Rothstein v. Kijakazi

Filing 26

ORDER ON REPORT & RECOMMENDATION: It is ORDERED that the Report & Recommendation is ACCEPTED; The Commissioner's motion for a judgment on the pleadings is GRANTED; Plaintiff's motion for a judgment on the pleadings is DENIED; The Commissioner's final decision is AFFIRMED; and Plaintiff's complaint is DISMISSED. Signed by Judge David N. Hurd on January 17, 2023. (ztc)

Case 6:21-cv-00881-DNH-DEP Document 26 Filed 01/17/23 Page 1 of 4

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
-------------------------------KEVIN R.,
Plaintiff,
-v-

6:21-CV-881

COMMISSIONER OF
SOCIAL SECURITY,
Defendant.
-------------------------------APPEARANCES:

OF COUNSEL:

OFFICE OF PETER
M. HOBAICA, LLC
Attorneys for Plaintiff
2045 Genesee Street
Utica, NY 13501

B. BROOKS BENSON, ESQ.

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

AMY BLAND, ESQ.
Special Ass’t U.S. Attorney

DAVID N. HURD
United States District Judge

Case 6:21-cv-00881-DNH-DEP Document 26 Filed 01/17/23 Page 2 of 4

ORDER ON REPORT & RECOMMENDATION
On August 4, 2021, plaintiff Kevin R. 1 (“plaintiff”) filed this action seeking
review of the final decision of defendant Commissioner of Social Security
(“Commissioner” or “defendant”) denying his application for Disability
Insurance Benefits (“DIB”) under the Social Security Act (the “Act”).
The Commissioner filed a certified copy of the Administrative Record, Dkt.
No. 10, and both parties briefed the matter in accordance with General Order
18, which provides that an appeal taken from the Commissioner’s decision
denying benefits will be treated as if the parties have filed cross-motions for a
judgment on the pleadings, Dkt. Nos. 13, 18.
On November 9, 2022, shortly after hearing oral argument on the parties’
cross-motions, U.S. Magistrate Judge David E. Peebles advised in a thorough,
thirty-seven-page Report & Recommendation (“R&R”) that (1) the
Commissioner’s motion should be granted, (2) plaintiff’s motion be denied,
(3) the Commissioner’s final decision be affirmed, and (4) plaintiff’s complaint
be dismissed. Dkt. No. 21. Plaintiff has filed objections, Dkt. No. 24, which
have now been fully briefed, Dkt. No. 25.

1 In accordance with a May 1, 2018 memorandum issued by the Judicial Conference’s

Committee on Court Administration and Case Management and adopted as local practice in this
District, only the first name and last initial of plaintiff will be mentioned in this opinion.
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Case 6:21-cv-00881-DNH-DEP Document 26 Filed 01/17/23 Page 3 of 4

Upon de novo review, plaintiff’s objections must be overruled. As the
Commissioner explains in her opposition brief, plaintiff failed to show that
the ALJ erred at step two by finding that his fibromyalgia was not a
medically determinable impairment. Notably, Judge Peebles explicitly
considered this issue as part of his R&R. 2
Plaintiff’s other objections are focused less on the findings and
determinations made in the R&R and more on the underlying arguments
presented to the Magistrate Judge in the first instance. A review of these
renewed and re-framed arguments confirms that there is no good reason to
second-guess the R&R’s conclusions on these points. Accordingly, the R&R is
accepted and will be adopted in all respects. See 28 U.S.C. § 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. The Commissioner’s motion for a judgment on the pleadings is
GRANTED;
3. Plaintiff’s motion for a judgment on the pleadings is DENIED;
4. The Commissioner’s final decision is AFFIRMED; and

2 To the extent plaintiff argues that remand is necessary to further develop the record regarding

a possible diagnosis of fibromyalgia, it bears noting that neither the Act nor the Regulations obligate
an ALJ to re-contact medical providers. As the Commissioner notes, this particular issue was not
squarely presented to Judge Peebles. But even assuming otherwise, plaintiff has not shown
reversible error under the circumstances.
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Case 6:21-cv-00881-DNH-DEP Document 26 Filed 01/17/23 Page 4 of 4

5. Plaintiff’s complaint is DISMISSED.
The Clerk of the Court is directed to enter a judgment accordingly and
close the file.
IT IS SO ORDERED.
Dated: January 17, 2023
Utica, New York.

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