Angela Marie Dusharm v. Commissioner of Social Security

Filing 20

DECISION AND ORDER accepting and adopting Magistrate Judge's Report and Recommendation affirming the Commissioner's step two severity determination; and the Magistrate Judge's Report and Recommendation is otherwise rejected. The Commissioner's determination is VACATED, and the matter is REMANDED to the Commissioner of Social security for further proceedings consistent with this order. Signed by Chief Judge Glenn T. Suddaby on 3/31/16. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________________
ANGELA MARIE DUSHARM,
Plaintiff,
v.

7:14-CV-1562
(GTS/WBC)

CAROLYN W. COLVIN,
Acting Commissioner of Social Security
Defendant.
______________________________________________
APPEARANCES:

OF COUNSEL:

CONBOY, McKAY, BACHMAN & KENDALL
Counsel for Plaintiff
407 Sherman Street
Watertown, NY 13601-9990

PETER L. WALTON, 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

JOSHUA L. KERSHNER, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by Angela Marie Dusharm
(“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 a
United States Magistrate Judge 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.)

I.

PLAINTIFF’S OBJECTIONS
Generally, Plaintiff makes three arguments in objection to the Magistrate Judge’s Report

and Recommendation.
First, Plaintiff argues that the Court should reject the Magistrate Judge’s finding that the
Administrative Law Judge (“ALJ”) committed only harmless error by failing to find that
Plaintiff’s migraine headaches were a severe impairment at step two (because the ALJ clearly
considered Plaintiff’s headaches at step two and elsewhere in her decision). (Dkt. 19 at 1-3.)
More specifically, Plaintiff argues that the Magistrate Judge’s recommendation should be
rejected because (1) the ALJ did not reference Plaintiff’s headaches or migraine symptoms at
step two, other than to note that her neurosurgeon believed that a disc herniation at C5-6 “caused
her headaches,” (2) the ALJ did not consider whether Plaintiff’s migraine headaches were a
severe impairment in and of themselves, despite medical evidence of Plaintiff’s repeated
treatment for migraine headaches, including (a) hospitalizations at Samaritan Medical Center and
SUNY Upstate Hospital, and (b) treatment with Abdul Latif, M.D., at North Country Neurology.
(Id.)
Second, Plaintiff argues that the Court should reject the Magistrate Judge’s finding that
the ALJ properly afforded little weight to the opinion of treating neurosurgeon, Walter Hall,
M.D., (in part because “an ALJ is permitted to take into account the frequency, length, nature
and extent of treatment”) because the ALJ’s reasoning (that Dr. Hall’s opinion of December
2012 was stale and that he never treated her for back pain) was factually inaccurate. (Id. at 3-5.)
More specifically, Plaintiff argues that (1) Dr. Hall’s opinion, dated December 6, 2012, was
rendered only 22 days after he last examined Plaintiff and was therefore contemporaneous with

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his last examination and approximately a year after the alleged onset date, (2) no other medical
professional or consultative examiner had offered an opinion in the seven-month gap between
Dr. Hall’s last treatment of Plaintiff and the hearing, and (3) thus, the fact that the opinion was
rendered in December 2012 is not a reason for rejecting the opinion. (Id.) Moreover, Plaintiff
argues that (1) medical evidence of record indicates that Dr. Hall treated Plaintiff for her back
condition on April 24, 2012, June 6, 2012, and November 14, 2012, (2) the ALJ’s finding that
Dr. Hall did not treat Plaintiff for her back condition was an error of fact, and (3) the Magistrate
Judge failed to recognize this error by instead finding that, “[a]lthough Dr. Hall, or his
colleagues, noted Plaintiff’s medical history of lumbar impairments, notation of an impairment
does not equate with treatment.” (Id. at 5.)
Third, Plaintiff argues that the Court should reject the Magistrate Judge’s finding that the
ALJ properly afforded little weight to the opinion of treating neurosurgeon, Dr. Hall, because the
ALJ improperly relied on her own lay interpretation of the medical evidence to dispute Dr.
Hall’s opinion and determine that Plaintiff could perform sedentary work. (Id. at 5-6.) More
specifically, Plaintiff argues that the Magistrate Judge failed to recognize that the ALJ’s residual
functional capacity (“RFC”) determination contradicts the only two medical opinions of record
and was improperly based on the ALJ’s own lay interpretations of the medical evidence,
including MRI examinations and clinical findings. (Id.)
II.

