Zarofsky-Youker v. Colvin
Filing
20
DECISION AND ORDER accepting and adopting # 18 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 7/8/16. (lmw)
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
KATHLEEN ZAROFSKY-YOUKER,
Plaintiff,
v.
6:15-CV-0170
(GTS/WBC)
CAROLYN W. COLVIN
Commissioner of Social Security,
Defendant.
_____________________________________
APPEARANCES:
OF COUNSEL:
OFFICE OF PETER W. ANTONOWICZ
Counsel for Plaintiff
148 West Dominick Street
Rome, NY 13440
PETER W. ANTONOWICZ, 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
REBECCA H. ESTELLE, ESQ.
GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Kathleen ZarofskyYouker (“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. 18, 19.) For the reasons set forth below, the Report and
Recommendation is accepted and adopted in its entirety.
I.
PLAINTIFF’S OBJECTIONS
Generally, Plaintiff makes two arguments in objection to Magistrate Judge Carter’s
Report and Recommendation. (Dkt. No. 19, at 1-9.)
First, Plaintiff argues that Magistrate Judge Carter made unwarranted assumptions in
addressing the weight accorded to the medical opinion evidence. (Id. at 1-6.) Within this
argument, Plaintiff argues that (1) the ALJ erred in affording significant weight to the opinion of
a single decision maker, (2) Magistrate Judge Carter incorrectly stated that the ALJ afforded
significant weight, rather than some weight, to the opinion of consultative examiner, Pamela
Tabb, M.D., (3) the ALJ did not specifically address the amount of weight afforded to the
opinion of consultative psychologist, Dennis Noia, Ph.D., (4) the ALJ should have afforded
greater weight to the opinion of treating rheumatologist, Martin Morrell, M.D., and (5) the ALJ
erred in relying on the opinions of Dr. Tabb and Dr. Noia. (Id.)
Second, Plaintiff argues that Magistrate Judge Carter misconstrued Plaintiff’s argument
regarding the hiring of consultative examiners. (Id. at 6-9.) Plaintiff argues that it was
unnecessary for the ALJ to obtain purchased examinations from consultative examiners, rather
than treating sources, and therefore Dr. Tabb’s report should have been excluded from the
evidentiary file since it was improperly and unnecessarily obtained. (Id.)
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
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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 largely reiterate arguments presented in her
initial brief. (Compare Dkt. No. 19 with Dkt. No. 14.) To the extent that Plaintiff 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 incorrectly stated that the ALJ afforded significant weight to Dr. Tabb’s
opinion, Plaintiff’s point is well taken. (Dkt. No. 19, at 2 [Pl.’s Mem. of Law]) (referencing Dkt.
No. 18, at 8). However, in discussing Dr. Tabb’s opinion later in the Report and
Recommendation, Magistrate Judge Carter correctly stated that the ALJ afforded some weight to
the opinion and properly analyzed the ALJ’s weight assignment. (Dkt. No. 18, at 9-10.)
Accordingly, the misstatement of the weight afforded to Dr. Tabb’s opinion in a brief reference
to the opinion earlier in the Report and Recommendation (where the Magistrate Judge correctly
noted that the ALJ afforded significant weight to Dr. Noia’s opinion) does not require remand
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under the circumstances. The Court agrees with Magistrate Judge Carter that the ALJ did not err
in his assessment of Dr. Tabb’s opinion, and reliance on the same.
The Court finds that the balance of Plaintiff’s objections merely reiterate arguments
presented in her initial brief. (Compare Dkt. No. 19 with Dkt. No. 14.) Therefore the Court
reviews the portions of 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. 18.)
ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report and Recommendation (Dkt. No. 18) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s determination is AFFIRMED; and it is further
ORDERED that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED.
Dated: July 8, 2016
Syracuse, New York
____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge
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