Cass v. Colvin

Filing 15

MEMORANDUM-DECISION AND ORDER adopting Report and Recommendations re 13 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Baxter's January 21, 2016 Report-Recommendation is ADOPTED in its entirety for the reasons set f orth therein; and the Court further ORDERS that the Commissioner's decision is AFFIRMED; and the Court further ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor and close this case; and the Court further ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision and Order on all parties in accordance with the Local Rules.. Signed by U.S. District Judge Mae A. D'Agostino on 3/29/2016. (ban)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
BRIAN PHILLIP CASS,
Plaintiff,
vs.

6:14-CV-1509
(MAD/ATB)

CAROLYN W. COLVIN,
Commissioner of the Social Security Administration,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF PETER W. ANTONOWICZ
148 West Dominick Street
Rome, New York 13440
Attorney for Plaintiff

PETER W. ANTONOWICZ, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
Region II
26 Federal Plaza, Room 3904
New York, New York 10278
Attorneys for Defendant

VERNON NORWOOD, ESQ.

Mae A. D'Agostino, U.S. District Judge:
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
On October 13, 2011, Plaintiff Brian Phillip Cass ("Plaintiff") protectively filed
applications for Disability Insurance Benefits ("DIB") and Supplemental Security Income
Benefits ("SSI"), alleging a disability onset date of June 15, 2001. See Administrative Transcript
("T.") at 12. The Commissioner of the Social Security Administration ("Commissioner") denied
Plaintiff's initial claims on February 6, 2011. See T. at 75-76. Plaintiff then requested a hearing
before Administrative Law Judge Sandra D. Lord ("ALJ"), which took place on April 11, 2013.

See id. at 26-74. On May 22, 2013, the ALJ issued a decision denying Plaintiff's applications.
See id. at 9-25. Plaintiff thereafter requested an Appeals Council review, which was denied on
October 17, 2014, thereby making the ALJ's decision the final determination of the
Commissioner. See id. at 1-6.
On December 12, 2014, Plaintiff commenced this action under 42 U.S.C. §§ 405(g) and
1383(c)(3), seeking review of the Commissioner's unfavorable decision. See Dkt. No. 1. The
case was then referred to United States Magistrate Judge Andrew T. Baxter for a ReportRecommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d). On January 21, 2016,
Magistrate Judge Baxter recommended that the Court affirm the Commissioner's decision and
dismiss Plaintiff's complaint. See Dkt. No. 13 at 27. Currently before the Court are Magistrate
Judge Baxter's January 21, 2016 Report-Recommendation and Plaintiff's objections thereto. See
Dkt. Nos. 13, 14.

II. BACKGROUND
The Court accepts and adopts the factual background as set forth in the Report-Recommendation
to the extent that Plaintiff has not objected to any facts relevant to the following discussion. See
Dkt. No. 13 at 4-6.

III. DISCUSSION
A.

Standard of Review
When a party makes specific objections to a magistrate judge's report, the district court

