Mauzy v. Astrue

Filing 19

MEMORANDUM-DECISION and ORDER - That Maigstrate Judge Earl S. Hines' September 30, 2013 17 Report and Recommendation is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Mauzy's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 2/13/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
MONTE MAUZY,
Plaintiff,

5:12-cv-866
(GLS/ESH)

v.
CAROLYN W. COLVIN, Acting
Commission of Social Security,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Olinsky Law Group
300 S. State Street
Suite 420
Syracuse, NY 13202
Legal Aid Society of Northeast New
York
55 Colvin Avenue
Albany, NY 12206
FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
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

HOWARD D. OLINSKY, ESQ.

MICHAEL J. TELFER, ESQ.

REBECCA H. ESTELLE
Special Assistant U.S.
Attorney

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Monte Mauzy challenges defendant Commissioner of Social
Security’s denial of Disability Insurance Benefits (DIB) and Supplemental
Security Income (SSI), seeking review under 42 U.S.C. §§ 405(g) and
1383(c)(3). (Compl., Dkt. No. 1.) In a Report and Recommendation (R&R)
filed September 30, 2013, Magistrate Judge Earl S. Hines recommended
that the Commissioner’s decision be affirmed. (Dkt. No. 17.) Pending are
Mauzy’s objections to the R&R. (Dkt. No. 18.) For the reasons that follow,
the court adopts the R&R in its entirety.
II. Background1
On October 16, 2009, Mauzy filed applications for DIB and SSI under
the Social Security Act. (Tr.2 at 71-72, 165-69, Dkt. No. 17 at 2.) After his
applications were denied, Mauzy requested a hearing before an

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The court incorporates the factual recitations of the parties and Judge Hines. (See
generally Dkt. Nos. 12, 15, 17; see also Admin. Tr., Dkt. No. 9.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 9.)

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Administrative Law Judge (ALJ), which was held on August 2, 2011. (Tr. at
42-70, 91-101.) On September 16, 2011, the ALJ issued a decision
denying the requested benefits, which became the Commissioner’s final
determination upon the Social Security Administration Appeals Council’s
denial of review. (Tr. at 1-5, 74-89.)
Mauzy commenced the present action by filing a complaint on May
25, 2012, seeking judicial review of the Commissioner’s determination.
(Compl.) After receiving the parties’ briefs, Judge Hines issued an R&R
recommending that the Commissioner’s decision be affirmed. (See
generally Dkt. No. 17.)
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.
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N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
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
Mauzy raises two specific objections to the R&R regarding
development of the record and credibility, which the court will review de
novo.3 (Dkt. No. 18 at 1-4.) The remainder of the R&R will be reviewed for
clear error.
A.

Development of the Record
First, Mauzy objects to Judge Hines’ conclusion that the ALJ did not

err by failing to obtain additional treatment records from treating physicians
Catherine Keating and Jody Stackman. (Dkt. No. 18 at 1-3.) According to

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Mauzy purports to object to the R&R on the three grounds. (Dkt. No. 18 at 1-5.)
Mauzy’s third objection is that the step five determination was unsupported by substantial
evidence “due to the ALJ’s errors in developing the record and evaluating [Mauzy’s] credibility,”
as well as the ALJ’s failure to include all of the limitations opined by his treating physician. (Id.
at 4-5.) The substance of this argument, however, was previously raised in Mauzy’s brief and
considered and rejected by Judge Hines. (Dkt. No. 12 at 22-23; Dkt. No. 17 at 25-28.) This
“objection,” therefore, is general and does not warrant de novo review. See Almonte, 2006
WL 149049 at *4.

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Mauzy, Judge Hines incorrectly found that the ALJ satisfied his duty to
develop the record by leaving the record open for six weeks after the
administrative hearing, and relying on Mauzy’s counsel to obtain additional
medical documentation. (Id. at 2-3; Dkt. No. 17 at 11-12.) However, as
Judge Hines correctly observed, the ALJ’s duty to develop the record is not
without limit. See Guile v. Barnhart, No. 5:07-cv-259, 2010 WL 2516586,
at *3 (N.D.N.Y. June 14, 2010). Indeed, an ALJ may, in certain
circumstances, satisfy the duty to develop the record by asking the
claimant’s council to obtain additional medical documentation. (Dkt. No. 17
at 11-12); see Dutcher v Astrue, No. 09-CV-1161, 2011 WL 1097860, at
*5-6 (N.D.N.Y. Mar. 7, 2011).
Here, at the hearing, the ALJ gave Mauzy’s counsel an additional
week to obtain and submit the treatment records of Drs. Keating and
Stackman, with the instruction to request more time if needed. (Tr. at 4647, 59-60, 69.) Subsequently, Mauzy’s counsel submitted treatment
records of Dr. Stackman from November 2010 and January 2011. (Id. at
13, 448-56.)4 Mauzy’s council also submitted additional medical source