APPLICABLE LEGAL STANDARD
When a specific objection is made to a portion of a magistrate judge's report-

recommendation, the Court subjects that portion of the report-recommendation to a de novo
review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be “specific,” the objection
must, with particularity, “identify [1] the portions of the proposed findings, recommendations,
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or report to which it has an objection and [2] the basis for the objection.” N.D.N.Y. L.R.
72.1(c).1 When performing such a de novo review, “[t]he judge may . . . receive further
evidence. . . .” 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider
evidentiary material that could have been, but was not, presented to the magistrate judge in the
first instance.2 Similarly, a district court will ordinarily refuse to consider an argument that
could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v.
State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is
established law that a district judge will not consider new arguments raised in objections to a
magistrate judge's report and recommendation that could have been raised before the magistrate
but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.
Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge
will not consider new arguments raised in objections to a magistrate judge's report and
recommendation that could have been raised before the magistrate but were not.”) (internal
quotation marks omitted).

1

See also Mario v. P&C Food Markets, Inc., 313 F.3d 758, 766 (2d Cir. 2002) (“Although Mario
filed objections to the magistrate's report and recommendation, the statement with respect to his Title VII claim was
not specific enough to preserve this claim for review. The only reference made to the Title VII claim was one
sentence on the last page of his objections, where he stated that it was error to deny his motion on the Title VII claim
‘[f]or the reasons set forth in Plaintiff's Memorandum of Law in Support of Motion for Partial Summary Judgment.’
This bare statement, devoid of any reference to specific findings or recommendations to which he objected and why,
and unsupported by legal authority, was not sufficient to preserve the Title VII claim.”).
2

See Paddington Partners v. Bouchard, 34 F.3d 1132, 1137-38 (2d Cir. 1994) (“In objecting to a
magistrate's report before the district court, a party has no right to present further testimony when it offers no
justification for not offering the testimony at the hearing before the magistrate.”) [internal quotation marks and
citations omitted]; Pan Am. World Airways, Inc. v. Int'l Bhd. of Teamsters, 894 F.2d 36, 40, n.3 (2d Cir. 1990)
(district court did not abuse its discretion in denying plaintiff's request to present additional testimony where plaintiff
“offered no justification for not offering the testimony at the hearing before the magistrate”); cf. U. S. v. Raddatz,
447 U.S. 667, 676, n.3 (1980) (“We conclude that to construe § 636(b)(1) to require the district court to conduct a
second hearing whenever either party objected to the magistrate's credibility findings would largely frustrate the
plain objective of Congress to alleviate the increasing congestion of litigation in the district courts.”); Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition (“The term ‘de novo’ does not indicate that a secondary
evidentiary hearing is required.”).

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When only a general objection is made to a portion of a magistrate judge's
report-recommendation, the Court subjects that portion of the report-recommendation to only a
clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition; see also Brown v. Peters, 95-CV-1641, 1997 WL 599355, at *2-3
(N.D.N.Y. Sept. 22, 1997) (Pooler, J.) [collecting cases], aff'd without opinion, 175 F.3d 1007
(2d Cir. 1999). Similarly, when an objection merely reiterates the same arguments made by the
objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review.3 Finally, when no objection is made to a portion of a report-recommendation, the Court
subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P.
72(b), Advisory Committee Notes: 1983 Addition. 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.” Id.4
After conducing the 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).

3

See Mario, 313 F.3d at 766 (“Merely referring the court to previously filed papers or arguments
does not constitute an adequate objection under either Fed. R. Civ. P. 72(b) or Local Civil Rule 72.3(a)(3).”);
Camardo v. Gen. Motors Hourly-Rate Emp. Pension Plan, 806 F. Supp. 380, 382 (W.D.N.Y. 1992) (explaining that
court need not consider objections that merely constitute a "rehashing" of the same arguments and positions taken in
original papers submitted to the magistrate judge); accord, Praileau v. Cnty. of Schenectady, 09-CV-0924, 2010 WL
3761902, at *1, n.1 (N.D.N.Y. Sept. 20, 2010) (McAvoy, J.); Hickman ex rel. M.A.H. v. Astrue, 07-CV-1077, 2010
WL 2985968, at *3 & n.3 (N.D.N.Y. July 27, 2010) (Mordue, C.J.); Almonte v. N.Y.S. Div. of Parole, 04-CV-0484,
2006 WL 149049, at *4 (N.D.N.Y. Jan. 18, 2006) (Sharpe, J.).
4

See also Batista v. Walker, 94-CV-2826, 1995 WL 453299, at *1 (S.D.N.Y. July 31, 1995)
(Sotomayor, J.) (“I am permitted to adopt those sections of [a magistrate judge's] report to which no specific
objection is made, so long as those sections are not facially erroneous.”) (internal quotation marks and citations
omitted).

