
(Id. at 4-6.) The substance of these arguments, however, was previously
raised in Dahl’s brief and considered and rejected by Judge Hines.
(Compare Dkt. No. 10 at 3-8, with R&R at 6-9, 10-12, 12-21.) Dahl’s
“objections,” therefore, are general and do not warrant de novo review.
See Gusky v. Astrue, No. 10-CV-00919MAT, 2013 WL 3776257, at *3
(W.D.N.Y. July 2, 2013) (“[W]hen the objections simply reiterate previous
arguments . . . the Court should review the report for clear error.”);
Almonte, 2006 WL 149049, at *4. The court, having carefully reviewed the
record, finds no clear error in the R&R and accepts and adopts it in its
entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ August 1, 2013
Report-Recommendation (Dkt. No. 19) is ADOPTED in its entirety; and it is
further
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ORDERED that the decision of the Commissioner is AFFIRMED and
Dahl’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
October 1, 2013
Albany, New York

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