Davis v. Commissioner of Social Security

Filing 24

MEMORANDUM-DECISION and ORDER. The Court hereby ORDERS that the Report-Recommendation, Dkt. No. 19 , is ADOPTED in its entirety. The Court further ORDERS that Plaintiff's motion, Dkt. No. 12 , is DENIED. The Court further ORDERS that the Co mmissioner's motion, Dkt. No. 18 is GRANTED. The Court further ORDERS that the Complaint, Dkt. No. 1 , is DISMISSED. The Court further ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules. Signed by U.S. District Judge Anne M. Nardacci on 9/24/2024. (mab)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
TASHONA R. D.,
Plaintiff,
v.

5:23-cv-00583 (AMN/CFH)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
APPEARANCES:

OF COUNSEL:

OLINSKY LAW GROUP
250 South Clinton Street, Suite 210
Syracuse, New York 13202
Attorneys for Plaintiff

HOWARD D. OLINSKY, ESQ.

SOCIAL SECURITY ADMINISTRATION
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for Defendant

KATHRYN S. POLLACK, ESQ.

Hon. Anne M. Nardacci, United States District Judge:
MEMORANDUM-DECISION AND ORDER
I.

INTRODUCTION
On May 15, 2023, Plaintiff Tashona R. D.1 commenced this action pursuant to

42 U.S.C. § 405(g) seeking judicial review of a final decision of the Commissioner of Social

1

In accordance with the local practice of this Court, Plaintiff’s last name has been abbreviated to
protect her privacy.

Security (“Commissioner”) denying her application for a period of disability and disability
insurance benefits (“Complaint”). Dkt. No. 1.2
This matter was referred to United States Magistrate Judge Christian F. Hummel, who, on
August 12, 2024, recommended that the Court deny Plaintiff’s motion to vacate the
Commissioner’s decision and remand for further proceedings, Dkt. No. 12, grant the
Commissioner’s motion for judgment on the pleadings, Dkt. No. 18, dismiss the Complaint, Dkt.
No. 1, and affirm the Commissioner’s decision. Dkt. No. 19 (“Report-Recommendation”).3
Magistrate Judge Hummel advised that under 28 U.S.C. § 636(b)(1) and Local Rule 72.1(c), the
parties had fourteen days within which to file written objections and that failure to object to the
Report-Recommendation within fourteen days would preclude appellate review.

Id. at 27.

Plaintiff filed timely objections on August 26, 2024. Dkt. No. 20. Commissioner sought an
unopposed extension of its time to respond on September 6, 2024, and the Court granted an
extension until September 19, 2024. Dkt. Nos. 21, 22. Commissioner filed a response to Plaintiff’s
objections on September 19, 2024. Dkt. No. 23.
For the reasons set forth below, the Court adopts the Report-Recommendation in its
entirety.
II.

STANDARD OF REVIEW
This Court reviews de novo those portions of a magistrate judge’s report-recommendation

that have been properly preserved with a specific objection. Petersen v. Astrue, 2 F. Supp. 3d 223,

2

Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic
filing system.
3

The case was reassigned to the undersigned on May 17, 2023. Dkt. No. 7.
2

228 (N.D.N.Y. 2012); 28 U.S.C. § 636(b)(1)(C).4 If no specific objections have been filed, this
Court reviews a magistrate judge’s report-recommendation for clear error. See Petersen, 2 F.
Supp. 3d at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition).
Similarly, if an objection simply rehashes arguments originally presented to the magistrate judge,
this Court reviews the relevant portions of the report-recommendation for clear error. See id. at
228-29 & n.6 (collecting cases). “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.’” Dezarea W. v. Comm’r of Soc. Sec., No. 6:21-CV-01138 (MAD/TWD), 2023
WL 2552452, at *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm’r of Soc. Sec., No. 1:17CV-0367 (GTS/WBC), 2017 WL 5484663, at *1 n.1 (N.D.N.Y. Nov. 14, 2017)). “[O]bjections
that are merely perfunctory responses argued in an attempt to engage the district court in a
rehashing of the same arguments set forth in the original [papers] will not suffice to invoke de
novo review.” Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at *1 (S.D.N.Y. Sept. 30,
2002). After 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).
III.

DISCUSSION
The Court adopts those aspects of the Report-Recommendation to which neither party has

raised a specific objection, finding no clear error therein, including the background and legal
framework set forth in the Report-Recommendation, familiarity with which is presumed for
purposes of this decision. See Dkt. No. 19 at 1-7.

