Michaels v. Commissioner of Social Security

Filing 28

ORDER ADOPTING REPORT AND RECOMMENDATION for 21 Report and Recommendations. Accordingly, the Court adopts the Report in its entirety, and IT IS HEREBY ORDERED that Plaintiffs motion for judgment on the pleadings is DENIED, Defendant's mot ion for judgment on the pleadings is GRANTED, and the Commissioner's denial of benefits is AFFIRMED. The Clerk of the Court is respectfully directed to terminate the motions pending at docket numbers 10 and 16, and to close this case. (Signed by Judge Richard J. Sullivan on 5/15/2014) (cd)

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USDSSDNY
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

I
DA YID MICHAELS,
Plaintiff,

DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: S /11/1 "I

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No. 12 Civ. 9213 (RJS) (GWG)
ORDER ADOPTING
REPORT AND RECOMMENDATION

-v-

CAROLYN W. COLVIN,
Acting Commissioner of Social Security,
Defendant.

RICHARD J. SULLIVAN, District Judge:
On December 18, 2012, Plaintiff David Michaels filed this action pursuant to 42 U.S.C. §
405(g) to obtain judicial review of the final decision of Defendant Commissioner of Social
Security Administration ("Commissioner") denying his claims for Disability Insurance under the
Social Security Act. (Doc. No. 1.) On March 20, 2013, the Court referred this matter to the
Honorable Gabriel W. Gorenstein, Magistrate Judge, for a Report and Recommendation. (Doc.
No. 4.) On June 5, 2013, and November 13, 2013, respectively, Plaintiff and Defendant each
moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil
Procedure. (Doc. Nos. 10 & 16.)
On February 19, 2014, Judge Gorenstein issued a Report and Recommendation (the
"Report"), recommending that (1) Plaintiffs motion be denied, and (2) Defendant's motion be
granted. In the Report, Judge Gorenstein advised the parties that failure to file timely objections
to the Report would constitute a waiver of those objections. See 28 U.S.C. § 636(b)(l)(C); Fed.
R. Civ. P. 72(b). On March 10, 2014, the Court entered an Order adopting the Report in its entirety,
granting the Defendant's motion for judgment on the pleadings, denying Plaintiffs motion for

judgment on the pleadings, and affirming the Commissioner's denial of benefits. (Doc. No. 22.)
On the same day, Plaintiff filed his objections (hereinafter, "Objections" or "Obj.") to the Report,
asking the Court to consider them as timely filed or to accept them nunc pro tune. (Doc. Nos. 2324.) On March 13, 2014, the Court directed the Commissioner to respond to the Objections. (Doc.
No. 26.) On March 19, 2014, the Commissioner filed her opposition to the Objections. (Doc. No.
27.)
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)(l). The Court reviews the
Report for clear error where neither party has made any objections, but where there are objections
to determinations made in the Report, the Court will review those determinations de nova.
McDonaugh v. Astrue, 672 F. Supp. 2d 542, 547 (S.D.N.Y. 2009). However, "objections that are

merely perfunctory responses argued in an attempt to engage the district court in a rehashing of
the same arguments set forth in the original [papers] will not suffice to invoke de nova review of
the magistrate's recommendations." Molefe v. KLM Royal Dutch Airlines, 602 F. Supp. 2d 485,
487 (S.D.N.Y. 2009) (citation and internal quotation marks omitted).
As a threshold matter, the Court accepts Plaintiffs objections as timely made. Plaintiff
asserts three objections to the Report: (1) that substantial evidence does not support the finding
that he can use the computer to work on a sustained basis required for his past relevant work; (2)
that he lacks the capacity to perform light work; and (3) that his activities of daily living are not
inconsistent with his asserted functional limitations. (Obj. at 3-13.) Plaintiffs objections mirror
the arguments he made in his moving papers, simply rearranging many portions of the papers
submitted to Judge Gorenstein.

(Memorandum of Law in Support of Plaintiffs Motion for

Judgment on the Pleadings, Doc. No. 11, ("Pl. JP") at 26-34; Plaintiffs Reply Memorandum, Doc.

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No. 18, ("Pl. Reply") at 2-8.) In fact, much of the evidence Plaintiff points to is a near verbatim
rehashing of the evidence in his moving papers. (E.g., compare Obj. at 5-7 with Pl. JP at 32-33;
compare Obj. at 9 with Pl. JP at 30; compare Obj. at 8-9 with Pl. Reply at 2; compare Obj. at 11-

12 with Pl. Reply at 6-8.) Because Plaintiff reasserts the same arguments, he is not entitled to de
nova review of the Report on the basis of his filed objections. McDonaugh, 672 F. Supp. at 547;
Molefe, 602 F.Supp.2d at 487. Accordingly, the Court reviews the Report for clear error. 1

The Court finds no clear error in the thorough reasoning and conclusion set forth in Judge
Gorenstein's Report, and agrees that "given the evidence of Michaels' active lifestyle, together
with the testimony of medical expert Dr. Winkler and the other generally consistent medical
evidence, there was substantial evidence in the record to support the ALJ's finding that Michaels
could perform light work." (Report at 43.) Moreover, the Objections do not challenge the
standards that Judge Gorenstein employed or dispute the evidence Judge Gorenstein relied on;
rather, Plaintiff reargues his claim that other evidence exists in the record that supports a finding
in favor of Plaintiff. However, as Judge Gorenstein noted and the case law makes clear, the
existence of contrary evidence in the record does not suffice to find in favor of plaintiff if
substantial evidence nonetheless supports the ALJ's determination. See, e.g., Genier v. Astrue,
606 F.3d 46, 49 (2d Cir. 2010) ("Even where the administrative record may also adequately support
contrary findings on particular issues, the ALJ's factual findings must be given conclusive effect
so long as they are supported by substantial evidence.") (citation and internal quotation marks
omitted); Johnson v. Astrue, 563 F. Supp. 2d 444, 454 (S.D.N.Y. 2008) ("If the reviewing court
finds substantial evidence to support the Commissioner's final decision, that decision must be
upheld, even if substantial evidence supporting the claimant's position also exists.") (citation

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Even if the Court were to apply the de nova standard of review, it would reach the same conclusion.

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omitted); Brault v. Soc. Sec. Admin., Comm 'r, 683 F.3d 443, 448 (2d Cir. 2012) ("The substantial
evidence standard means once an ALJ finds facts, [a court] can reject those facts only if a
reasonable factfinder would have to conclude otherwise.") (emphasis in original) (citation and
internal quotation marks omitted).

Here, the ALJ' s decision that Plaintiff has the Residual

Functional Capacity to perform light work and that jobs exist in in the national economy that
Plaintiff can perform is supported by substantial evidence.
Accordingly, the Court adopts the Report in its entirety, and IT IS HEREBY ORDERED
that Plaintiffs motion for judgment on the pleadings is DENIED, Defendant's motion for
judgment on the pleadings is GRANTED, and the Commissioner's denial of benefits is
AFFIRMED. The Clerk of the Court is respectfully directed to terminate the motions pending at
docket numbers 10 and 16, and to close this case.
SO ORDERED.
DATED:

May 15, 2014
New York, New York

RIC ~RD J. SULLIVAN
UNITED STATES DISTRICT JUDGE

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