Lamica v. Commissioner of Social Security

Filing 28

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Andrew T. Baxter's January 8, 2016 24 Report and Recommendation is ADOPTED. That the decision of the Commissioner is AFFIRMED and Lamica's complaint (Dkt. No. 1) is DISMISSED. Signed by Senior Judge Gary L. Sharpe on 3/9/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
RANDY BRUCE LAMICA,
Plaintiff,

5:14-cv-1284
(GLS/ATB)

v.
COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Stanley Law Offices, LLP
215 Burnet Avenue
Syracuse, NY 13203
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
Gary L. Sharpe
Senior District Judge

JAYA A. SHURTLIFF, ESQ.

SANDRA M. GROSSFELD
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Randy Bruce Lamica challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report and
Recommendation (R&R) filed January 8, 2016, Magistrate Andrew T.
Baxter recommended that the Commissioner’s decision be affirmed. (Dkt.
No. 24.) Pending are Lamica’s objections to the R&R. (Dkt. No. 25.) For
the reasons that follow, the court adopts the R&R, affirms the
Commissioner’s decision, and dismisses the complaint.
II. Background1
On June 22, 2011, Lamica filed an application for DIB under the
Social Security Act. (Tr.2 at 44, 157-65.)3 After his application was denied,
Lamica requested a hearing before an Administrative Law Judge (ALJ),
which was held on October 15, 2012. (Id. at 24-43, 51, 72, 96.) On

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The court incorporates the factual recitations of the parties and Judge Baxter. (See
generally Dkt. Nos. 16, 23, 24.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 13.)

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While Lamica also applied for Supplemental Security Income benefits, (Tr. at 166-73),
he did not appeal from the denial of those benefits.

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January 14, 2013, 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. (Id. at 13, 5-22.)
Lamica commenced the present action by filing a complaint on
October 21, 2014, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Baxter
issued an R&R recommending that the Commissioner’s decision be
affirmed. (See generally Dkt. No. 24.)
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,
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*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
Lamica’s objections are fourfold. (Dkt. No. 26.) He argues that: (1)
the ALJ should have concluded that he met Listing 1.05(B); (2) the residual
functional capacity (RFC) finding posited by the ALJ was legally erroneous
and not supported by substantial evidence; (3) the ALJ improperly
determined his credibility; and (4) the ALJ should have consulted with a
vocational expert (VE). (Id. at 1-9.) These arguments, by and large, fail to
point to any specific deficiencies in the R&R. Instead, they seek to rehash
arguments presented to and rejected by Judge Baxter. As the
Commissioner points out, Lamica also makes some arguments for the first
time in his objections, (Dkt. No. 27 at 2), which are not properly raised at
this time. See Smith v. Hulihan, No. 11 CV 2948(HB), 2012 WL 4928904,
at *1 (S.D.N.Y. Oct. 17, 2012) (“[N]ew arguments and factual assertions
cannot properly be raised for the first time in objections to the R & R, and
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indeed may not be deemed objections at all.”).
Bearing the foregoing in mind, Lamica makes the following specific
objections: (1) in reviewing the ALJ’s RFC determination, Judge Baxter
overlooked contrary evidence, which includes the opinion of prosetheticist
Joseph Lizotte regarding Lamica’s ability to sit/stand/walk, (Tr. at 391-92),
state agency review Dr. Bejamin Cortijo’s acknowledgment of potential for
issues related to Lamica’s amputation, (id. at 393), Lamica’s own testimony
about his limitations, (id. at 30), and consultative examiner Dr. Kalyani
Ganesh’s opinion that Lamica had some limitations in his ability to
effectively ambulate, (id. at 437); and (2) in reviewing the ALJ’s credibility
determination, Judge Baxter improperly “f[ou]nd [a] justification for the
ALJ.” (Dkt. No. 26 at 6, 8.) Lamica’s other contentions fall into the
category of general objections and warrant review for clear error only.
A.

RFC Determination
While specific objections typically trigger de novo review, Lamica’s

first specific objection is fundamentally flawed and, thus, requires only a
brief comment. The factual premise from which Lamica begins — that
Judge Baxter ignored contrary evidence in reviewing the ALJ’s RFC
determination (id. at 6) — is incorrect. Indeed, the R&R specifically
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accounts for all of the so-called contrary evidence; most of it in significant
detail. (See generally Dkt. No. 24.) In addition, Lamica overlooks the
simple premise that “whether there is substantial evidence supporting the
[claimant]’s view is not the question[,] rather, [the court] must decide
whether substantial evidence supports the ALJ’s decision.” Bonet ex rel.
T.B. v. Colvin, 523 F. App’x 58, 59 (2d. Cir. 2013). For these reasons,
Lamica’s specific objection regarding the RFC determination is flawed and
entitles him to no relief.
B.

Credibility
Lamica’s other “specific” objection fares no better. Viewed through

the proper objection-to-an-R&R lens, Lamica contends that the R&R must
be rejected on the issue of credibility because Judge Baxter improperly
manufactured a rationale in support of the ALJ’s finding. (Dkt. No. 26 at 8.)
This argument is similarly based upon a defective premise. The R&R
addresses each of the arguments raised by Lamica in his brief, (compare
Dkt. No. 16 at 14-16, with Dkt. No. 24 at 19-23), and acknowledges that
the first reason given — having to do with why Lamica’s prior employment
ended and the timing of his leg “issue,” (Tr. at 14) — for an adverse
credibility finding by the ALJ is not competent to support it, (Dkt. No. 24 at
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20, 23). Finding any error flowing from the first reason harmless, Judge
Baxter then considered the other bases proffered by the ALJ, and found
them both the result of an application of the appropriate legal standards
and supported by substantial evidence. (Id. at 20-23.) Lamica’s assertion
that the R&R “provides additional ‘examples’ of daily activities to those
provided by the ALJ,” (Dkt. No. 26 at 8), is simply mistaken. In any event,
and for exactly the reasons articulated by Judge Baxter, the ALJ’s
credibility finding, though a bit sparse, (Tr. at 14), is supported by
substantial evidence and the result of a faithful application of the governing
legal standards.
C.

Remaining Findings and Conclusions
Having addressed Lamica’s “specific” objections as set forth above,

and otherwise finding no clear error in the R&R, the court accepts and
adopts Judge Baxter’s R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Andrew T. Baxter’s January 8,
2016 Report and Recommendation (Dkt. No. 24) is ADOPTED and it is
further
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ORDERED that the decision of the Commissioner is AFFIRMED and
Lamica’s complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case and provide a copy of this
Memorandum-Decision and Order to the parties.
IT IS SO ORDERED.
March 9, 2016
Albany, New York

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