Carthron-Kelly v. Commissioner of Social Security

Filing 34

DECISION AND ORDER accepting and adopting # 31 Magistrate Judge Carter's Report and Recommendation in its entirety. The Commissioner's determination is affirmed, and Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 1/9/18. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
LORA CARTHRON-KELLY,
Plaintiff,
5:15-CV-0242
(GTS/WBC)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

SEVERANCE, BURKO, SPALTER & MASONE, PC
Counsel for Plaintiff
16 Court Street, Suite 2400
Brooklyn, New York 11241

LOUIS R. BURKO, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

DAVID B. MYERS, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this action by Lora Carthron-Kelly (“Plaintiff”) against the
Commissioner of Social Security (“Defendant” or “Commissioner”) seeking Social Security
pursuant to 42 U.S.C. § 405(g) benefits, are (1) the Report-Recommendation of United States
Magistrate Judge William B. Mitchell Carter recommending that the Commissioner’s decision
be affirmed and Plaintiff’s Complaint be dismissed, (2) Plaintiff’s Objection to the ReportRecommendation, and (3) Defendant’s response to Plaintiff’s Objection. (Dkt. Nos. 31, 32, 33.)
For the reasons set forth below, the Report-Recommendation is accepted and adopted in its
entirety and Plaintiff’s Complaint is dismissed.

I.

RELEVANT BACKGROUND
A.

Relevant Procedural History

On April 20, 2011, Plaintiff filed an application for Supplemental Social Security Income
(“SSI”) alleging a disability consisting of neck and back impairments, and a disability onset date
of May 9, 2009. (Administrative Transcript [“T.”] at T. 189, 667.) Plaintiff’s application was
initially denied, after which she requested a hearing before an Administrative Law Judge
(“ALJ”). On January 29, 2013, and June 13, 2013, a hearing was held before ALJ Edward I.
Pitts. (T. at 79-123, 124-88.) On July 31, 2013, the ALJ issued a decision finding Plaintiff not
disabled. (T. at 57-78.) On January 6, 2015, the Appeals Council denied Plaintiff’s request for
further review, rendering the ALJ’s decision the final decision of the Commissioner. (T. at 1-7.)
On March 3, 2015, Plaintiff filed this action in federal court. (Dkt. No. 1.)
B.

Summary of the ALJ’s Decision

Generally, in his decision, the ALJ made the following five findings of fact and
conclusions of law: (1) Plaintiff has not engaged in substantial gainful activity since April 20,
2011; (2) Plaintiff has the severe impairments of degenerative disc disease of the cervical and
lumbar spine as well as depression and Post Traumatic Stress Disorder (“PTSD”); (3) Plaintiff
does not have an impairment that meets or medically equals one of the listed impairments
located in 20 C.F.R. Part 404, Subpart P, Appendix 1; (4) Plaintiff has the residual functioning
capacity (“RFC”) to perform light work, with additional non-exertional limitations; and (5)
Plaintiff was incapable of performing her past relevant work (in nursing and housekeeping) but
that jobs exist in significant numbers in the national economy that Plaintiff could perform. (T. at
68-71.)

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C.

The Parties’ Cross-Motions for Judgment on the Pleadings
1.

Plaintiff’s Motion for Judgment on the Pleadings

Generally, in Plaintiff’s brief in support of her motion for judgment on the pleadings, she
asserts the following four arguments: (1) that the Appeals Council erred by failing to remand the
matter to the ALJ for consideration of the newly submitted evidence (including an operative
report); (2) that the ALJ erred in finding Plaintiff could perform light work because the finding
was not based on substantial evidence; (3) that the ALJ erred by failing to incorporate relevant
mental limitations (from consultative examiner Jeanne Shapiro, Ph.D.) into hypothetical
questions or the RFC determination; and (4) that the ALJ failed to satisfy his burden of
establishing that there was other work in the national economy Plaintiff could perform. (Dkt.
No. 23, at Points I-IV.)
2.

