Keller v. Commissioner of Social Security

Filing 22

DECISION AND ORDER accepting and adopting # 19 Magistrate Judge Carter's Report and Recommendation in its entirety. The Commissioner's determination is affirmed, and the Plaintiff's complaint is dismissed. Signed by Chief Judge Glenn T. Suddaby on 7/20/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
MARY ANNE KELLER,
Plaintiff,
v.

Case No. 5:15-CV-309 (GTS/WBC)

CAROLYN W. COLVIN
Commissioner of Social Security,
Defendant.
_____________________________________
APPEARANCES:

OF COUNSEL:

MEGGESTO, CROSSETT & VALERINO
Counsel for Plaintiff
313 East Willow Street, Suite 201
Syracuse, NY 13203

KIMBERLY SLIMBAUGH, ESQ.

U.S. SOCIAL SECURITY ADMIN.
OFFICE OF REG’L GEN. COUNSEL – REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, NY 10278

SERGEI ADEN, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Mary Anne Keller
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”)
pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are (1) the Report and Recommendation of
United States Magistrate Judge William B. Mitchell Carter recommending that Plaintiff’s motion
for judgment on the pleadings be denied, and that Defendant’s motion for judgment on the
pleadings be granted, and (2) Plaintiff’s objections to the Report and Recommendation. (Dkt.
Nos. 19, 20.) For the reasons set forth below, the Report and Recommendation is accepted and
adopted in its entirety.

I.

PLAINTIFF’S OBJECTIONS
Generally, Plaintiff makes two arguments in objection to Magistrate Judge Carter’s

Report and Recommendation. (Dkt. No. 20, at 1-3.)
First, Plaintiff argues that the Court should reject Magistrate Judge Carter’s finding that
substantial evidence supported the ALJ’s rejection of treating physician Dr. Robinson’s opinion
(because evidence does not support that conclusion). (Id., at 2-3.) Within this argument,
Plaintiff argues that the ALJ erred in relying on medical opinions from (1) consultative examiner
Dr. Rosenfeld (because the opinion contained vague terms regarding Plaintiff’s limitations), and
(2) State agency medical consultant Dr. Chopra (because the opinion was partly based on Dr.
Rosenfeld’s opinion, which contained vague terms, and Dr. Chopra did not review medical
records from New York Spine and Wellness Center). (Id.) Objecting to the Report and
Recommendation more specifically, Plaintiff argues that Magistrate Judge Carter erred in (1)
finding that Dr. Rosenfeld’s assessment, when combined with the opinion of Dr. Chopra,
provided a framework which solidified the meaning of Dr. Rosenfeld’s opinion,1 (2) failing to
note that Dr. Chopra based his opinion, in part, on Dr. Robinson’s opinion,2 and (3) stating that a
review of Plaintiff’s records from New York Spine and Wellness Center did not indicate that the
records would have changed the ultimate decision (because it is speculation that these additional
records would not have changed Dr. Chopra’s opinion or the ALJ’s ultimate RFC
determination). (Id.)

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The Court notes that Magistrate Judge Carter also discussed additional medical evidence that
provided context to Dr. Rosenfeld’s opinion, including Dr. Rosenfeld’s examination findings, as well as MRI and
EMG examination findings and Plaintiff’s longitudinal treatment record, which the ALJ determined were consistent
with Dr. Rosenfeld’s opinion. (Dkt. No. 20, at 13-21).
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A review of the complete record indicates that Magistrate Judge Carter correctly noted that Dr.
Chopra reviewed Dr. Robinson’s treatment notes dated March 2012 and April 2010. (Dkt. No. 20, at 18) (citing T.
222). Moreover, contrary to Plaintiff’s argument, Dr. Chopra did not indicate that he reviewed Dr. Robinson’s
August 2012 opinion. (T. 222.)

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Second, Plaintiff argues that the Court should reject Magistrate Judge Carter’s finding
that the ALJ’s credibility determination was supported by substantial evidence. (Id., at 3.) More
specifically, Plaintiff argues that (1) her testimony regarding her symptoms was supported by the
medical records and consultative examiner Dr. Rosenfeld’s report, and (2) the ALJ failed to
resolve the inconsistency between his adverse credibility finding and Dr. Rosenfeld’s report that
he afforded controlling weight. (Id.)
II.

APPLICABLE LEGAL STANDARD
A district court reviewing a magistrate judge’s Report and Recommendation “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). Parties may raise objections to the magistrate
judge’s Report and Recommendation, but they must be “specific written objections,” and must
be submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.”
Fed. R. Civ. P. 72(b)(2); accord, 28 U.S.C. § 636(b)(1)(C). “A judge of the court shall make a
de novo determination of those portions of the [Report and Recommendation] . . . to which
objection is made.” 28 U.S.C. § 636(b)(1)(C); accord, Fed. R. Civ. P. 72(b)(2). “Where,
however, an objecting party makes only conclusory or general objections, or simply reiterates his
original arguments, the Court reviews the Report and Recommendation only for clear error.”
Caldwell v. Crosset, 9-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y. June 9, 2010) (quoting
Farid v. Bouey, 554 F. Supp. 2d 301, 307 [N.D.N.Y. 2008]) (internal quotation marks omitted).
III.

ANALYSIS
The Court finds that Plaintiff’s objections largely reiterate the arguments presented in her

initial brief. (Compare Dkt. No. 20 with Dkt. No. 15.) To the extent that Plaintiff raises specific
objections to Magistrate Judge Carter’s Report and Recommendation, the Court reviews these
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portions of the Report and Recommendation de novo. After carefully reviewing the relevant
filings in this action, the Court finds that Plaintiff’s specific objections to the Report and
Recommendation are without merit. The Court agrees with Magistrate Judge Carter that the ALJ
did not err in assessing the opinions of Dr. Robinson, Dr. Rosenfeld, and Dr. Chopra for the
reasons stated in the Report and Recommendation, notwithstanding Plaintiff’s objections to the
same. (Dkt. No. 19, at 11-21.)
The Court finds that the balance of Plaintiff’s objections merely reiterate arguments
presented in her initial brief. (Compare Dkt. No. 20 with Dkt. No. 15.) Therefore the Court
reviews the portions of Magistrate Judge Carter’s Report and Recommendation addressed in the
balance of Plaintiff’s objections for clear error only. After carefully reviewing the relevant
filings, the Court can find no clear error in the Report and Recommendation. Magistrate Judge
Carter employed the proper standards, accurately recited the facts, and reasonably applied the
law to those facts. (Dkt. No. 19.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report and Recommendation (Dkt. No. 19) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: July 20, 2016
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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