engages in de novo review of the issues raised in the objections. See Farid v. Bouey, 554 F. Supp.
2d 301, 307 (N.D.N.Y. 2008) (citation omitted). However, when a party fails to make specific
objections or simply reiterates arguments already considered in the report and recomendation, the
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court reviews the magistrate judge's report for clear error. See id.; see also Gamble v. Barnhart,
No. 02CV1126, 2004 WL 2725126, *1 (S.D.N.Y. Nov. 29, 2004) (citations omitted).
In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does
not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3);
Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court
must examine the Administrative Transcript to ascertain whether the correct legal standards were
applied, and whether the decision is supported by substantial evidence. See Shaw v. Chater, 221
F.3d 126, 131 (2d Cir. 2000); Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998). "Substantial
evidence" is evidence that amounts to "more than a mere scintilla," and it has been defined as
"such relevant evidence as a reasonable mind might accept as adequate to support a conclusion."
Richardson v. Perales, 402 U.S. 389, 401 (1971).
If supported by substantial evidence, the Commissioner's finding must be sustained "even
where substantial evidence may support the plaintiff's position and despite that the court's
independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan,
805 F. Supp. 147, 153 (S.D.N.Y. 1992). In other words, this Court must afford the
Commissioner's determination considerable deference, and may not substitute "its own judgment
for that of the [Commissioner], even if it might justifiably have reached a different result upon a
de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir.
1984).
Here, Plaintiff's objections generally repeat two of the same arguments raised in his initial
brief, thus, the entire Report-Recommendation will be reviewed for clear error. See Dkt. No. 11
at 1; Dkt. No. 14 at 1. First, Plaintiff objects to Magistrate Judge Baxter's finding that substantial
evidence supported the ALJ's step-three determination that Plaintiff's mental impairments did not
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meet or medically equal the listed impairments. See Dkt. No. 14 at 1-3. Specifically, Plaintiff
contends that "[t]he evidence relied upon by the ALJ is selective and not substantial." Id. at 3.
Second, Plaintiff objects to Magistrate Judge Baxter's finding that the ALJ's residual functional
capacity ("RFC") determination properly weighed the medical opinion evidence and was
supported by substantial evidence. See id. at 4; Dkt. No. 13 at 7. In particular, Plaintiff argues
that the ALJ improperly "accorded greater weight to the opinions of a state agency nonexamining physician of unknown qualification who admittedly based his/her opinions on
nothing." Dkt. No. 14 at 6.

B.

Severity of impairments
Citing Plaintiff's function report and hearing testimony, the ALJ found that Plaintiff had

mild restrictions in daily living. See Dkt. No. 13 at 9-10; T. at 15-16. The ALJ further considered
Dr. Stang's March 2013 opinion and Plaintiff's testimony to determine that he had moderate
difficulties in social functioning, mild difficulties in concentration, persistence or pace, and no
episodes of decompensation. See Dkt. No. 13 at 10-11; T. at 15-16. Plaintiff argues that the
ALJ's "selective and cursory review of the plaintiff's symptoms was inadequate and not
substantial." Dkt. No. 14 at 4.
In supporting her decision with substantial evidence, the ALJ cannot pick and choose only
the parts of the record that support her determination without affording consideration to the
evidence supporting Plaintiff's claim. See Credle v. Astrue, No. 10-CV-5624, 2012 WL 4174889,
*17 (E.D.N.Y. Sept. 19, 2012) (citing Stewart v. Astrue, No. 10-CV-3032, 2012 WL 314867
(E.D.N.Y. Feb. 1, 2012)). The ALJ may consider data provided by physicians to help reach her
own conclusions as to whether the medical evidence supports a finding of disability. See id., at
*18 (citing Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999)). To the extent that any medical
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provider's reports are inconsistent, the ALJ is empowered to resolve the conflicts in the evidence.
See Netter v. Astrue, 272 Fed. Appx. 54, 56 (2d Cir. 2008) (citing Veino v. Barnhart, 312 F.3d
578, 588 (2d Cir. 2002)). The ALJ's decision need not reconcile every shred of evidence in the
record. See Barringer v. Comm'r of Soc. Sec., 358 F. Supp. 2d 67, 78-79 (N.D.N.Y. 2005)
(citations omitted).
In rendering her decision, the ALJ provided an in depth explanation of the specific
evidence relied upon, its source, and, where appropriate, the reasons why conflicting evidence
was resolved in a particular direction. See T. at 15-16. Specifically, after considering Dr. Stang's
opinion that Plaintiff had marked limitations in social functioning, the ALJ decided to discredit
this determination because "[t]he evidence and the claimant's statements reflect a moderate
limitation in this functional area." See id. It is permissible for the ALJ to exercise this level of
discretion so long as the record clearly states that the ALJ also considered the unfavorable
evidence. See Credle, 2012 WL 4174889, at *17. Accordingly, Magistrate Judge Baxter
properly concluded that the ALJ's step-three determination was supported by substantial
evidence. See Dkt. No. 13 at 12.

C.