Defendant’s Motion for Judgment on the Pleadings

Generally, in his her brief in support of her motion for judgment on the pleadings, she
asserts the following three arguments: (1) that the Appeals Council did not err in declining to
remand the matter to the ALJ for consideration of the newly submitted evidence because (a) the
operative report was not a medical opinion that shed any light on Plaintiff’s condition, (b) the
report was cumulative of evidence of Plaintiff’s back impairments (which were already in the
record), and (c) the operation was performed after the end of the relevant period and thus would
not have been relevant to the period at issue; (2) that substantial evidence supports the ALJ’s
physical and mental RFC findings; and (3) that substantial evidence supports the ALJ’s Step
Five finding that there were jobs in significant numbers in the national economy that Plaintiff
could perform. (Dkt. No. 26, at Points IV-VI.)

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Generally, in her response to Defendant’s motion, Plaintiff asserts the following three
arguments: (1) that the Appeals Council erred in failing to remand the matter because the
operative report contained new and material evidence that may have made a difference in the
ALJ’s RFC finding (for example, the operative report noted Plaintiff had cervical myelopathy
“for quite some time” contradicting the ALJ’s conclusion that the opinion of Plaintiff’s
orthopedic surgeon Nikhil Thakur, M.D., was temporary and unsupported); (2) that the ALJ’s
RFC assessments were not supported by substantial evidence because (a) Defendant’s arguments
regarding Plaintiff’s citations to relevant case law fail to address the issues at hand, (b) the ALJ’s
RFC assessments were based on the outdated opinions of Shakra Junejos, M.D., and Stanley
Rabinowitz, M.D., which were rendered before Plaintiff’s cervical spine MRI became part of the
record, (c) the ALJ failed to provide an explanation for the modifications made to the ostensibly
credited limitations noted by Dr. Shapiro; and (3) that the ALJ’s Step Five finding was improper
because the vocational expert’s testimony as a whole admittedly included jobs spanning multiple
exertional levels (which she did not divide out by exertional level). (Dkt. No. 29, at Points I-III.)
D.

Magistrate Judge Carter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Carter rendered the
following four findings of fact and conclusions of law: (1) the Appeals Council did not err in
failing to remand based on the newly admitted operative report because, inter alia, (a) the
operative report was not a medical opinion that shed any light on Plaintiff’s condition, (b) in any
event, a review of the operative report does not show any new evidence that is sufficiently
contrary to existing medical evidence in the record to alter the ALJ’s RFC finding, and (c) Dr.
Junejo took into consideration Plaintiff’s cervical spine impairments in formulating her opinion;

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(2) the ALJ’s physical RFC finding was supported by substantial evidence because, inter alia,
that finding properly relied on the medical source opinion of Dr. Junejo, which were not shown
to be contrary to the additional records submitted; (3) the ALJ’s mental RFC finding was
supported by substantial evidence because it was consistent with (a) the assessment of Jeanne
Shapiro, Ph.D. (that Plaintiff has mild to moderate limitations in her ability to interact with
others, which does not preclude the ability to perform unskilled work), and (b) Plaintiff’s
testimony that she was capable of interacting with others and use a computer program (Skype) to
communicate with family; and (4) the ALJ’s Step Five finding was supported by substantial
evidence because (a) the ALJ properly relied on the vocational expert’s testimony and (b) in any
event, any error made by the ALJ in relying on the vocational expert’s testimony was harmless
given that the ALJ found, in the alternative, that Plaintiff was “not disabled” within the
framework of the medical-vocational rules (i.e., “the Grids”). (Dkt. No. 31, at Part IV.)
E.