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In November 2010, in order to rule out “seizure activity,” Dr. Stackman performed an
electroencephalography on Mauzy, which was within normal limits. (Tr. at 454.) Thereafter,
Dr. Stackman completed an electrodiagnostic exam of Mauzy, which indicated “mild median

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statements completed by Dr. Keating, indicating that Mauzy’s physical and
mental limitations would remain if he stopped using drugs and/or alcohol,
and that his functional limitations—which Dr. Keating had provided in a
previous medical source statement5 —existed since at least March 15,
2006, Mauzy’s alleged onset date. (Id. at 12, 445-47, 457-58.)
Despite these post-hearing submissions, Mauzy’s counsel requested
further time to secure additional treatment records from Dr. Keating, and,
after this additional time period had lapsed, requested the ALJ’s help
securing such additional records from Dr. Keating. (Id. at 10, 11.)
However, as Judge Hines noted, the record before the court does not
reflect that the ALJ formally acted on Mauzy’s request. (Dkt. No. 17 at 9.)
Nonetheless, as the ALJ afforded Mauzy’s counsel additional time to
obtain medical evidence, considered the additional evidence submitted

nerve entrapment at the left wrist, and even less so at the right wrist.” (Id. at 450.) No
evidence of a more generalized polyneuropathy was seen, however, the study suggested
bilateral ulnar nerve entrapments at the elbows, and “a possible right peroneal neuropathy.”
(Id.)
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In July 2011, Dr. Keating opined that Mauzy required a job that permits shifting
positions at will, and would need to take very frequent breaks during a work day. (Tr. at 445.)
Further, Dr, Keating reported that Mauzy can never twist, bend, crouch, or climb, and rarely
grasp, turn, or twist objects with his hands, perform fine finger manipulations, or reach with his
arms. (Id. at 446.) Additionally, Mauzy would be off task for more than twenty percent of the
day and would miss more than four days of work per month. (Id. at 447.) According to Dr.
Keating, these functional limitations were caused by Mauzy’s “[l]ow back pain, [b]ilateral carpal
tunnel, [and] ETOH abuse.” (Id. at 445.)

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during this period, Mauzy’s counsel did not request assistance securing
additional evidence from Dr. Keating until this additional time lapsed, and
the record before the ALJ included clinical and laboratory findings with
respect to both Mauzy’s low back pain and carpal tunnel, the court cannot
say that the ALJ did not properly discharge his duty to develop the record.
(Tr. at 301, 362, 365-69, 378-79, 387, 394-406, 450.) Furthermore, the
ALJ legitimately rejected Dr. Keating’s assessments because they were
inconsistent with the objective evidence of record. (Id. at 83.) Mauzy’s
suggestion that the ALJ relied on the fact “that there was no medical
evidence to support the assertions contained within [Dr. Keating’s] medical
source statement” is misleading. (Dkt. No. 18 at 2.) In fact, in discounting
Dr. Keating’s opinion, the ALJ relied, in part, on the lack of medical
evidence between December 2006—nine months after Mauzy’s alleged
onset date—and 2009—when Mauzy began treating with Dr. Keating. (Tr.
at 83, 301, 458.)
B.

Credibility Determination
Mauzy also objects to Judge Hines’ recommendation that the ALJ’s

credibility determination was supported by substantial evidence. (Dkt. No.
18 at 3-4.) Mauzy contends that the ALJ selectively chose evidence in the
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record that supports his conclusion when he “failed to discuss much of
[Mauzy’s] testimony regarding his daily activities.” (Id.) The court concurs
with Judge Hines that Mauzy’s argument in this respect is meritless. (Dkt.
No. 17 at 24.)
As Judge Hines pointed out, “an ALJ is not required to discuss every
piece of evidence submitted.” Brault v. Soc. Sec. Admin., Comm’r, 683
F.3d 443, 448 (2d. Cir. 2012); (Dkt. No. 17 at 24.) Further, “[f]ailure to
expressly consider every factor set forth in the regulations is not grounds
for remand where the reasons for the ALJ’s determination of credibility are
sufficiently specific to conclude that he considered the entire evidentiary
record.” Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6
(W.D.N.Y. June 25, 2012) (internal quotation marks and citation omitted);
see Oliphant v. Astrue, No. 11-CV-2431, 2012 WL 3541820, at *22
(E.D.N.Y. Aug. 14, 2012). As noted by Judge Hines, the ALJ properly
considered Mauzy’s activities of daily living, testimony regarding his
functional abilities, the effectiveness of his treatment, including medication,
the objective medical evidence, and the opinion evidence. (Tr. at 80-83;
Dkt. No. 17 at 24-25.) Thus, as the ALJ clearly considered Mauzy’s
complaints, and sufficiently explained his credibility determination, which is
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supported by the record, the court finds no error. (Tr. at 81-83.)
C.

Remaining Findings and Conclusions
Having addressed Mauzy’s specific objections de novo, and

otherwise finding no clear error in the R&R, the court accepts and adopts
Judge Hines’ R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ September 30, 2013
Report and Recommendation (Dkt. No. 17) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Mauzy’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.
February 13, 2014
Albany, New York

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