Ojida v. Colvin

Filing 34

DECISION AND ORDER accepting and adopting # 27 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 3/10/17. (lmw)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________
JAMES OJIDA, JR.,
Plaintiff,
8:15-CV-1206
(GTS/WBC)

v.
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________
APPEARANCES:

OF COUNSEL:

OFFICE OF MARK A. SCHNEIDER
Counsel for Plaintiff
57 Court Street
Plattsburgh, New York 12901

MARK A. SCHNEIDER, ESQ.

SOCIAL SECURITY ADMINISTRATION
OFFICE OF REG’L GEN. COUNSEL–REGION II
Counsel for Defendant
26 Federal Plaza, Room 3904
New York, New York 10278

SANDRA M. GROSSFELD, ESQ.
Special Assistant U.S. Attorney

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this Social Security action filed by James Ojida, Jr.
(“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “Commissioner”)
seeking Disability Insurance Benefits pursuant to 42 U.S.C. § 405(g), are (1) United States
Magistrate Judge William B. Mitchell Carter’s Report-Recommendation recommending that the
Commissioner’s decision be affirmed and Plaintiff’s Complaint be dismissed in its entirety, and
(2) Plaintiff’s Objections to the Report-Recommendation. (Dkt. Nos. 27, 28.) For the reasons
set forth below, the Report-Recommendation is accepted and adopted.

I.

RELEVANT BACKGROUND
A.

Relevant Procedural History

Plaintiff was born on December 6, 1967. (T. 133.) He completed the 8th grade. (T. 332.)
Generally, Plaintiff’s alleged disability consists of nerve damage at C4-7, ruptured discs, spina
stenosis, radiculopathy of the spine, nerve damage in his arms and right leg, sciatica, diabetes,
and rheumatoid arthritis. (T. 133.) He previously worked as a floor installer. (T. 332.)
On March 4, 2011, Plaintiff applied for a period of Disability Insurance Benefits under
the Social Security Act. (T. 133.) Plaintiff’s application was initially denied, after which he
requested a hearing before an Administrative Law Judge (“ALJ”). On November 30, 2012, after
a hearing, ALJ Arthur Patane issued a written decision finding Plaintiff not disabled under the
Social Security Act. (T. 140-154.) On March 29, 2013, the Appeals Council remanded
Plaintiff’s case for further proceedings. (T. 155-158.) On April 14, 2014, after another hearing,
ALJ Patane issued a written decision again finding Plaintiff not disabled under the Social
Security Act. (T. 8-30.) On September 30, 2015, the Appeals Council denied Plaintiff’s request
for further review, rendering the ALJ’s April 2014 decision the final decision of the
Commissioner. (T. at 1-7.)
On March 28, 2014, Plaintiff commenced this action in federal court. (Dkt. No. 1.)
B.

Magistrate Judge Carter’s Report-Recommendation

Generally, in his Report-Recommendation, Magistrate Judge Carter rendered the
following four findings of fact and/or conclusions of law: (1) substantial evidence supported the
ALJ’s determination regarding Plaintiff’s residual functioning capacity (“RFC”), as well as the
ALJ’s determination to (generally) afford less weight to the opinions of Plaintiff’s treating

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sources (e.g., Jayant Jhaveri, M.D., David Dempsey, N.P., Joshua Frank, M.D.) and than to the
opinions of Plaintiff’s consultative examiners (e.g., Nader Wassef, M.D., David Welch, M.D.,
and Richard Liotta, Ph.D.); (2) substantial evidence supported the ALJ’s step-two determination
of Plaintiff’s impairments, both severe and non-severe (and, in any event, any error in failing to
failing to specifically account for Plaintiff’s fibromyalgia was harmless, given the record
evidence); (3) substantial evidence supported the ALJ’s credibility determination, because the
ALJ properly employed the two-step analysis to evaluate Plaintiff’s reported systems, and an
ALJ does not have to discuss the side effects of a claimant’s pain medication where (as here) he
discusses the claimant’s medication and the ALJ’s reasoning and adherence to the regulations is
clear; and (4) substantial evidence supported the ALJ’s step-five determination because, for the
same reason there was no error in the ALJ’s RFC assessment, he was permitted to pose a
hypothetical question to the vocation expert that was based on that assessment. (Dkt. No. 27, at
Part IV.)
C.