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III.

ANALYSIS
The Court finds that Plaintiff’s first objection (as set forth above in Part I. of this

Decision and Order) merely reiterates arguments presented in her initial brief. (Compare Dkt.
No. 11 with Dkt. No. 16.) Therefore, the Court reviews the portion the Magistrate Judge’s
Report and Recommendation addressed in Plaintiff first objection for clear error only. While
Plaintiff’s second and third objections (as set forth above in Part I. of this Decision and Order)
somewhat reiterate her arguments presented in her initial brief, the Court finds that the
objections (albeit barely) constitute specific challenges to the Report and Recommendation.
(Compare Dkt. No. 19 with Dkt. No. 8.) Therefore, the Court conducts a de novo review of the
portions of the Magistrate Judge’s Report and Recommendation addressed in Plaintiff’s second
and third objections.
After carefully reviewing the relevant filings in this action, the Court accepts and adopts
the Magistrate Judge’s recommendation that the ALJ did not err in assessing the severity of
Plaintiff’s migraine headaches at step two for the reasons stated in the Magistrate Judge’s Report
and Recommendation. (Dkt. No. 18.) The Court respectfully declines to adopt the Magistrate
Judge’s recommendation that the ALJ properly assessed Dr. Hall’s opinion and the RFC for the
reasons stated in Plaintiff’s objections. (Dkt. No. 19.) To those reasons, the Court adds the
following analysis. For the ease of analysis, Plaintiff’s objections will be reorganized and
consolidated below.
A.

Whether the ALJ Erred in Assessing the Severity of Plaintiff’s Migraine
Headaches at Step Two

The Court agrees with the Magistrate Judge that the ALJ did not err in assessing the
severity of Plaintiff’s migraine headaches for the reasons stated in the Magistrate Judge’s Report

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and Recommendation. (Dkt. No. 18 at 6-8.) The Magistrate Judge employed the proper
standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.)
Accordingly, the Court accepts and adopts the Magistrate Judge’s recommendation that remand
is not required on this basis. (Id.)
B.

Whether the ALJ Erred in Assessing Dr. Hall’s Opinion and Determining
Plaintiff’s RFC

RFC is defined as
what an individual can still do despite his or her limitations . . . .
Ordinarily, RFC is the individual’s maximum remaining ability to do
sustained work activities in an ordinary work setting on a regular and
continuing basis, and the RFC assessment must include a discussion
of the individual’s abilities on that basis. A regular and continuing
basis means 8 hours a day, for 5 days a week, or an equivalent work
schedule.
Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999). “In assessing a claimant’s RFC, the ALJ must
consider all of the relevant medical and other evidence in the case record to assess the claimant’s
ability to meet the physical, mental, sensory and other requirements of work.” Domm v. Colvin,
12-CV-6640, 2013 WL 4647643, at *8 (W.D.N.Y. Aug. 29, 2013) (citing 20 C.F.R. §
404.1545[a][3]-[4]). The ALJ must consider medical opinions and facts, physical and mental
abilities, non-severe impairments, and the plaintiff’s subjective evidence of symptoms. 20
C.F.R. §§ 404.1545(b)-(e), 416.945(b)-(e). Finally, an ALJ’s RFC determination “must be set
forth with sufficient specificity to enable [the Court] to decide whether the determination is
supported by substantial evidence.” Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984).
Under the “treating physician’s rule,” controlling weight is afforded to a plaintiff’s
treating physician’s opinion when (1) the opinion is well supported by medically acceptable
clinical and laboratory diagnostic techniques, and (2) the opinion is consistent with other

