v. Richardson et al

Filing 28

DECISION AND ORDER accepting and adopting # 25 Magistrate 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 5/16/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
CANDICE RICHARDSON,
Plaintiff,
v.

5:15-CV-0360
(GTS/WBC)

CAROLYN W. COLVIN,
Acting Comm’r of Soc. Sec.,
Defendant.
_____________________________________
APPEARANCES:

OF COUNSEL:

BOND, MCDONALD AND LEHMAN, P.C.
Counsel for Plaintiff
91 Genesee Street
Geneva, NY 14456

MARK M. MCDONALD, 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

JOANNE JACKSON PENGELLY, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Candice Richardson
(“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. 25, 26.) For the reasons set forth below, the Report and Recommendation is accepted and
adopted in its entirety.
I.

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

Report and Recommendation. (Dkt. No. 26, at 2-18 [Pl.’s Mem. of Law].)
First, Plaintiff argues that Magistrate Judge Carter erred in finding that the ALJ applied
the correct legal standard in assessing the opinion evidence. (Id. at 2-8.) More specifically,
Plaintiff argues that the ALJ failed to consider “all of the Commissioner’s factors” in weighing
the opinion evidence, and should have afforded greater weight to the opinion of treating nurse
practitioner, Ms. Sillars. (Id.) Within this argument, Plaintiff argues that Magistrate Judge
Carter erred in providing additional analysis of the opinion evidence beyond what the ALJ
discussed. (Id. at 5-6.) Plaintiff further argues that Magistrate Judge Carter and the ALJ erred in
summarizing the opinion of consultative mental examiner, Dr. Caldwell, by incorrectly stating
that Dr. Caldwell opined that Plaintiff was “limited” in her ability to appropriately deal with
stress, rather than “unable” to appropriately deal with stress. (Id. at 6.)
Second, Plaintiff argues that Magistrate Judge Carter incorrectly determined that the ALJ
properly considered the supportability factor under the regulations in affording little weight to
Ms. Sillars’s opinion. (Id. at 8-12.) Third, Plaintiff argues that the ALJ did not apply the correct
legal standard for determining the mental RFC and failed to consider evidence directly
contradicting his RFC finding. (Id. at 12-15.)
Fourth, Plaintiff argues that the errors are not harmless. (Id. at 15-16.) Fifth, and finally,
Plaintiff argues that Magistrate Judge Carter incorrectly determined that the ALJ’s credibility

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assessment was made according to proper legal standards and was supported by substantial
evidence. (Id. at 16-18.)
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 primarily reiterate arguments presented in her

initial brief. (Compare Dkt. No. 26 with Dkt. No. 17.) To the extent that Plaintiff’s first
objection raises specific objections to Magistrate Judge Carter’s Report and Recommendation,
the Court reviews these portions of the Report and Recommendation de novo. Regarding
Plaintiff’s argument that Magistrate Judge Carter and the ALJ erred in summarizing the opinion
of Dr. Caldwell, Plaintiff’s point is well taken. (Dkt. No. 26, at 6 [Pl.’s Mem. of Law].)

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A review of the record confirms that Dr. Caldwell opined that Plaintiff was “unable,”
rather than “limited” in her ability, to appropriately deal with stress. (T. 259.) However, the
Court finds that this misstatement of Dr. Caldwell’s opinion was harmless under the
circumstances. Notwithstanding the misstatement, the ALJ’s assessment of the opinion
evidence, including the opinions from Ms. Sillers and Dr. Caldwell, was supported by substantial
evidence. The Court notes that other mental opinion evidence of record, including the opinions
from State agency medical consultant, Dr. Altsmanberger, and treating nurse practitioner, Ms.
Zambell, indicated that Plaintiff had a greater (albeit limited) ability to tolerate work stress than
opined by Ms. Sillers and Dr. Caldwell. (T. 425-27, 428-31.) For these reasons, the Court finds
that the misstatement of Dr. Caldwell’s opinion was harmless and does not require remand.
The Court finds that the balance of Plaintiff’s objections merely reiterate arguments
presented in her initial brief. (Compare Dkt. No. 26 with Dkt. No. 17.) Therefore the Court
reviews the portions 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 in this action, 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. 25.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report and Recommendation (Dkt. No. 25) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s determination is AFFIRMED; and it is further

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ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: May 16, 2016
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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