Plaintiff’s Objections to the Report-Recommendation

Generally, in his Objections, Plaintiff asserts fifteen arguments: (1) the Magistrate Judge
failed to give to sufficient weight to the findings and opinions of Plaintiff’s treating physician
Dr. Jhaveri; (2) the Magistrate Judge failed to give to sufficient weight to certain of the findings
and opinions of Plaintiff’s consultative examiner Dr. Wassef, and too much weight to other of
Dr. Wassef’s findings and opinions; (3) the Magistrate Judge failed to give any weight to an
electromyography (“EMG”) report of December 18, 2015; (4) the Magistrate Judge gave too
much weight to certain of the findings and opinions of consultative examiner Dr. Welch, and too
little weight to other of Dr. Welch’s findings and opinions; (5) the Magistrate Judge gave too

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little weight to certain of the findings and opinions of consultative examiner Dr. Liotta; (6) the
Magistrate Judge gave too little weight to the findings and opinions of treating psychiatrist Dr.
Frank; (7) the Magistrate Judge erred by concluding that Plaintiff’s conditions of diabetes,
cellulitis and fibromyalgia were not severe; (8) the Magistrate Judge erred by concluding that
Plaintiff was not credible regarding his limitations; (9) the Magistrate Judge erred by not giving
weight to Plaintiff’s good work history; (10) the Magistrate Judge erred by finding that the ALJ
did not have to discuss the side effects of Plaintiff’s pain medication; (11) the Magistrate Judge
erred by accepting the ALJ’s conclusion that Plaintiff had the RFC to perform light work; (12)
no reasonable person could conclude that Plaintiff was able to perform the light work identified
by the vocational expert; (13) the Magistrate Judge erred in limiting Plaintiff’s brief to 35 pages;
(14) the Magistrate Judge erred in not permitting Plaintiff to file a “sur sur reply” brief; and (15)
the Magistrate Judge erred in denying Plaintiff’s appeal. (Dkt. No. 28.)
D.

Defendant’s Response to Plaintiff’s Objections

Generally, in her response to Plaintiff’s Objections, Defendant asserts thirteen arguments:
(1) because Plaintiff’s Objections merely repeat arguments asserted in his brief in support of his
motion for judgment on the pleadings before the Magistrate Judge, the findings of fact and
conclusions of law challenged by those Objections are entitled to only a clear-error review; (2)
even if the findings of fact and conclusions of law challenged by those Objections were entitled
to de novo review, they would survive that review, for the reasons stated in Defendant’s
underlying brief before the Magistrate Judge, as well as the Report-Recommendation; (3) more
specifically, Plaintiff’s first, second, fourth, fifth and sixth objections point to no error but reveal
merely a disagreement with the Magistrate Judge’s well-considered and well-supported

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conclusions; (4) Plaintiff’s third objection is without merit because the EMG report was not
contained in the administrative record, it was not material and it was not shown to be previously
unavailable; (5) Plaintiff’s seventh objection, the Magistrate Judge extensively discussed this
issue and properly found no error in the ALJ’s analysis; (6) Plaintiff’s eighth objection, the
Magistrate Judge carefully assessed the ALJ’s credibility finding, and correctly concluded that
there was no error in it; (7) Plaintiff’s nine objection, this argument should be disregarded
because it was never made to the Magistrate Judge, and, in any event, work history is just one of
many factors appropriately considered in assessing credibility; (8) Plaintiff’s tenth objection, the
Magistrate Judge correctly found that this argument does not show any error; (9) Plaintiff’s
eleventh objection, the Magistrate Judge carefully considered the medical opinions, and correctly
found that the ALJ’s RFC assessments were supported by substantial evidence; (10) Plaintiff’s
twelfth objection, this argument is non-specific and appears to be redundant of Plaintiff’s
eleventh objection; (11) Plaintiff’s thirteenth objection, usually only 25 pages is permitted, and
in any event, Plaintiff cites no support for the proposition that the denial of a right to a 35-page
brief somehow amounts to a lack of substantial evidence for the ALJ’s findings; (12) Plaintiff’s
fourteenth objection, there is no right to a sur-sur reply, and in any event, the denial of such right
does not result in a finding of lack of substantial evidence; and (13) Plaintiff’s fifteenth objection
is both general and without basis. (Dkt. No. 33, at “Argument.”)
II.

