Atkyns v. Astrue

Filing 26

MEMORANDUM-DECISION and ORDER - That Magistrate Judge Earl S. Hines' May 16, 2014 19 Report and Recommendation is ADOPTED in its entirety. That the decision of the Commissioner is AFFIRMED and Atkyn's complaint (Dkt. No. 1) is DISMISSED. Signed by Chief Judge Gary L. Sharpe on 9/16/2014. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________
DOUGLAS W. ATKYNS,
Plaintiff,

6:13-cv-161
(GLS/ESH)

v.
CAROLYN W. COLVIN, Acting
Commission of Social Security,
Defendant.
_________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Iaconis Law Firm
501 Genesee Street
Chittenango, NY 13037

CHRISTOPHER D. THORPE,
ESQ.

FOR THE DEFENDANT:
HON. RICHARD S. HARTUNIAN
United States Attorney
Syracuse, NY 13261

JEREMY A. LINDEN
Special Assistant U.S. Attorney

Steven P. Conte
Regional Chief Counsel
Social Security Administration
Office of General Counsel, Region II
26 Federal Plaza, Room 3904
New York, NY 10278
Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER

I. Introduction
Plaintiff Douglas W. Atkyns challenges defendant Commissioner of
Social Security’s denial of Disability Insurance Benefits (DIB), seeking
review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report and
Recommendation (R&R) filed May 16, 2014, Magistrate Judge Earl S.
Hines recommended that the Commissioner’s decision be affirmed. (Dkt.
No. 19.) Pending are Atkyns’ objections to the R&R. (Dkt. No. 24.) For
the reasons that follow, the court adopts the R&R in its entirety.
II. Background1
On November 6, 2009, Atkyns filed an application for DIB under the
Social Security Act. (Tr.2 at 76, 153-54.) After his application was denied,
Atkyns requested a hearing before an Administrative Law Judge (ALJ),
which was held on June 17, 2011. (Id. at 43-75, 87-88.) On July 29, 2011,
the ALJ issued a decision denying the requested benefits, which became
the Commissioner’s final determination upon the Social Security
Administration Appeals Council’s denial of review. (Id. at 1-6, 27-42.)
Atkyns commenced the present action by filing a complaint on
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The court incorporates the factual recitations of the parties and Judge Hines. ( See
generally Dkt. Nos. 14, 17, 19.)
2

Page references preceded by “Tr.” are to the Administrative Transcript. (Dkt. No. 8.)

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February 11, 2013, seeking judicial review of the Commissioner’s
determination. (See generally Compl.) After receiving the parties’ briefs,
Judge Hines issued an R&R recommending that the Commissioner’s
decision be affirmed. (See generally Dkt. No. 19.)
III. Standard of Review
By statute and rule, district courts are authorized to refer social
security appeals to magistrate judges for proposed findings and
recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B);
N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final
judgment, this court reviews report and recommendation orders in cases it
has referred to a magistrate judge. If a party properly objects to a specific
element of the magistrate judge’s findings and recommendations, this court
reviews those findings and recommendations de novo. See Almonte v.
N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3,
*5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an
objection, only vague or general objections are made, or a party resubmits
the same papers and arguments already considered by the magistrate
judge, this court reviews the findings and recommendations of the
magistrate judge for clear error. See id. at *4-5.
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IV. Discussion
In the R&R, Magistrate Judge Hines found that: (1) any error at step
two of the sequential evaluation with respect to the severity of Atkyns’
obesity and left foot pain was, at most, harmless; (2) the ALJ’s rejection of
Atkyns’ treating physician’s opinions was conducted under the correct legal
standard and was supported by substantial evidence; (3) the ALJ’s
assessment of Atkyns’ subjective testimony was conducted under the
correct legal standard and was supported by substantial evidence; and (4)
the ALJ’s inaccurate recitation of the amended alleged onset date 3 was, at
most, harmless error. (Dkt. No. 19 at 4-17.) In objecting to the R&R,
Atkyns has repeated many of the same arguments raised before Judge
Hines in his motion for judgment on the pleadings, and made new
arguments raised for the first time in his objection. (Dkt. Nos. 14, 24.) In
particular, Atykns objects to Judge Hines’ finding with respect to the ALJ’s
severity decision, his decision to give less than controlling weight to the
opinions of Atkyns’ treating physician, and his credibility determination.
(Dkt. No. 24 at 2-17.) Atkyns also objects, for the first time, to the ALJ’s

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The ALJ’s decision indicates that Atkyns amended his onset date to November 23,
2008. (Tr. at 30.) The correct date was one month earlier, October 23, 2008. (Id. at 46, 219;
Dkt. No. 19 at 16.)

