Russell v. Colvin

Filing 18

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 15 Report and Recommendations: The Court hereby ORDERS that the Report-Recommendation and Order of Magistrate Judge Christian F. Hummel, filed September 16, 2014, is ADOPTED in i ts entirety for the reasons stated therein;and the Court further ORDERS that the decision denying benefits is AFFIRMED; and the Court further ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED, and the Court further ORDERS th at Defendant's motion for judgment on the pleadings is GRANTED; and the Court further ORDERS that Plaintiff's complaint is DISMISSED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and closethis case. Signed by U.S. District Judge Mae A. D'Agostino on 2/11/15. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BEVERLY L. RUSSELL,
Plaintiff,
vs.

5:13-cv-1030
(MAD/CFH)

CAROLYN W. COLVIN, Commissioner of
Social Security Administration,
Defendant.
____________________________________________
APPEARANCES:
OF COUNSEL:
LEGAL SERVICES OF
CENTRAL NEW YORK, INC.
472 S. Salina Street, Suite 300
Syracuse, New York 13202
Attorneys for Plaintiff

CHRISTOPHER CADIN, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

MONIKA K. CRAWFORD, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION

Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the
Commissioner of Social Security's ("Commissioner") decision to deny her application for
Disability Insurance Benefits ("DIB") and Supplemental Security Income ("SSI"). This matter
was referred to United States Magistrate Judge Christian F. Hummel for a ReportRecommendation and Order pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), familiarity
with which is assumed. Magistrate Judge Hummel recommended that this Court affirm the
Commissioner's decision denying Plaintiff's application for benefits and dismiss the complaint.

See Dkt. No. 15. Presently before the Court are Plaintiff's objections to the ReportRecommendation and Order. See Dkt. No. 16.
II. BACKGROUND
A.

Procedural History
Plaintiff applied for DIB and SSI on April 30, 2012, alleging a disability onset date of

September 27, 2007. See Dkt. No. 9, Administrative Transcript ("T."), at 68, 76, 120-132, 14244. The applications were initially denied on August 6, 2012. T. at 84-89. Plaintiff requested a
hearing, which was held on December 5, 2012 before Administrative Law Judge ("ALJ") Bruce
S. Fein. T. at 35-67, 90-91. The ALJ issued a decision on January 25, 2013, finding that despite
severe impairments – a seizure disorder, depression, and anxiety – Plaintiff was not disabled. T.
at 12. Request for review by the Appeals Council was timely filed and, on June 28, 2013, the
request was denied, rendering the ALJ's decision the Commissioner's final decision. T. at 1.
Plaintiff commenced this action for judicial review of that decision by filing a complaint on
August 22, 2013, see Dkt. No. 1, and both parties moved for judgment on the pleadings. See Dkt.
Nos. 11, 14.
III. DISCUSSION
A.

Standard of Review
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does

not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were
applied, and whether the decision is supported by substantial evidence. See Lamay v. Comm'r of
Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Schaal v. Apfel,
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134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more
than a mere scintilla," and it has been defined as "such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401
(1971) (citations and quotations omitted).
If supported by substantial evidence, the Commissioner's finding must be sustained "even
where substantial evidence may support the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
for that of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec'y of Health and Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part
of a Magistrate Judge's Report and Recommendation to which a party specifically objects.
Failure to timely object to any portion of a Magistrate Judge's Report and Recommendation
operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d
85, 89 (2d Cir. 1993) (quoting Small v. Sec’y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir.
1989)). "To the extent, . . . that [a] party makes only conclusory or general arguments, or simply
reiterates the original arguments, the Court will review the Report strictly for clear error."
Watson v. Astrue, No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22, 2010) (citing,
inter alia, Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008) (observing that
"[r]eviewing courts should review a report and recommendation for clear error where objections
are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing
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of the same arguments set forth in the original petition") (citation and internal quotation marks
omitted)).
B.

