Gleason Noelle v. Commissioner of Social Security
Filing
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DECISION AND ORDER accepting and adopting # 16 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 3/10/17. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
ELIZABETH J. GLEASON NOELLE,
Plaintiff,
5:15-CV-1301
(GTS/WBC)
v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
APPEARANCES:
OF COUNSEL:
MEGGESTO, CROSSETT & VALERINO, LLP
Counsel for Plaintiff
313 East Willow Street, Suite 201
Syracuse, New York 13203
KIMBERLY SLIMBAUGH, ESQ.
SOCIAL SECURITY ADMINISTRATION
OFFICE OF REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278
DANIEL R. JANES, ESQ.
PETER W. JEWETT, ESQ.
Special Assistant U.S. Attorneys
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Elizabeth J. Gleason
Noelle (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or
“Commissioner”) seeking Disability Insurance Benefits pursuant to 42 U.S.C. § 405(g), are (1)
United States Magistrate Judge William B. Mitchell Carter’s Report-Recommendation
recommending that the Commissioner’s decision be affirmed and that Plaintiff’s Complaint be
dismissed, and (2) Plaintiff’s Objection to the Report-Recommendation. (Dkt. Nos. 16, 17.) For
the reasons set forth below, the Report-Recommendation is accepted and adopted.
I.
RELEVANT BACKGROUND
A.
Relevant Procedural History
On May 20, 2011, Plaintiff applied for a period of Disability Insurance Benefits under the
Social Security Act. (Administrative Transcript [“T.”] at 90.) Plaintiff’s application was
initially denied by the Social Security Administration. Plaintiff appealed the decision; hearings
were held by an Administrative Law Judge (“ALJ”), David S. Pang; and, on April 25, 2014, ALJ
Pang issued a written decision finding Plaintiff not disabled under the Social Security Act. (T. at
61-88, 97-114.) Subsequently, the Appeals Council denied Plaintiff’s request for review,
rendering the ALJ’s decision the final decision of the Commissioner. (T. at 1-5.) On November
2, 2015, Plaintiff filed this action in this Court. (Dkt. No. 1.)
B.
Magistrate Judge Carter’s Report-Recommendation
Generally, in his Report-Recommendation, Magistrate Judge Carter rendered the
following four findings of fact and/or conclusions of law: (1) the ALJ did not err in evaluating
the opinion of Jody Hipple, NP, in assessing the severity of her impairment and ability to work,
because (a) the conclusions of nurse practitioners regarding such subjects are not entitled to any
special weight, (b) here, the ALJ considered Nurse Hipple’s opinion and rejected it on the
grounds that the limitations were based primarily on Plaintiff’s subjective reports, there were no
significant abnormal physical findings to support the limitations, and the limitations were
inconsistent with the consultative examiner’s examination and opinion, and (c) in any event,
despite expressly affording Nurse Hipple’s opinion “no weight,” he in fact adopted the portion of
her opinion regarding the amount of weight that Plaintiff could lift and carry; (2) the ALJ did not
err in assessing Plaintiff’s credibility, because (a) her activities of daily living could reasonably
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support the ALJ’s conclusion that her statements regarding the limiting effects of her symptoms
were not as severe as alleged, and (b) in addition to Plaintiff’s activities of daily living, the ALJ
relied on objective medical evidence in the record such as treatment notations and testing; (3) the
ALJ did not err in determining, at step four, that Plaintiff was capable of performing her past
relevant work as a sales manager, because Plaintiff failed to show that her past relevant work as
a sales manager was a “composite” job (especially given the hearing testimony of the vocational
expert to the contrary); and (4) any error that the ALJ committed in determining, at step four,
that Plaintiff’s past relevant work included work as a data entry clerk was harmless, because the
ALJ properly determined that Plaintiff could perform her past relevant work as a sales manager.
(Dkt. No. 16, at Part IV.)
C.
Objections to the Report-Recommendation
Generally, in her Objections to the Report-Recommendation, Plaintiff asserts the
following two arguments: (1) the ALJ erred in assessing Plaintiff’s credibility regarding her
limitations by (a) penalizing her for doing simply daily activities despite the pain of her
disability, (b) relying on the one-time report of Nurse Practitioner Mary Ellen Flannigan, who
was not Plaintiff’s main treatment source, (c) failing to explain how the ability to perform simple
daily activities equates to the ability to perform substantial gainful activity, and (d) ignoring or
discounting Plaintiff’s very strong work history; and (2) the ALJ erred in evaluating the opinion
of Plaintiff’s treating Nurse Practitioner, Jody Hipple, because (a) Nurse Hipple’s reliance on
Plaintiff’s complaints of pain (which is, by definition, subjective) was permissible and indeed an
essential diagnostic tool, (b) the fact that some of the physical exams of Plaintiff showed
“normal results” is (given Plaintiff’s complaints of pain) actually evidence of fibromyalgia, and
(c) the fact that Plaintiff continued to seek, and receive, medicare care and medications to try to
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alleviate her symptoms further supports Nurse Hipple’s opinion. (Dkt. No. 17.)
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
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
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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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
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
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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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”
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. 16, 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 notes that Plaintiff’s objections to the Report-
Recommendation (described above in Part I.C. of this Decision and Order) repeat arguments
previously asserted in Plaintiff’s brief in support of her motion for judgment on the pleadings
before Magistrate Judge Carter. (Compare Dkt. No. 17, at Points I and II [Plf.’s Objections]
with Dkt. No. 11, at Points III and V [Plf.’s Brief].) As a result, the “challenged” portions of the
Report-Recommendation are entitled to only a clear-error review.
After carefully reviewing all of the papers in this action, including Magistrate Judge
Carter’s thorough Report-Recommendation, the Court can find no clear error in the
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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Report-Recommendation: Magistrate Judge Carter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Dkt. No. 16.) As a result, the
Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated
therein. The Court notes that, even if it were to subject the challenged portions of the ReportRecommendation to a de novo review, it would find those portions survive that review for the
reasons stated in the Report-Recommendation: (1) the ALJ did not err in assessing Plaintiff’s
credibility regarding her limitations; and (2) the ALJ did not err in evaluating the opinion of
Plaintiff’s treating Nurse Practitioner, Jody Hipple.
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 16) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s decision is AFFIRMED and Plaintiff’s Complaint
(Dkt. No. 1) is DISMISSED.
Dated: March 10, 2017
Syracuse, New York
________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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