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weighing of the opinions and findings of consulting psychologist Kristen
Barry, non-examining psychological consultant L. Hoffman, and treating
psychologist Connie Lee Jones. (Id. at 8-10, 12-13; see generally Dkt. No.
14 at 7-15.)
Generally, arguments may not be raised for the first time in objections
to a magistrate judge’s report. See Lewyckyj v. Colvin, No. 3:13-cv-126,
2014 WL 3534551, at *2 (N.D.N.Y. July 17, 2014); Rosello v. Barnhart, 02
Civ. 4629, 2004 WL 2366177, at *3 (S.D.N.Y. Oct. 20, 2004); Abu-Nassar
v. Elders Futures. Inc., 88 Civ. 7906, 1994 WL 445638, at *5 n.2 (S.D.N.Y.
Aug. 17, 1994). As such, the court finds Atkyns’ arguments with respect to
his alleged mental issues waived. (Dkt. No. 19 at 8 n.11.) Further, as the
substance of Atkyns’ arguments with respect to the ALJ’s severity decision,
his decision to give less than controlling weight to the opinion of Atkyns’
treating physician, and his credibility determination was previously raised in
Atkyns’ brief and considered and rejected by Judge Hines, (Dkt. No. 14 at
3-22; Dkt. No. 19 at 4-16), these “objections,” are general and do not
warrant de novo review. See Almonte, 2006 WL 149049 at *4. However,
since some of Atkyns’ arguments could conceivably be construed as
timely, specific legal objections to Judge Hines’ conclusions, and affording
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Atkyns every benefit of the doubt, the court will review these objections to
the R&R de novo.
A.

Severity Determination
First, Atkyns contends that the Magistrate erred in concluding that

any error at step two was harmless because the ALJ’s residual functional
capacity (RFC) determination does not account for Dr. David Haswell’s
restrictive opinion with respect to standing and walking or Atkyns’ testimony
that his foot pain interfered with walking or standing occasionally. (Dkt. No.
24 at 4-5.) As Judge Hines’ concluded here, the omission of an impairment
at step two may be deemed harmless error, particularly where the disability
analysis continues and the ALJ later considers the impairment in his RFC
determination. (Dkt. No. 19 at 7); see Tryon v. Astrue, No. 5:10-CV-537,
2012 WL 398952, at *4 (N.D.N.Y. Feb. 7, 2012); see also Plante v. Astrue,
No. 2:11-CV-77, 2011 WL 6180049, at *4 (D. Vt. Dec. 13, 2011). Contrary
to Atkyns’ arguments, in this case, the ALJ’s RFC assessment included
consideration of Atkyns’ obesity and foot pain. (Tr. at 36-37.) Notably, Dr.
Haswell’s opinion did not indicate foot pain as a cause of Atkyns’
limitations, and the opinion of consulting examiner Roberto Rivera, who
indicated that Atkyns possibly suffered sensory neuropathy in the second
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digit of his left toe, supports the ALJ’s RFC determination. (Id. at 374, 43542.) Because the ALJ’s RFC assessment accounts for the functional
effects of Atkyns’ obesity and foot pain, Atkyns’ argument is without merit.
B.

Weighing Medical Opinions
Next, Atkyns’ asserts that Judge Hines’ decision is contrary to the law