Assessment of medical evidence
The ALJ found that Plaintiff possessed the RFC to "perform a full range of work at all

exertional levels[,]" but was "limited to performing simple, routine, and repetitive tasks . . . not at
a production rate (an assembly line) pace." T. at 16. The ALJ found that Plaintiff was limited to
"simple work-related decisions," and can "occasionally respond appropriately to supervisors and
coworkers but never to the public." Id. In reaching this conclusion, the ALJ gave "great weight"
to state agency psychiatric consultant, Dr. M. Totin's opinion that Plaintiff could perform low
contact work, finding that it was "consistent with the medical evidence." See id. at 19.
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Plaintiff argues that Magistrate Judge Baxter "incorrectly concluded" that the ALJ
properly assigned great weight to Dr. Totin's opinion. See Dkt. No. 14 at 6. Plaintiff contends
that Dr. Totin failed to provide a factual basis for his conclusion, see id. at 5, and that the ALJ
should have instead given great weight to the March 2013 medical source statement by Dr. Stang,
who had commenced a treating physician relationship with Plaintiff in March of 2012, see Dkt.
No. 13 at 17.
Magistrate Judge Baxter found Plaintiff's arguments unpersuasive because Dr. Totin cited
"[Dr. Stang's] 2011 consultative exam and plaintiff's description of his own symptoms as the basis
for his opinion." See id. at 16. Magistrate Judge Baxter further found that the ALJ did not err in
assigning minimal weight to Dr. Stang's 2013 opinion because that opinion was inconsistent with
the consultative exam and the rest of the record. See id. at 18.
"Although the treating physician rule generally requires deference to the medical opinion
of a claimant's treating physician, the opinion of the treating physician is not afforded controlling
weight where . . . the treating physician issued opinions that are not consistent with other
substantial evidence in the record . . . ." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004)
(internal and other citations omitted). The ALJ must properly analyze the reasons that the report
is rejected, see id. at 32-33, and may not arbitrarily substitute her own judgment for competent
medical opinion, see Rosa v. Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (citations ommitted).
Here, substantial evidence supported Dr. Totin's conclusion that Plaintiff could perform
low contact work because, as discussed above, it was based on Plaintiff's 2011 consultative exam
and his own description of his symptoms. See Dkt. No. 13 at 16. This report differs from Dr.
Stang's 2013 opinion regarding Plaintiff's abilities, wherein he described marked and extreme
limitations in a number of categories. See T. at 348-50. As Dr. Stang's 2013 opinion is
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inconsistent with other substantial evidence in the record, Magistrate Judge Baxter properly found
that it is not entitled to controlling weight. Further, the ALJ properly described the reasons that
the 2013 report was rejected. See. T. at 19. After describing the contents of the two opinions, the
ALJ explained that the statements would receive minimal weight because "they contradict each
other," and the record evidence does not explain "how the claimant's conditions devolved between
December 2011 and March 2013." See id. As such, Magistrate Judge Baxter correctly concluded
that "the ALJ appropriately evaluated the conflicting medical evidence, and made an RFC finding
that was consistent with the overall record." Dkt. No. 13 at 19.

IV. CONCLUSION
Having reviewed Magistrate Judge Baxter's January 21, 2016 Report-Recommendation,
the parties' submissions and the applicable law, the Court finds that Magistrate Judge Baxter
correctly recommended that the ALJ's decision be affirmed and this case be dismissed. As
Magistrate Judge Baxter found, the ALJ's determination that Plaintiff was not disabled from June
15, 2001 through the date of the decision was supported by substantial evidence and applied the
correct legal standards.
Accordingly, the Court hereby
ORDERS that Magistrate Judge Baxter's January 21, 2016 Report-Recommendation is
ADOPTED in its entirety for the reasons set forth therein; and the Court further
ORDERS that the Commissioner's decision is AFFIRMED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in the Commissioner's favor
and close this case; and the Court further

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ORDERS that the Clerk of the Court shall serve a copy of this Memorandum-Decision
and Order on all parties in accordance with the Local Rules.
IT IS SO ORDERED.
Dated: March 29, 2016
Albany, New York

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