Gishey v. Colvin

Filing 22

DECISION and ORDERED, that the Report-Recommendation (Dkt. No. 19) is APPROVED and ADOPTED in its entirety; and it is further ORDERED, that the Commissioners decision is AFFIRMED; and it is further ORDERED, that Plaintiffs Complaint (Dkt. No. 1) is DISMISSED; and it is further ORDERED, that the Clerk of the Court close this case. Signed by Senior Judge Lawrence E. Kahn on March 31, 2015. (sas)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
BILLY JO GISHEY,
Plaintiff,
-against-

8:13-CV-1036 (LEK/ATB)

CAROLYN W. COLVIN,
Commissioner of Social Security,
Defendant.
___________________________________
DECISION and ORDER
This matter comes before the Court following a Report-Recommendation filed on February
23, 2015, by the Honorable Andrew T. Baxter, U.S. Magistrate Judge, pursuant to 28 U.S.C.
§ 636(b) and Local Rule 72.3. Dkt. No. 19 (“Report-Recommendation”). Plaintiff Billy Jo Gishey
(“Plaintiff”) timely filed Objections. Dkt. No. 20 (“Objections”). Defendant Carolyn Colvin
(“Defendant”) filed a Response on March 23, 2015. Dkt. No. 21 (“Response”). However, because
the Response was filed well after the deadline of March 12, 2015, and Defendant did not seek leave
of the Court for an extension of time, the Response will not be considered. Nonetheless, for the
reasons that follow, the Report-Recommendation is adopted in its entirety, and Plaintiff’s Complaint
is dismissed.
Within fourteen days after a party has been served with a copy of a magistrate judge’s reportrecommendation, the party “may serve and file specific, written objections to the proposed findings
and recommendations.” FED. R. CIV. P. 72(b); L.R. 72.1(c). If no objections are made, or if an
objection is general, conclusory, perfunctory, or a mere reiteration of an argument made to the
magistrate judge, a district court need review that aspect of a report-recommendation only for clear