Report and Recommendation
In the Report-Recommendation, Magistrate Judge Hummel found that substantial

evidence supported the ALJ's determination that Plaintiff's seizure disorder did not meet the
criteria for an impairment under 20 C.F.R. Part 404, Subpart P, Appendix 1, 11.03, for nonconvulsive epilepsy ("listed impairment"). See Dkt. No. 15. Magistrate Judge Hummel carefully
reviewed the evidence submitted and found it did not establish that Plaintiff had seizures
occurring more frequently than once weekly in spite of at least three months of prescribed
treatment. See Dkt. No. 15.
The Report-Recommendation and Order sets forth that there was substantial evidence to
support that Plaintiff retained sufficient residual functional capacity ("RFC") to perform light
work. See Dkt. No. 15. Magistrate Judge Hummel found the ALJ's determination to give
significant weight to the opinions of Dr. Ganesh and Dr. Nobel, reduced weight to the medical
source statement completed by Dr. Pylman, and minimal weight to the medical source statement
completed by the consultive examiner, Dr. Caldwell, was appropriate. See Dkt. No. 15.
Magistrate Judge Hummel reviewed Plaintiff's contentions that the ALJ's credibility assessment
of Plaintiff and submitted third party statements were not properly evaluated, and he found that
credibility was assessed under the correct legal standard and was supported by substantial
evidence. See Dkt. No. 15.
Magistrate Judge Hummel also found that the RFC was determined under the correct legal
standards and based upon substantial medical evidence that Plaintiff was able to perform light
work and was able to perform past relevant work ("PRW"). See Dkt. No. 15. Finally, Magistrate
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Judge Hummel addressed the ALJ's alternative finding that Plaintiff was able to perform work
which existed in significant numbers in the national economy. Specifically, the Report and
Recommendation reviewed the legal standard for when a vocational expert is required and found
they were correctly applied. See Dkt. No. 15. Magistrate Judge Hummel agreed with the ALJ's
finding that a vocational expert was not necessary because Plaintiff's occupational base was not
significantly eroded by her loss of consciousness. See Dkt. No. 15.
C.

Analysis
Having carefully reviewed Magistrate Judge Hummel's thorough Report-Recommendation

and Order, the parties' submissions, and the applicable law, the Court finds no clear error. Except
as discussed below, the Court finds that Plaintiff's objections to be conclusory or repetitive of the
original arguments made to Magistrate Judge Hummel. Magistrate Judge Hummel's ReportRecommendation and Order contains a careful analysis of the Commissioner's determination to
deny Plaintiff benefits and explains how the challenged determination was based on correct legal
principles and supported by substantial evidence in the record.
1. Plaintiff's objections
Plaintiff raised two new claims in her objections to the Report-Recommendation and
Order that were not raised in her motion to Magistrate Judge Hummel and, accordingly, were not
address in the Report-Recommendation and Order. The Court finds that Plaintiff's newly-raised
claims are rejected because they were not presented to Magistrate Judge Hummel and, therefore,
not timely made. Rule 72(b)(2) of the Federal Rules of Civil Procedure permits a party to file
specific written objections to the proposed findings and recommendations of the Magistrate
Judge, but "Rule 72(b) does not provide that new claims may be raised in objections to a report
and recommendation." See Pierce v. Mance, No. 08 Civ. 4736, 2009 WL 1754904, *1 (S.D.N.Y.
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June 22, 2009). New theories may not be presented with, or in the form of, objections, and these
new theories should be rejected. See Kaminski v. City of Utica, No. 9:10CV0895, 2012 WL
4486071, *1-2 (N.D.N.Y. Sept. 27, 2012) (citing Green v. City of New York, No. 05CV429, 2010
WL 148128, *4 (E.D.N.Y. Jan. 14, 2010)); Calderon v. Wheeler, No. 9:06CV0963, 2009 WL
2252241, *1, n.1 (N.D.N.Y. July 28, 2009); Pierce, 2009 WL 1754904, *1. "If the Court were to
consider formally these untimely contentions, it would unduly undermine the authority of the
Magistrate Judge by allowing litigants the option of waiting until a Report is issued to advance
additional arguments." Abu-Nassar v. Elders Futures, Inc., No. 88 Civ. 7906, 1994 WL 445638,
*4, n.2 (S.D.N.Y. Aug. 17, 1994).
In the alternative, the Court has considered Plaintiff's newly-made claims, and finds as
follows: (1) substantial medical evidence supports the ALJ's determination that Plaintiff's
impairments of obesity, osteoarthritis, and personality disorders were not severe impairments
singly or in combination; and (2) the Residual Functional Capacity ("RFC") determination was
accurate, complete, and supported by substantial evidence.
a. Obesity, osteoarthritis, and personality disorders
For purposes of both DIB and SSI, a person is disabled when he is unable "to engage in
substantial gainful activity by reason of any medically determinable physical or mental
impairment which can be expected to result in death or which has lasted or can be expected to last
for a continuous period of not less than 12 months." 42 U.S.C. §§ 423(d)(1)(A), 1382c(a)(3)(A).
There is a five-step analysis for evaluating disability claims:
First, the [Commissioner] considers whether the claimant is
currently engaged in substantial gainful activity. If he is not, the
[Commissioner] next considers whether the claimant has a "severe
impairment" which significantly limits his physical or mental
ability to do basic work activities. If the claimant suffers such an
impairment, the third inquiry is whether, based solely on medical
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evidence, the claimant has an impairment which is listed in
Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him disabled without
considering vocational factors such as age, education, and work
experience; the [Commissioner] presumes that a claimant who is
afflicted with a "listed" impairment is unable to perform substantial
gainful activity. Assuming the claimant does not have a listed
impairment, the fourth inquiry is whether, despite the claimant's
severe impairment, he has the residual functional capacity to
perform his past work. Finally, if the claimant is unable to perform
his past work, the [Commissioner] then determines whether there is
other work which the claimant could perform.

