Dukett v. Colvin

Filing 21

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Daniel J. Stewart's March 16, 2016 Report and Recommendation (Dkt. No. 18) is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Dukett's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 8/25/2016. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PATRICIA A. DUKETT,

Plaintiff,

5:14-cv-1435
(GLS/DJS)

v.
CAROLYN W. COLVIN, Acting
Commissioner of Social Security,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Binder, Binder Law Firm
60 East 42nd Street, Suite 520
New York, NY 10165
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
Senior District Judge

CHARLES E. BINDER, ESQ.

JOSHUA L. KERSHNER
Special Assistant U.S. Attorney

MEMORANDUM-DECISION AND ORDER
I. Introduction
Plaintiff Patricia A. Dukett challenges defendant Commissioner of
Social Security’s denial of Supplemental Security Income (SSI), seeking
review under 42 U.S.C. §§ 405(g) and 1383(c)(3).1 (Compl., Dkt. No. 1.)
In a Report and Recommendation (R&R) filed March 16, 2016, Magistrate
Judge Daniel J. Stewart recommended that the Commissioner’s decision
be affirmed. (Dkt. No. 18.) Pending are Dukett’s objections to the R&R.
(Dkt. No. 19.) For the reasons that follow, the court adopts the R&R in its
entirety.
II. Background2
On August 28, 2012, Dukett filed an application for SSI under the
Social Security Act (“the Act”). (Tr.3 at 58, 115-20.) After her application
was denied, Dukett requested a hearing before an Administrative Law
Judge (ALJ), which was held on February 27, 2014. (Id. at 28-46, 59-64,

1

42 U.S.C. § 1383(c)(3) renders section 405(g) of Title 42 applicable to judicial review of SSI

claims.
2

The court incorporates the factual recitations of the parties and Judge Stewart. (See generally
Dkt. Nos. 9, 17, 18.)
3

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 7.)

67-69.) On May 16, 2014, 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 1-4, 12-27.)
Dukett commenced the present action by filing a complaint on
November 26, 2014, seeking judicial review of the Commissioner’s
determination. (Compl.) After receiving the parties’ briefs, Judge Stewart
issued an R&R recommending the Commissioner’s decision be affirmed.
(See generally Dkt. No. 18.)
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 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
Dukett purports to object to the R&R on six grounds, only one of
which warrants de novo review. That specific objection pertained to Judge
Stewart’s consideration of the weight assigned by the ALJ to certain
medical evidence, and, in particular, his alleged reliance on grounds
different from that considered by the ALJ. (Dkt. No. 19 at 2-3.) Because
the substance of Dukett’s other objections were either previously raised,
considered, and rejected, (compare Dkt. No. 9 at 16-27, with Dkt. No. 18 at
6-15), or are raised for the first time now, (Dkt. No. 19 at 6), they are
entitled to review for only clear error in the case of the former, or no review
at all in the case of the latter. See Almonte, 2006 WL 149049 at *4; Tatta
v. Wright, 616 F. Supp. 2d 308, 313 (N.D.N.Y. 2007).
Turning to Dukett’s only specific objection, she relies on a flawed
factual premise. (Dk. No. 19 at 1-3.) According to Dukett, the ALJ never
identified inconsistencies in his decision that were relevant to the weight
given to Dukett’s treating psychiatrist’s opinion and, instead, Judge Stewart

made new factual findings of such inconsistencies. (Id. at 2.) However,
the ALJ does identify general inconsistencies in the treating psychiatrist’s
opinion and the other evidence of record. (Tr. at 20.) Contrary to Dukett’s
argument that Judge Stewart inappropriately made new findings of fact,
Judge Stewart was only more specific in pinpointing the inconsistencies
(Dk. No. 18 at 12-13.) Nevertheless, Dukett’s objection that the treating
psychiatrist’s opinion was improperly weighed must be reviewed de novo.
Generally, great deference is given to the opinion of a treating
physician provided that it is well-supported by medical and laboratory
diagnostic techniques and is not inconsistent with other substantial
evidence in the record. See 20 C.F.R. § 404.1527(c)(2). Opinions of
treating physicians are not controlling where the opinion is inconsistent
with other substantial evidence in the record, including opinions of other
medical experts. Vieno v. Barnhart, 312 F.3d 578,588 (2d Cir 2002).
When an ALJ discounts the opinion of a treating physician he or she must
provide “good reasons” by way of an explanation as to why the opinion was
discounted. Schaal v. Apfel, 134 F.3d 496, 505 (2d Cir. 1998). The ALJ is
to consider the following factors when discounting the treating physician’s
opinion: (1) the length of the treatment relationship and frequency of
examinations, (2) the nature and extent of the treatment relationship, (3)

the amount, nature, and credibility of the medical evidence accompanied
with the opinion, (4) consistency of the opinion, (5) the specialization of the
physician, and (6) any other factors relevant to the opinion. 20 C.F.R. §
404.1527 (c)(2) - (c)(6).
Here, the treating psychiatrist’s opinion was widely contradicted by
evidence in the record, including other medical experts’ opinions and
Dukett’s own testimony and statements. Specifically, Dukett’s treating
psychiatrist reported that Dukett is moderately limited in her ability to
understand and remember detailed instructions, but Dukett indicated in a
“Function Report” completed as part of her examination for disability
determination that she is able to follow both written and spoken
instructions. (Tr. at 163, 515.) Further contradictions are indicated by the
treating psychiatrist’s report noting Dukett is moderately impaired in her
ability to accept instructions and respond appropriately to criticism from
supervisors, while Dukett identified that, while she has not dealt with
supervisors in “some time now,” she has no difficultly getting along with
them. (Id. at 163, 516). The ALJ properly noted, in analyzing the factors
relevant to the appropriate weight to afford to a treating physician’s
opinion, that Dukett’s relationship with her psychiatrist was limited, (Tr. at
20); indeed, the relationship consisted of only medication management

with ten to fifteen minute visits held at three month intervals.4 (Tr. at 202 209, 332, 398-401, 512-19.) Additionally, the other medical opinions in the
record contradict the extensive limitations outlined in the treating
psychiatrist’s opinions. (Compare Tr. at 268-72, 279-80, with Tr. at 51219.) Accordingly, for the reasons articulated by Judge Stewart, the court
finds that the decision of the ALJ is free from legal error and supported by
substantial evidence.
Having addressed Dukett’s specific objection de novo, and otherwise
finding no clear error in the R&R, the court accepts and adopts Judge
Stewart’s R&R in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Daniel J. Stewart’s March 16, 2016
Report and Recommendation (Dkt. No. 18) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Dukett’s complaint (Dkt. No. 1) is DISMISSED; and it is further
4

Notably, the Psychiatric/Psychological Impairment Questionnaire, completed by the treating
psychiatrist, indicated that Dukett had therapy on a bi-weekly basis. (Tr. at 512.) While this is not
entirely accurate because the record indicates Dukett only saw a Social Worker for therapy three times
Id. at 347-50.), it is beyond dispute that Dukett did not undergo treatment with the treating psychiatrist
for the therapy in question. (Id. at 202, 333-332, 347-50, 398-401.)

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.
August 25, 2016
Albany, New York