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“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.’” Petersen, 2 F. Supp. 3d at 228 (quoting N.D.N.Y. Local Rule 72.1(c)).
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First, Plaintiff objects to the Report-Recommendation’s finding that the administrative law
judge (“ALJ”) properly considered the opinion of Dr. Corey Anne Grassl (“Dr. Grassl”) in finding
Plaintiff was subject to moderate limitations in her residual functional capacity (“RFC”) analysis.
Compare Dkt. No. 20 at 1-3, with Dkt. No. 19 at 7-20. Specifically, Plaintiff argues that the RFC
failed to “account[] for all limitations assessed” in Dr. Grassl’s opinion. See Dkt. No 20 at 2. The
Court finds that Plaintiff’s objection restates arguments already presented to—and addressed by—
Magistrate Judge Hummel. Compare Dkt. No. 20, with Dkt. Nos. 12 at 9-18; Dkt. No. 19 at 8-20.
Indeed, Plaintiff admits the argument was “stated in detail in Plaintiff’s initial briefing.” Dkt. No.
20 at 2. The Court finds no clear error in the treatment of this argument in the ReportRecommendation. See Dkt. No. 19 at 8-20; see also Petersen, 2 F. Supp. 3d at 228-29 & n.6. The
Court is satisfied with the Report-Recommendation’s finding that the ALJ properly considered
and incorporated the limitations in Dr. Grassl’s opinion. See, e.g., Matta v. Astrue, 508 Fed. Appx.
53, 56 (2d Cir. 2013) (“Although the ALJ’s conclusion may not perfectly correspond with any of
the opinions of medical sources cited in his decision, [s]he was entitled to weigh all of the evidence
available to make an RFC finding that was consistent with the record as a whole”); Daniel J. v.
Kijakazi, 3:21-CV-1121 (ATB), 2022 WL 17177619, at *11 (N.D.N.Y. Nov. 23, 2022) (explaining
that an RFC determination for “simple” work requiring only simple tasks and instructions was
consistent with opinions finding moderate limitations in the claimant’s ability to sustain a routine
and concentration); Michael C. v. Berryhill, No. 17-CV-1395 (DJS), 2019 WL 1228553, at *5-6
(N.D.N.Y. Mar. 15, 2019) (“[t]here is significant case law within the Second Circuit finding that
providing RFC limitations such as ‘simple, repetitive instructions’ and limiting the amount of . . .
changes in the work setting account for a claimant’s moderate limitations in maintaining a
schedule”) (citation omitted); Coleman v. Comm’r of Soc. Sec., 335 F. Supp. 3d 389, 401

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(W.D.N.Y. 2018) (“The ALJ’s failure to include specifically in the RFC all of the mental
limitations assessed by [the medical opinions] does not necessitate remand”); Landers v. Colvin,
14-CV-1090S, 2016 WL 1211283, at *4 (W.D.N.Y. Mar. 29, 2016) (“The determination that
Plaintiff is limited to ‘simple, repetitive, and routine tasks’ accounts for Plaintiff's limitations as to
maintaining ... regular attendance”).
Second, to the extent Plaintiff argues that the Report-Recommendation improperly
provides its own rationale and assessment of the evidence by pointing to additional medical
opinions from non-examining state agency consultants to justify the RFC, the Court reviews that
argument de novo. Id. at 2-3. Plaintiff’s argument is not supported by the record. The ALJ
explicitly considered the assessments of the non-examining state agency consultants in reaching
its RFC determination. See Dkt. No. 9-2 at 27. Moreover, the ALJ found the non-examining state
agency consultants’ opinions to be persuasive and that they were “generally consistent with the
overall developed record and [Dr. Grassl]’s opinion.” Id. (emphasis added). As such, the ReportRecommendation does not “point to the findings of the non-examining, non-treating state agency
consultants in an attempt to intuit what the ALJ may have been thinking.” Dkt. No. 20 at 3.
Instead, the Report-Recommendation relies on the ALJ’s actual “treatment of evidence” which is
“apparent from the Commissioner’s decision itself.” Contra Bartrum v. Astrue, 32 F. Supp. 3d
320, 331 (N.D.N.Y. 2012).
Plaintiff’s other cited case law is similarly inapplicable. In Petersen, the Court remanded
because the ALJ’s decision contradicted a medical opinion which the ALJ afforded “great weight.”
2 F. Supp. 3d at 234. Here, no such contradiction exists. Instead, Plaintiff takes issue with the
fact that the RFC determination excludes a minority of the mental limitations assessed in one of
several medical opinions, none of which were afforded “great weight.” Dkt. No. 9-2 at 27-28. In