Berry v. Schweiker, 675 F.2d 464, 467 (2d Cir. 1982); see also Rosa v. Callahan, 168 F.3d 72, 77
(2d Cir. 1999) (citations omitted). The claimant bears the burden of proof on the first four steps,
while the Social Security Administration bears the burden on the last step. Id.
Step two of the five-step sequential evaluation for determining whether a person is
disabled, referred to as the "severity regulation", states:
If you do not have any impairment or combination of impairments
which significantly limits your physical or mental ability to do basic
work activities, we will find that you do not have a severe
impairment and are, therefore, not disabled. We will not consider
your age, education, and work experience.
20 C.F.R. §§ 404.1520(c); 416.920(c), see Bowen v. Yuckert, 482 U.S. 137, 140-141 (1987). The
phrase "basic work activities" are "the abilities and aptitudes necessary to do most jobs" and
include
[p]hysical functions such as walking, standing, sitting, lifting,
pushing, pulling, reaching, carrying, or handling... seeing, hearing,
and speaking . . . [u]nderstanding, carrying out, and remembering
simple instructions . . . [u]se of judgment . . . [r]esponding
appropriately to supervision, co-workers and usual work situations .
. . [d]ealing with changes in a routine work setting.

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20 C.F.R. §§ 404.1521(b), 416.921(b); see Bowen, 482 U.S. at 141. Plaintiff contends that the
ALJ erred when he did not include obesity, osteoarthritis, and personality disorders among her
severe impairments at step two of the disability analysis. See Dkt. No. 16, at 5-8. There is
substantial evidence to support the ALJ's determination that Plaintiff's medical conditions of
obesity, osteoarthritis, and personality disorders did not meet the severity threshold, singly or in
combination.
The ALJ will only consider those impairments that Plaintiff claims to have or those
impairments contained within the evidence submitted. See 20 C.F.R. § 404.1512(a); 416.912(a);
Rockwood v. Astrue, 614 F. Supp. 2d 252, 275-276 (N.D.N.Y. 2009). "Furthermore, at steps two
and three, a claimant bears the burden of showing she is disabled under the Act." Rockwood, 614
F. Supp. 2d at 276. With regard to Plaintiff's claims for personality disorders, Plaintiff has not
previously ever claimed that antisocial personality disorder or borderline personality disorder was
among her impairments, severe or otherwise. T. at 148, 192-195. Further, the Court has
reviewed the evidence submitted by Plaintiff and concluded that there was no evidence of an
antisocial personality disorder or borderline personality disorder within her medical evidence
submitted, including her mental health records and evaluations. The medical records submitted
do not reflect that Plaintiff was ever suspected of suffering from, diagnosed with, or treated for
antisocial personality disorder or borderline personality disorder. T. at 201-573. Since there is no
evidence in the records and Plaintiff has not alleged that she has such an impairment, it was not
error that the ALJ did not specifically address antisocial personality disorder or borderline
personality disorder within his decision. See 20 C.F.R. §§ 404.1512(a), 416.912(a); Yancey v.
Apfel, 145 F.3d 106, 114 (2d Cir. 1998) (finding that the ALJ properly investigated and developed
the record and that there was no need for a consultative examination where there was no evidence
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of a psychiatric or psychological impairment); SSR 96-4P, 1996 WL 374187 (clarifying "that: 1.
A 'symptom' is not a 'medically determinable physical or mental impairment' and no symptom by
itself can establish the existence of such an impairment. 2. In the absence of a showing that there
is a 'medically determinable physical or mental impairment,' an individual must be found not
disabled at step 2 of the sequential evaluation process. No symptom or combination of symptoms