Plaintiff’s Objections to the Report-Recommendation

Generally, in her Objections to the Report-Recommendation, Plaintiff asserts the
following four arguments: (1) Magistrate Judge Carter erred in concluding that the Appeals
Council did not err when it refused to remand the matter to the ALJ for consideration of the
newly submitted evidence of the operative report, because the operative report noted Plaintiff
had cervical myelopathy “for quite some time” contradicting the ALJ’s conclusion that the
opinion of Dr. Thakur was temporary; (2) Magistrate Judge Carter erred in concluding that the
ALJ’s physical RFC determination was supported by substantial evidence because the opinions
of Drs. Junejo and Rabinowitz were in fact shown to be contrary to the additional records
submitted; (3) the Magistrate Judge erred in finding that the ALJ’s mental RFC determination

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was supported by substantial evidence because (a) the ALJ failed to provide an explanation for
the modifications made to the ostensibly credited limitations noted by Dr. Shapiro, and (b) the
ALJ failed to incorporate relevant mental limitations from Dr. Shapiro, Ph.D. into hypothetical
questions presented to the vocational expert; and (4) Magistrate Judge Carter erred in concluding
that the ALJ’s Step Five finding was supported by substantial evidence because Magistrate
Judge Carter’s reasoning (that the ALJ found, in the alternative, that Plaintiff was “not disabled”
within the framework of Grids”) is contrary to the ALJ’s Step Two finding (that Plaintiff’s
severe impairments included depression with PTSD and resulted in moderate limitations in
social functioning with mild limitations in activities of daily living and concentration,
persistence or pace). (Dkt. No. 32, at Parts I-IV.)
F.

Defendant’s Response to Plaintiff’s Objections

Generally, in her response to Plaintiff’s Objections, Defendant asserts the following five
arguments: (1) as a threshold matter, to the extent that Plaintiff has merely restated arguments
previously set forth in her motion for judgment on the pleadings, the “challenged” portions of the
Report-Recommendation warrant only a clear-error review (and, to the extent that Plaintiff
asserts entirely new arguments that she could have submitted to Magistrate Judge Carter, those
arguments should not be considered); (2) in any event, Plaintiff’s continuing argument that the
Appeals Council erred in failing to remand the matter based on a single operative report is
meritless because (a) Plaintiff relies on a single remark within the operative report (i.e., that
Plaintiff “has had cervical myelopathy for quite some time”) which is of little relevance given
that the ALJ assessed a severe cervical spine impairment, and (b) the relevant consideration is
assessing disability under the Act is not a diagnosis but the functional limitations that result

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therefrom; (3) Plaintiff is incorrect that Magistrate Judge Carter erred in concluding that the
ALJ’s physical RFC determination was supported by substantial evidence because, inter alia, (a)
Plaintiff’s argument loses sight of the fact that it was her burden to prove her functional
limitations, not the Commissioner’s burden to disprove her allegations, (b) the evidence received
after Dr. Junejo’s review did not contain any evidence of additional limitations, and (c)
Plaintiff’s argument ignores Magistrate Judge Carter’s observation that Dr. Junejo expressly
referenced physical examination findings regarding Plaintiff’s cervical spine in his narrative
review of the evidence; (4) Plaintiff is incorrect that Magistrate Judge Carter erred in concluding
that the ALJ’s mental RFC determination was supported by substantial evidence because, inter
alia, (a) Plaintiff’s argument misses the larger point that the ALJ was under no obligation to
issue an RFC finding that tracked Dr. Shapiro’s opinion verbatim, (b) moderate limitations in
work-related functioning do not significantly limit, and thus prevent, a plaintiff from performing
unskilled work, and (c) the ALJ was expressly permitted to consider Plaintiff’s daily activities in
assessing her mental RFC; and (5) Magistrate Judge Carter committed no error with regard to the
ALJ’s Step Five finding because (a) Plaintiff’s argument conflates a Step Two finding with a
Step Five finding (which are entirely different findings), and (b) the ALJ’s hypothetical question
to the vocational expert matches his RFC finding. (Dkt. No. 33, at Parts II-III.)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Magistrate Judge Carter’s Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection