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substantial evidence in the record, such as opinions of other medical experts. 20 C.F.R. §§
404.1527(c)(2), 416.927(c)(2); Halloran v. Barnhart, 362 F.3d 28, 31-32 (2d Cir. 2004);
Brogan-Dawley v. Astrue, 484 F. App’x 632, 633-34 (2d Cir. 2012).
When controlling weight is not afforded to the opinion of a treating physician, the ALJ
should consider the following factors to determine the proper weight assigned to a treating
physician’s opinion: (1) the frequency of the examinations and the length, nature and extent of
the treatment relationship; (2) the evidence in support of the opinion; (3) the opinion’s
consistency with the record as a whole; and (4) whether the opinion is from a specialist. 20
C.F.R. §§ 404.927(c), 416.927(c); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).
Regulations require an ALJ to set forth his or her reasons for the weight assigned to a treating
physician’s opinion. Shaw, 221 F.3d at 134. “In analyzing a treating physician's report, ‘the
ALJ cannot arbitrarily substitute his own judgment for competent medical opinion.’” Rosa v.
Callahan, 168 F.3d 72, 79 (2d Cir. 1999) (quoting McBrayer v. Sec’y of Health & Human Servs.,
712 F.2d 795, 799 [2d Cir. 1983]); see also Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998).
Here, the record contains medical opinions of Plaintiff’s physical limitations from (1)
consultative examiner, Elke Lorensen, M.D., and (2) treating neurosurgeon, Dr. Hall. (T. 28.)
On November 8, 2012, Dr. Lorensen opined that Plaintiff (1) had severe restrictions ambulating
and climbing stairs, (2) had moderate restrictions pushing, pulling, and reaching with the left
arm, and (3) should avoid heights and operating machinery. (T. 28-29.) The ALJ afforded some
weight to Dr. Lorensen’s opinion, “but only to the extent that it is supported by the objective
evidence of record.” (T. 29.)
On December 6, 2012, Dr. Hall opined that Plaintiff had physical work-related
limitations resulting from cervical spondylosis, lumbar spondylosis, and a cervical fusion. (T.
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354-57.) More specifically, Dr. Hall opined that Plaintiff could sit for less than six hours, stand
or walk for less than two hours, and frequently lift or carry less than ten pounds in an eight-hour
workday. (T. 354-55.) Dr. Hall opined that Plaintiff could occasionally reach during an eighthour workday, but could never climb, balance, kneel, crouch, crawl, or stoop. (Id.)
The ALJ afforded little weight to Dr. Hall’s opinion, reasoning that (1) Dr. Hall had not
seen Plaintiff since November 2012 (approximately seven months before the hearing), and did
not treat Plaintiff for her back condition (but merely noted a medical history of lumbar
impairment), (2) Plaintiff’s neck condition improved after surgery, and “the clinical findings
prior to the surgery show that it was not as debilitating as Dr. Hall’s opinion suggests” (noting
that, during Dr. Lorensen’s consultative examination, Plaintiff “had full range of motion of her
cervical spine”), and (3) Plaintiff reported to Dr. Lorensen that she cooks and cleans every day
and shops regularly, “which suggests that she was able to lift or carry at least ten pounds and use
her upper extremities for reaching and fine and gross manipulation.” (T. 28.)
Accordingly, the ALJ improperly relied on her own view of the clinical findings to
discredit Dr. Hall’s opinion. (T. 28.) The ALJ failed to cite, and the record does not contain, a
medical opinion to dispute Dr. Hall’s opinion that Plaintiff could not perform sedentary work.
(Id.) The ALJ cited Dr. Lorensen’s examination note that Plaintiff had full range of motion of
her cervical spine, however Dr. Lorensen’s opinion indicated that Plaintiff could not perform
sedentary work. (Id.)
“The ALJ is not permitted to substitute his own expertise or view of the medical proof for
the treating physician’s opinion or for any competent medical opinion.” Greek v. Colvin, 802
F.3d 370, 375 (2d Cir. 2015), accord, Rosa, 168 F.3d at 79 (“In analyzing a treating physician’s
report, ‘the ALJ cannot arbitrarily substitute his own judgment for competent medical
9