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fact, the ALJ explicitly stated she could not “defer or give any specific evidentiary weight,
including controlling weight, to any prior administrative medical finding(s) or medical opinion(s).”
Id. at 26. Therefore, the RFC determination does not “contradict[]” an opinion which was afforded
“great weight,” and Petersen is inapplicable. 2 F. Supp. 3d at 234. Moreover, Plaintiff’s reliance
on Michael S. v. Saul misses the mark. 3:18-CV-0443(TWD), 2019 WL 4038532, at *6 (N.D.N.Y.
Aug. 27, 2019). There, the Court was forced to remand “because of the confusion regarding the
record and uncertainty as to whether [the ALJ] reviewed a complete record when making her
decision.” Id. There are no such uncertainties here, and instead, the ALJ explicitly considered the
relevant parts of the record. Dkt. No. 9-2 at 26-28.
Finally, to the extent that Plaintiff argues that it is improper to rely on the additional nonexamining opinions because the opinions are “not consistent with the record as a whole,” Dkt. No.
20 at 3, the Court reviews this argument de novo. Plaintiff’s argument ignores the law and the
record. At base, the ALJ may rely on non-examining state agency consultants’ assessments in
determining a claimant’s RFC. See, e.g., Frye ex rel. A.O. v. Astrue, 485 F. App’x 484, 487 (2d
Cir. 2012) (the assessment of a State agency medical consultant constitutes expert evidence, which
can be relied upon if supported); see also Wetzel v. Berryhill, 783 F. App’x 44, 46 (2d Cir. 2019)
(finding that ALJ appropriately relied on non-examining state agency medical assessment); Perry
v. Berryhill, 711 F. App’x 9, 10 (2d Cir. 2017) (same); Camille v. Colvin, 652 F. App’x 25, 28-29
(2d Cir. 2016) (same); Christina v. Colvin, 594 F. App’x 32, 33 (2d Cir. 2015) (same). However,
to the extent the assessments are given weight, the ALJ must “consider[] a number of factors in
attributing weight to the [non-examining] medical opinions, including . . . the consistency of the
opinion with the record . . . and the extent to which a medical source is familiar with the other
information in [the claimant’s] case record.” Wetzel, 783 F. App’x at 46 (citing 20 C.F.R. §

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404.1527(c)(6)). Here, the ALJ properly considered the necessary factors. Dkt. No. 9-2 at 27
(noting the evidence relied upon by the non-examining consultants and that the opinions are
“generally consistent with the overall developed record and the psychological consultative
examiner’s opinion”). Plaintiff fails to identify which aspects of the opinions are inconsistent with
the record. Indeed, this Court finds the opinions are generally consistent with one another and the
record as a whole. See Dkt. No 19 at 17 (noting the two non-examining medical consultant
opinions reached “the same conclusions” and listing those conclusions); Dkt. No. 9-2 at 27 (the
ALJ noting the non-examining medical consultants “provided details and citation to support their
opinions”).
Again, Plaintiff’s cases are not to the contrary. Cheatham v. Comm’r of Soc. Sec., in fact,
stands for the proposition that the ALJ is permitted to rely on the opinions of non-examining
medical consultants. 1:17-CV-0782, 2018 WL 5909937, at *6 (W.D.N.Y. Nov. 6, 2018). And
while Ortiz v. Comm’r of Soc. Sec. states such opinions may only be relied on “if [they are]
consistent with the record as a whole,” that is expressly the case here. 309 F. Supp. 3d 189, 205
(S.D.N.Y. 2018).
Accordingly, the Report-Recommendation is adopted in its entirety.
IV.

CONCLUSION
Accordingly, the Court hereby
ORDERS that the Report-Recommendation, Dkt. No. 19, is ADOPTED in its entirety;

and the Court further
ORDERS that Plaintiff’s motion, Dkt. No. 12, is DENIED; and the Court further
ORDERS that the Commissioner’s motion, Dkt. No. 18, is GRANTED; and the Court
further

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ORDERS that the Complaint, Dkt. No. 1, is DISMISSED; and the Court further
ORDERS that the Clerk serve a copy of this Memorandum-Decision and Order on all
parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 24, 2024
Albany, New York

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