can be the basis for a finding of disability . . .").
Although Plaintiff did not claim disability based upon obesity and osteoarthritis, T. at 148,
192-195, the ALJ extracted from the submitted medical record evidence that obesity and
osteoarthritis were recorded in Plaintiff's medical records. T. at 13. The ALJ reviewed the
evidence and did not find that these conditions had risen to the level of severe impairment, stating
that "[t]he longitudinal medical evidence in the record indicates that [obesity and osteoarthritis]
do not impose limits in the claimant's ability to engage in basic work activities." T. at 13. In
determining the RFC, the ALJ remarked that Plaintiff's obesity was observed, noted, or
commented on by every medical examiner who has offered an opinion about her, and, absent a
qualifying statement to the contrary, the examiners necessarily considered the claimant's obesity.
T. at 18. The ALJ stated that by weighing the examiners' medical opinions, he has also fully
considered Plaintiff's obesity in making his decision. T. at 18-19. Accordingly, the ALJ gave
appropriate consideration to plaintiff's obesity in his decision. See Shorter v. Comm'r of Soc.
Sec., No. 5:12-cv-1502, 2014 WL 1280459, *12 (N.D.N.Y. Mar. 27, 2014) (finding that
examining physicians would have factored the plaintiff's known obesity into their opinion).
Plaintiff asserts that her osteoarthritis causes limiting pain in her chest, back, arms, and
legs. T. at 7. As noted by the ALJ, there was not enough documentation of osteoarthritis to show
a severe impairment. T. at 13. The medical evidence submitted by Plaintiff reveals that she
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underwent physical examinations, including musculoskeletal assessments at hospital visits,
doctors' appointment, and consultation examinations, and there were no clinical signs or
diagnoses that Plaintiff suffered from osteoarthritis, T. at 202, 204, 214, 217, 221, 233, 242, 259,
319, 323, 329, 349, 365, 371, 377, 385, 394, 401, 429, 435, 442, 448, 454, 460, 471, 475-476,
489, 497, 501, 504, 507, 516, 519, 522, 525, 528, 534, 537, 540, 543, 546, 549, 557, except a
brief entry by Dr. Pylman in his medical assessment of ability to do work-related activities. T. at
464. Notably, Dr. Pylman makes no mention of osteoarthritis within his 108 pages of treatment
records. T. at 467-573.
The ALJ outlined Plaintiff's physical capabilities as described by Dr. Ganesh, who opined
that Plaintiff had no limitations with sitting, standing, walking, or the use of her upper
extremities, T. at 17, and Dr. Pylman who opined that Plaintiff was able to walk and stand for
seven hours as well as sit for eight hours in an eight-hour work day. T. at 17. Based upon the
frequent medical examinations that Plaintiff underwent and the absence of any mention of
osteoarthritis together with the physical capabilities outlined by Dr. Ganesh, the Court finds there
is substantial evidence to support the ALJ's determination that osteoarthritis was not a severe
impairment. See Giles v. Astrue, No. 06CV702, 2008 WL 4852947, *6 (W.D.N.Y. Nov. 6, 2008)
(finding that although the plaintiff had a history of osteoarthritis, a treating physician's description
of his physical limitations as unremarkable and another physician's description as having only
mild limitation on heavy lifting, pulling, pushing, and tugging was substantial evidence that the
plaintiff was not physically disabled).
To the extent that Plaintiff also objected that obesity, osteoarthritis, and personality
disorders were not appropriately considered in combination at step three of the analysis, see Dkt.
No. 16 at 8, the Court finds that the ALJ properly considered Plaintiff's impairments in
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combination. The ALJ summarized Plaintiff's medical records, separately addressed Plaintiff's
alleged severe conditions, and expressly stated Plaintiff did not have an impairment or