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must, with particularity, “identify [1] the portions of the proposed findings, recommendations, or
report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R. 72.1(c).1
When performing such a de novo review, “[t]he judge may . . . receive further evidence. . . .” 28
U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary
material that could have been, but was not, presented to the magistrate judge in the first
instance.2 Similarly, a district court will ordinarily refuse to consider argument that could have
been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ.
of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established
law that a district judge will not consider new arguments raised in objections to a magistrate
judge's report and recommendation that could have been raised before the magistrate but were

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002)
(“Although Mario filed objections to the magistrate's report and recommendation, the statement
with respect to his Title VII claim was not specific enough to preserve this claim for review. The
only reference made to the Title VII claim was one sentence on the last page of his objections,
where he stated that it was error to deny his motion on the Title VII claim ‘[f]or the reasons set
forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which
he objected and why, and unsupported by legal authority, was not sufficient to preserve the Title
VII claim.”).
2

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In
objecting to a magistrate's report before the district court, a party has no right to present further
testimony when it offers no justification for not offering the testimony at the hearing before the
magistrate.”) [internal quotation marks and citations omitted]; Pan Am. World Airways, Inc. v.
Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990) (finding that district court did not
abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf.
U. S. v. Raddatz, 447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to
require the district court to conduct a second hearing whenever either party objected to the
magistrate's credibility findings would largely frustrate the plain objective of Congress to
alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P. 72(b),
Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a
secondary evidentiary hearing is required.”).
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not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp. 2d 311,
312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not
consider new arguments raised in objections to a magistrate judge's report and recommendation
that could have been raised before the magistrate but were not.”) (internal quotation marks
omitted).
When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. When performing such a “clear error”

3

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers
or arguments does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or
Local Civil Rule 72.3(a)(3).”); Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F.
Supp. 380, 382 (W.D.N.Y. 1992) (explaining that court need not consider objections that merely
constitute a "rehashing" of the same arguments and positions taken in original papers submitted
to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue,
07-CV-1077, 2010 WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte
v. N.Y.S. Div. of Parole, 04-CV-0484, 2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe,
J.).
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review, “the court need only satisfy itself that there is no clear error on the face of the record in
order to accept the recommendation.” Id.4
After conducing the appropriate review, the Court may “accept, reject, or modify, in
whole or in part, the findings or recommendations made by the magistrate judge.” 28 U.S.C. §
636(b)(1)(C).
B.

Standard Governing Judicial Review of Defendant’s Decision

In Part III.A. of his Report-Recommendation, Magistrate Judge Carter correctly recited
the legal standard governing judicial review of Defendant's decision. (Dkt. No. 31, at Part III.A.)
As a result, this standard is incorporated by reference in this Decision and Order, which is
intended primarily for the review of the parties.
III.

ANALYSIS
As an initial matter, the Court finds that Plaintiff’s Objections (described above in Part

I.E. of this Decision and Order) merely reiterate the arguments asserted in her memorandum of
law in support of her motion for judgment on the pleadings, and her memorandum of law in
opposition to Defendant’s motion for judgment on the pleadings (described above in Parts I.C.1.
and I.C.2. of this Decision and Order). As a result, the “challenged” portions of the
Report-Recommendation are entitled to only a clear-error review, which they easily survive for
the reasons stated in the Report-Recommendation.

4

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July
31, 1995) (Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's]
report to which no specific objection is made, so long as those sections are not facially
erroneous.”) (internal quotation marks and citations omitted).
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In the alternative, even if the challenged portions of the Report-Recommendation merited
a de novo review, after carefully reviewing all of the papers in this action, including Magistrate
Judge Carter’s Report-Recommendation, the Court concludes that the Report-Recommendation
is correct in all respects: Magistrate Judge Carter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Dkt. No. 31.) As a result, the
Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated in the
Report-Recommendation, Defendant’s response to Plaintiff’s Objections, and Defendant’s
memorandum of law in support of her motion for judgment on the pleadings.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 31) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s decision denying Plaintiff benefits is AFFIRMED
and Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: January 9, 2018
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
United States District Judge

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