opinion.’”) (quoting McBrayer, 712 F.2d at 799); Balsamo, 142 F.3d at 81 (“[W]hile an [ALJ] is
free to resolve issues of credibility as to lay testimony or to choose between properly submitted
medical opinions, he is not free to set his own expertise against that of a physician who
[submitted a medical opinion to] or testified before him . . . . In the absence of supporting expert
medical opinion, the ALJ should not have engaged in his own evaluations of the medical
findings.”).
Here, for example, the ALJ found that MRI examinations of Plaintiff’s cervical and
lumbar spine in September 2010 and December 2011 “showed some degenerative changes,” but
did not support “Plaintiffs’s allegations regarding the severity of her condition.” (T. 26.) The
ALJ also disputed physicians’ findings that Plaintiff’s gait was “stiff” and “antalgic” based on
her own lay interpretation of the MRI results:
While the claimant’s gait is at times normal and at other times stiff
and antalgic, the MRI performed in December 2011 showed only
diffuse disc bulges at the L4-L5 and L5-S1 levels with minimal thecal
sac compression at the L4-L-5 level and no thecal sac or nerve
compression at the L5-S1 level. These findings would not be
expected to cause such a significant disturbance in gait.
(T. 26) (internal citations to the record omitted). The ALJ further relied on her own lay
interpretation of medical evidence in stating that an MRI examination of Plaintiff’s lumbar spine
performed in 2012 “showed only mild degenerative disc changes at the L4-L5 level with no
nerve root compression, no canal stenosis and no foraminal stenosis. The MRI did not show
significant interval changes to explain the claimant’s reported increase in symptoms.” (T. 27.)
Finally, the ALJ relied on her own lay interpretation of the medical evidence in assessing
Plaintiff’s physical limitations and determining that “the clinical findings suggest that her neck
and back impairments were not so debilitating that she could not meet the exertional demands of

10

sedentary work.” (T. 26.) More specifically, the ALJ determined that Plaintiff had the RFC to
perform “the full range of sedentary work,” including the abilities to “lift, carry, push, and pull
ten pounds occasionally, sit for six hours in an eight-hour workday, and stand and/or walk for
two hour in an eight-hour day.” (T. 25.) Therefore, the ALJ’s RFC indicates that Plaintiff has
greater physical abilities than opined by any medical opinion of record, most notably in walking.
(T. 25, 28.) As discussed above, Plaintiff’s treating neurosurgeon, Dr. Hall, opined that Plaintiff
could walk for less than two hours during an eight-hour workday, and consultative examiner, Dr.
Lorensen, opined that Plaintiff had severe restrictions ambulating. (T. 28.)
While the Court is inclined to agree with Plaintiff’s remaining objections regarding the
ALJ’s decision to afford little weight to Dr. Hall’s opinion, the Court need not reach those
objections due to the aforementioned omission. See Balsamo, 142 F.3d at 81 (“We need not
address whether the treating physicians’ opinions bound the ALJ under § 404.1527(d)(2)
because in this case the Commissioner failed to offer and the ALJ did not cite any medical
opinion to dispute the treating physicians’ conclusion that . . . [the plaintiff] could not perform
sedentary work. In the absence of a medical opinion to support the ALJ’s finding as to . . . [a
plaintiff’s] ability to perform sedentary work, it is well settled that ‘the ALJ cannot arbitrarily
substitute his own judgment for a competent medical opinion.’”).
Moreover, even if the ALJ’s assessment of the opinion evidence was proper, the ALJ’s
RFC determination was not supported by substantial evidence based on the current record. See
id., at 81-82 (finding that the ALJ’s determination that the plaintiff could perform sedentary
work was not supported by substantial evidence in the absence of a medical opinion indicating
that the plaintiff could perform sedentary work); House v. Astrue, 11-CV-0915, 2013 WL
422058, at *4 (N.D.N.Y. Feb. 1, 2013) (holding that remand was necessary where there was no
medical source opinion supporting the ALJ’s RFC determination).
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The Court recognizes that, “where the medical evidence shows relatively little physical
impairment, an ALJ permissibly can render a common sense judgment about functional capacity
even without a physician's assessment.” House, 2013 WL 422058, at *4 (internal citation and
quotation marks omitted). However, that is not the case in the present matter because the
ALJ determined that Plaintiff’s degenerative disc disease of the cervical spine (status post
discectomy and fusion surgery) and degenerative disc disease of the lumbar spine were severe
impairments. (T. 23.) Further, both medical opinions of record indicated that Plaintiff could not
meet the exertional demands of sedentary work, most notably sitting for two hours during an
eight-hour workday. (T. 28-29.)
For the forgoing reasons, remand is required for the ALJ to reevaluate the medical
opinions of record and reevaluate Plaintiff’s RFC.
ACCORDINGLY, it is
ORDERED that the portion of the Magistrate Judge’s Report and Recommendation
affirming the Commissioner’s step two severity determination (Dkt. No. 18) is ACCEPTED and
ADOPTED; and it is further
ORDERED that the Magistrate Judge’s Report and Recommendation is otherwise
REJECTED; and it is further
ORDERED that the Commissioner’s determination is VACATED; and it is further
ORDERED that the matter is REMANDED to the Commissioner of Social Security for
further proceedings consistent with this Order.
Dated: March 31, 2016
Syracuse, New York

____________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

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