error. Chylinski v. Bank of Am., N.A., 434 F. App’x 47, 48 (2d Cir. 2011); Barnes v. Prack, No.
11-CV-0857, 2013 WL 1121353, at *1 (N.D.N.Y. Mar. 18, 2013); Farid v. Bouey, 554 F. Supp. 2d
301, 306-07 & n.2 (N.D.N.Y. 2008); see also Machicote v. Ercole, No. 06 Civ. 13320, 2011 WL
3809920, at *2 (S.D.N.Y. Aug. 25, 2011) (“[E]ven a pro se party’s objections to a Report and
Recommendation must be specific and clearly aimed at particular findings in the magistrate’s
proposal, such that no party be allowed a second bite at the apple by simply relitigating a prior
argument.”).
Plaintiff argues that Judge Baxter erred in finding that the administrative law judge’s
(“ALJ”) failure to consider and make findings with respect to Dr. Medved’s opinion that Plaintiff
could only “occasionally” do overhead reaching and reaching in other directions was harmless error.
Objs. at 1. The Court notes that this argument was previously made before Judge Baxter, see Dkt.
No. 15 (“Plaintiff Brief”) at 2, 7-8, and therefore the Court reviews that aspect of the ReportRecommendation for clear error, see Chylinski, 434 F. App’x at 48.
Although Plaintiff’s Objections are not clearly delineated, Plaintiff appears to make the
following three arguments, which the Court addresses in turn. First, Plaintiff argues that Judge
Baxter incorrectly found that the checked box on the residual function capacity (“RFC”) form was
the only evidence on record that Plaintiff was limited in her overhead and other reaching. See Objs.
at 1. However, Plaintiff has failed to refute Judge Baxter’s finding by referencing any facts in the
record indicating such a limitation. Plaintiff asserts that “it is undisputed that [Plaintiff] had
significant medical problems in her lumbar spine which required surgery in 2011. It is also
established that the surgery did not completely relieve [Plaintiff’s] back problems. As such there
was a medical abnormality that was the basis of Dr. Medved’s opinions.” Id. at 1-2. However, this
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assertion of a “medical abnormality” is wholly conclusory and does not indicate any medical
evidence in the record to support Plaintiff’s argument. Moreover, Plaintiff later states that “the
absence of any complaints in treatment notes of difficulty reaching is not unusual especially since an
individual would not normally do reaching activities for up to one-third of an 8 hour period of time,
(or approximately 2 and a half hours), outside of a work setting.” Id. at 2. However, Plaintiff’s
attempt to explain why the record lacks medical evidence of her reaching limitations is again wholly
conclusory and fails to provide a basis upon which to reject Judge Baxter’s finding. Furthermore,
Plaintiff’s assertion that Judge Baxter used Plaintiff’s statement that “whether she had problems
reaching ‘depends on how [she is] reaching’ as evidence that contradicts Dr. Medved’s opinion,” is
a mischaracterization of the Report-Recommendation. See Objs. at 2-3 (citing Report-Rec. at 13).
In fact, the Report-Recommendation notes that Plaintiff’s statement was the only other instance in
the record related to her reaching limitation; however, the Report-Recommendation also notes that
“Dr. Medved’s own treatment notes never reference any limitations on [P]laintiff’s ability to reach,”
and the same was true of Dr. Flimlin’s and Dr. Waseff’s reports. Report-Rec. at 13. Therefore,
Plaintiff’s first argument is without merit.
Plaintiff next argues that Judge Baxter incorrectly applied the treating physician rule. Objs.
at 2. Specifically, Plaintiff asserts that because the ALJ gave “great weight” to many of Dr.
Medved’s opinions—due to her longstanding treatment relationship with Plaintiff—similar weight
should have been afforded to Dr. Medved’s checked box regarding Plaintiff’s reaching limitation.
Id. However, Plaintiff’s argument is misplaced because the treating physician rule concerns whether
a treating physician’s medical opinion should be afforded controlling weight, or whether her
opinions may be rejected. See Halloran v. Barnhart, 362 F. 3d 28, 32 (2d Cir. 2004). Here, the
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issue is that the ALJ failed to even consider the checked box on Plaintiff’s reaching limitation,
which in and of itself may have constituted legal error. See Report-Rec. at 12-14; see also id. at 13
(noting that the “ALJ arguably erred in not explicitly addressing the finding of Dr. Medved
regarding [P]laintiff’s ability to reach, and in not specifying, in his RFC determination, what
limitations, if any, [P]laintiff had with respect to reaching”). Yet, the checked box was neither
given controlling weight nor rejected, and thus Plaintiff’s argument regarding application of the
treating physician rule is irrelevant.
Plaintiff’s final argument is that Judge Baxter incorrectly relied on Kennedy v. Astrue, 343
F. App’x 719 (2d Cir. 2009), in concluding that remand was not necessary to address the ALJ’s
failure to consider the checked box and explain in his RFC determination Plaintiff’s reaching
limitations. See Objs. at 3-4. In Kennedy, the court acknowledged that the ALJ “fail[ed] to make
specific findings regarding [plaintiff’s] ability to reach,” yet emphasized that the claimant bears the
burden of proof on establishing RFC, and ultimately concluded that “apart from Dr. Steele’s
perfunctory, post hoc notation . . . [plaintiff] has identified no record evidence that would support a
claim that [plaintiff] was limited in her reaching ability.” 343 F. App’x at 721. Judge Baxter found
that, similarly, here the record includes only one “perfunctory, post hoc notation”—the checked box
by Dr. Medved regarding Plaintiff’s reaching limitation—and Plaintiff has not identified any record
evidence that would support her claim. Report-Rec. at 14.
Plaintiff argues that Kennedy is distinguishable from this case because, in Kennedy, the
post-hoc notation was made by a physician whose opinions were contradicted by the findings of
every other physician on the record. Objs. at 3. However, Plaintiff’s argument conflates and
mischaracterizes the court’s conclusions in Kennedy. Plaintiff’s argument speaks to the Kennedy
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court’s application of the treating physician rule, which the court addressed after it had already, and
independently, addressed the issue of the post-hoc notation. See 343 F. App’x at 721-22. To be
sure, the Kennedy court’s finding was strengthened by the fact that the post-hoc notation was
contradicted by the other medical evidence in the record. See id. However, again, the court did not
rely on this aspect in finding remand unnecessary, and therefore Plaintiff has failed to demonstrate
that Judge Baxter committed clear error in following Kennedy.
There being no further objections, the Court has reviewed the remainder of the ReportRecommendation for clear error and has found none.
Accordingly, it is hereby:
ORDERED, that the Report-Recommendation (Dkt. No. 19) is APPROVED and
ADOPTED in its entirety; and it is further
ORDERED, that the Commissioner’s decision is AFFIRMED; and it is further
ORDERED, that Plaintiff’s Complaint (Dkt. No. 1) is DISMISSED; and it is further
ORDERED, that the Clerk of the Court close this case; and it is further
ORDERED, that the Clerk of the Court serve a copy of this Decision and Order on the
parties in accordance with the Local Rules.
IT IS SO ORDERED.
DATED:

March 31, 2015
Albany, New York

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