in the Second Circuit, which prohibits an ALJ from affording a treating
physician’s opinion “almost no weight at all.” (Dkt. No. 24 at 5.) The court
does not agree. As Judge Hines’ pointed out, controlling weight will only
be given to a treating physician’s opinion that is “well-supported by
medically acceptable clinical and laboratory diagnostic techniques and is
not inconsistent with the other substantial evidence.” 20 C.F.R.
§ 404.1527(c)(2); see Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004);
(Dkt. No. 19 at 10.) Further, “an ALJ is entitled to rely upon the opinions of
both examining and non-examining State agency medical consultants,
since such consultants are deemed to be qualified experts in the field of
social security disability.” Baszto v. Astrue, 700 F. Supp. 2d 242, 249
(N.D.N.Y. 2010); see Diaz v. Shalala, 59 F.3d 307, 313 n.5 (2d Cir. 1995)
(noting that the applicable regulations “permit the opinions of nonexamining sources to override treating sources’ opinions provided they are
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supported by evidence in the record”); Florez v. Apfel, No. CV 97-3052,
1998 WL 760334, at *6-7 (E.D.N.Y. Aug. 31, 1998) (“Given that [the
medical expert’s] opinions are supported by the record, and [the treating
physician’s] opinion that the [claimant] was disabled is not, the ALJ was
free to find the non-examining expert’s testimony persuasive.”). Thus, the
ALJ was entitled to rely on the opinions of consultative examiner Rivera
and non-examining medical consultant M. Fuhrman. (Tr. at 37.) As the
ALJ relied on the opinions of these experts, it cannot be said that he
substituted his own opinion for that of competent medical opinion. (Dkt.
No. 24 at 8.)
In addition, Atkyns’ contention that the test reports and medical notes
referred to by Judge Hines dealt with conditions for which he did not claim
disability is without merit. (Id. at 11.) Judge Hines’ decision makes clear
that the whole of Dr. Haswell’s treatment notes do not contain support for
his restrictive opinion, including his physical examination results, mental
status examination results, chest x-rays, and lumbosacral spine x-rays.
(Dkt. No. 19 at 12 n.17.) Atkyns alleges disability due to depression,
hypertensive heart disease, and left foot pain. (Tr. at 219.) Thus, “heart
testing and examination findings, flexion findings in [Atkyns’] feet, and
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chest x-ray findings” are relevant evidence to consider in weighing the
opinion of Dr. Haswell. (Dkt. No. 24 at 11-12.) Moreover, as the record
before the ALJ included Dr. Haswell’s clinical and laboratory findings and
there were no “obvious gaps,” the ALJ was not required to seek additional
information from Dr. Haswell. Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d
Cir. 1999); see Pellam v. Astrue, 508 F. App’x 87, 90 (2d Cir. 2013).
C.

Credibility Determination
Finally, although the ALJ did not undertake a step-by-step exposition

of the factors articulated in 20 C.F.R. § 404.1529(c), he sufficiently set forth
reasons, which were well-grounded in the record, for finding Atkyns to be
only partially credible. See Judelsohn v. Astrue, No. 11-CV-388S, 2012
WL 2401587, at *6 (W.D.N.Y. June 25, 2012) (“[F]ailure to expressly
consider every factor set forth in the regulations is not grounds for remand
where the reasons for the ALJ’s determination of credibility are sufficiently
specific to conclude that he considered the entire evidentiary record.”
(internal quotation marks and citation omitted)). Atkyns complains that the
ALJ “summarily concludes” that his credibility is diminished because he quit
his longtime job due to differences with a supervisor, and not because he
was unable to continue to work due to medical reasons. (Dkt. No. 24 at 209

21; Tr. at 445.) Further, Atkyns argues that, because he amended his
alleged onset date to a date more than a year later, the fact that he quit this
employer is irrelevant. (Dkt. No. 24 at 21.) However, in assessing the
credibility of an individual’s subjective complaints, an ALJ should consider
all of the evidence of record, including the claimant’s prior work record and
efforts to work. See SSR 96-7p, 61 Fed. Reg. 34,483, 34,486 (July 2,
1996). Moreover, after Atkyns quit this long-term employer, he again
maintained competitive employment until he was laid off in October 2008,
his amended onset date. (Tr. at 49-51.) Thus, the ALJ’s conclusion that
Atkyns did not stop working due to his medical impairments is supported by
the record. In addition to Atkyns’ work history, the ALJ also considered the
objective medical evidence, the opinion evidence, and Atkyns’
improvement on medication. (Id. at 37.) Accordingly, and for the reasons
articulated by Judge Hines in the R&R, the ALJ’s determination that Atkyns
is not fully credible is free from legal error and supported by substantial
evidence. (Dkt. No. 19 at 15-16.)
D.

Remaining Findings and Conclusions
As to the remainder of Atkyns’ objections, the court, having carefully

reviewed the record, finds no clear error in the R&R and accepts and
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adopts it in its entirety.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Magistrate Judge Earl S. Hines’ May 16, 2014
Report and Recommendation (Dkt. No. 19) is ADOPTED in its entirety; and
it is further
ORDERED that the decision of the Commissioner is AFFIRMED and
Atkyns’ complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
September 16, 2014
Albany, New York

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