APPLICABLE LEGAL STANDARDS
A.

Standard of Review of Magistrate Judge Carter’s Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's reportrecommendation, the Court subjects that portion of the report-recommendation to a de novo

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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, 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 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

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) (finding that 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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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).
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.

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.).
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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).
B.

Standard Governing Judicial Review of Defendant’s Decision

In Part III.A. of his Report-Recommendation, Magistrate Judge Carter correctly recited
the legal standard governing judicial review of Defendant's decision. (Dkt. No. 27, at Part III.A.)
As a result, this standard is incorporated by reference in this Decision and Order, which is
intended primarily for the review of the parties.
III.

ANALYSIS
As an initial matter, the Court notes that all of Plaintiff’s objections, except his ninth

objection (regarding his work history), either repeat arguments he made to Magistrate Judge
Carter or are only general in nature. (Compare Dkt. No. 33 [Plf.’s Obj.] with Dkt. No. 11 [Plf.’s
Brief].) As a result, each of those objections (except his ninth objection) is entitled to only a
clear-error review. See, supra, Part II.A. of this Decision and Order.
Moreover, with regard to Plaintiff’s ninth objection, the Court ordinarily refuses to
consider an argument that could have been, but was not, presented to the magistrate judge in the

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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first instance. Id. The Court exercises its discretion to do so here, for reasons of fairness to
Respondent, the efficient use of judicial resources, respect for the Federal Magistrate’s Act.
After carefully reviewing all of the papers in this action, including Magistrate Judge
Carter’s thorough Report-Recommendation, the Court can find no clear error in the
Report-Recommendation: Magistrate Judge Carter employed the proper standards, accurately
recited the facts, and reasonably applied the law to those facts. (Dkt. No. 27.) As a result, the
Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated
therein.
Moreover, even if the Court were to subject the challenged portions of the ReportRecommendation to a de novo review, it would find those portions survive that review for the
reasons stated in Defendant’s response to Plaintiff’s Objections (as well as the ReportRecommendation itself). See, supra, Parts I.B. and I.D. of this Decision and Order. The Court
would add only that it is confident from the record that the ALJ knew that (1) Plaintiff was
taking Oxycodone, (2) regular headaches were a possible side effect of Oxycodone, and (3)
Plaintiff reported having regular headaches. (See, e.g., Tr. 13-14, 90, 91, 94, 98, 105, 123, 124,
715, 718, 736, 742, 743, 747, 749.) However, the ALJ found that “the record as a whole does
not support a finding that his headaches have caused more than minimal limitations in [his]
ability to perform basic, work-related activities for a continuous period of 12 consecutive months
or more.” (T. 13.)5

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The Court notes that “[a]n ALJ’s failure to cite specific evidence does not
indicate that such evidence was not considered.” Brault v. Soc. Sec. Admin., 683 F.3d 443, 448
(2d Cir. 2012) (internal quotation marks omitted). When, as here, “the evidence of record
permits us to glean the rationale of an ALJ’s decision, we do not require that he have mentioned
every item of testimony presented to him or have explained why he considered particular
evidence unpersuasive or insufficient to lead him to a conclusion of disability.” Mongeur v.
Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983).
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ACCORDINGLY, it is
ORDERED that Magistrate Judge Carter’s Report-Recommendation (Dkt. No. 27) is
ACCEPTED and ADOPTED in its entirety; and it is further
ORDERED that the Commissioner’s decision is AFFIRMED, and Plaintiff’s Complaint
(Dkt. No. 1) is DISMISSED.
Dated: March 10, 2017
Syracuse, New York
____________________________________
HON. GLENN T. SUDDABY
United States District Judge

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