combination of impairments that meets or medically equals the severity of a listed impairment;
and, therefore, the Court concludes that proper consideration was given to the combined effects of
Plaintiff's impairments. See Martise v. Astrue, 641 F.3d 909, 924 (8th Cir. 2011).
It is also significant that any error in not finding the above-referenced impairments to be
severe, is harmless error. Plaintiff had other determined severe impairments allowing the ALJ to
proceed with the remaining steps of the disability analysis, T. at 12-21, and the ALJ gave
consideration to the limiting effects of Plaintiff's impairments – severe and non-severe – when
determining her RFC. T. at 12-21. The purpose of the severity regulation was to create a
"threshold determination of the claimant's ability to perform basic, generically defined work
functions, without at this stage engaging in the rather more burdensome medical-vocational
analysis required by [42 U.S.C.] § 423(d)(2)(A)[.]" Dixon v. Shalala, 54 F.3d 1019, 1022 (2d Cir.
1995). In Bowen, the Supreme Court upheld this regulation to screen out de minimis claims –
those claims where there are "slight abnormalities that do not significantly limit any 'basic work
activity[.]'" Bowen, 482 U.S. at 158 (O'Connor, J. concurring). Here, Plaintiff's impairments –
albeit not obesity, osteoarthritis, and personality disorders – were found to be severe, and her
claims survived the threshold determination. T. at 12. Plaintiff's claims proceeded and
underwent a medical-vocational analysis, which included consideration of all of Plaintiff's
impairments. T. at 15-20. The ALJ specifically stated that he considered the limiting effects of
Plaintiff's non-severe impairments when determining her RFC. See T. at 13. Under these
circumstances, any error is harmless. See Reices-Colon v. Astrue, 523 Fed. Appx. 796, 798 (2d
Cir. 2013) (holding that any alleged error determining impairments to be non-severe was harmless
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where other severe impairments were identified and the ALJ proceeded with the disability
analysis giving consideration to the non-severe impairments in the subsequent steps) (citations
omitted); Bell v. Colvin, No. 7:12CV1813, 2015 WL 224662, *7 (N.D.N.Y. Jan. 15, 2015).
b. Residual Functional Capacity determination
Plaintiff contends that the RFC determination was incomplete because it did not specify
the frequency of Plaintiff's need to alternate sitting and standing as is required by Program
Operations Manual System DI 25015.020(B)(6), published at SSR 96-9P, 1996 WL 374185. This
argument is unavailing because the ruling relates to individuals that are prevented from
performing past relevant work ("PRW"), and the ruling applies to evaluating an individual's
ability to do less than full range of sedentary work. See SSR 96-4P, 1996 WL 374187. The
Plaintiff was found by the ALJ to be able to perform PRW and that she has the RFC to perform
light work and, accordingly, the ruling is not relevant here.
IV. CONCLUSION
After carefully reviewing the entire record in this matter, the parties' submissions and the
applicable law, and for the above-state reasons, the Court hereby
ORDERS that the Report-Recommendation and Order of Magistrate Judge Christian F.
Hummel, filed September 16, 2014, is ADOPTED in its entirety for the reasons stated therein;
and the Court further
ORDERS that the decision denying benefits is AFFIRMED; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings is DENIED, and the Court
further
ORDERS that Defendant's motion for judgment on the pleadings is GRANTED; and the
Court further
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ORDERS that Plaintiff's complaint is DISMISSED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in Defendant's favor and close
this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on the parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: February 11, 2015
Albany, New York

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