Johnston v. Colvin

Filing 32

ORDER adopting 29 Report and Recommendations 27 Motion for Judgment on the Pleadings filed by Carolyn W. Colvin, 14 Motion for Judgment on the Pleadings filed by Sophia Johnston. The Court adopts the R&R. The Clerk of the Court is respectfully directed to enter judgment accordingly and to terminate the case. (Signed by Judge Valerie E. Caproni on 3/18/2015) (spo)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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SOPHIA JOHNSTON,
:
:
:
Plaintiff,
:
:
-against:
CAROLYN W. COLVIN, Acting Commissioner :
:
of Social Security,
:
Defendant. :
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USDC SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC #:
DATE FILED: 3/18/2015

13-CV-2710 (VEC) (FM)
ORDER

VALERIE CAPRONI, United States District Judge:
On due consideration, after review of Chief Magistrate Judge Maas’s Report and
Recommendation dated February 13, 2015 (the “R&R”), the Plaintiff’s Objections to the R&R,
and the Defendant’s Response to Plaintiff’s Objections, the R&R is approved and adopted. The
parties’ familiarity with the facts and various prior decisions in this matter is assumed; the record
is discussed only as necessary to address the Plaintiff’s objections.
In reviewing final decisions of the Social Security Administration (“SSA”), courts
“‘conduct a plenary review of the administrative record to determine if there is substantial
evidence, considering the record as a whole, to support the Commissioner’s decision and if the
correct legal standards have been applied.’” McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir.
2014) (quoting Kohler v. Astrue, 546 F.3d 260, 264-65 (2d Cir. 2008)). “‘Substantial evidence’
is ‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.’” Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013)
(per curiam) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)).
“A district court reviewing a magistrate judge’s report and recommendation ‘may accept,
reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.’” Bradley v. Comm’r of Soc. Sec., No. 12-CV-7300(ER), 2015 WL 1069307, at *1
(S.D.N.Y. Mar. 11, 2015) (quoting 28 U.S.C. § 636(b)(1)). Courts review “those parts of the
Report to which objections are made de novo, and the remaining parts for ‘clear error on the face
of the record.’” Cruz v. Colvin, No. 13-CV-1267(WHP), 2014 WL 5089580, at *1 (S.D.N.Y.
Sept. 25, 2014) (quoting 28 U.S.C. § 636(b)(1)). “Objections that reiterate arguments considered
and rejected by the magistrate are reviewed for clear error.” Id. (citing O’Callaghan v. N.Y.
Stock Exchange, No. 12-CV-7247(AJN), 2013 WL 3984887, at *1 (S.D.N.Y. Aug. 2, 2013)).
In this case, the Court has thoroughly reviewed the record and has determined that there
are no clear errors in Chief Magistrate Judge Maas’s R&R. Because Plaintiff’s objections to the
R&R were all raised and thoroughly considered by Chief Magistrate Judge Maas, the absence of
clear error ends the inquiry. Even were the Court to review the record de novo, however, none of
Johnston’s three objections would be persuasive.
Johnston objects that the ALJ failed to follow the treating physician rule, which provides
that the “opinion of a treating physician on the nature or severity of a claimant’s impairments is
binding if it is supported by medical evidence and not contradicted by substantial evidence in the
record.” Selian, 708 F.3d at 418. In this case, no medical evidence supported the opinion of the
treating physician, Dr. Mazumdar, issued in 2012, that all of Johnston’s symptoms began to
manifest in “early 2003.” R. 510.1 After careful review of all relevant evidence – including Dr.
Mazumdar’s treatment notes from the period at issue and before – the ALJ found “little medical
evidence . . . that support[s] the alleged limitations and that symptoms of severe pain and fatigue
were present prior to the date last insured.” R. 28. Plaintiff has not identified medical evidence

“To be eligible to receive benefits, an applicant must be ‘insured for disability insurance benefits.’”
Kohler, 546 F.3d at 264 (quoting 42 U.S.C. § 423(a)(1)(A)) (other internal quotation marks and citation omitted).
Here, Johnston must demonstrate that she had a disability before March 31, 2007, which is the date she was last
insured.
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that contradicts the ALJ’s determination but instead asserts that – in the absence of any relevant
evidence – Dr. Mazumdar’s ex post diagnosis should be given controlling weight. See Pl. Obj. at
2 (citing 20 C.F.R. § 404.1527(c)(2) and Social Security Ruling (“SSR”) 96-2p, 1996 WL
374188). The ALJ carefully reviewed all of the contemporaneously-issued medical reports and
concluded, inter alia, that the absence of evidence of severe symptoms in Johnston’s numerous
medical reports from the relevant period contradicted the ex post assessment that the symptoms
had been present since “early 2003.” R. 27. See O’Brien v. Colvin, No. 13-CV-91(DLI), 2014
WL 4416952, at *12 (E.D.N.Y. Sept. 8, 2014) (“The ALJ was entitled to rely on the lack of
findings regarding Plaintiff’s physical capabilities . . .”) (citing Dumas v. Schweiker, 712 F.2d
1545, 1553 (2d Cir. 1983)). Accordingly, the ALJ was not required to afford Dr. Mazumdar’s ex
post opinion controlling weight; the absence of any evidence supporting Dr. Mazumdar’s
opinion, including in her own notes from the treatment period, supported the ALJ’s decision to
afford Dr. Mazumdar’s opinion “little weight.” R. 28.
Johnston also challenges the ALJ’s determination that she could perform “light work”
during the relevant period. Pl. Obj. at 3-5. The ALJ relied on and cited both medical and nonmedical evidence in ascertaining Johnston’s residual functional capacity (“RFC”). R. 27-28.
Chief Magistrate Judge Maas marshaled a significant amount of evidence in the record that
supported the ALJ’s decision, R&R 14-15; Johnston’s objections do not discuss the inadequacy
of this analysis but instead reiterate the arguments that prompted this in-depth explication.
Accordingly, for the reasons given in Chief Magistrate Judge Maas’s comprehensive discussion,
the ALJ’s determination of Johnston’s RFC was supported by substantial evidence.
Finally, Johnston contends that the ALJ erred in assessing her credibility. The ALJ
indicated that Johnston’s “reliability as a historian [was] in question” and did not fully credit her
“statements concerning the intensity, persistence and limiting effects of her symptoms prior to
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the date last insured.” R. 28. In rejecting Johnston’s testimony regarding the degree to which
her symptoms (more than five years earlier) prevented her from engaging in substantial gainful
activity, the ALJ relied on evidence in the record. Although she was not engaged in substantial
gainful activity, Johnston did volunteer work and was the primary caretaker for her three young
children; Johnston did not require pain medication prior to the date last insured; and Johnston
had previously inaccurately reported the timing of other symptoms. Id.; cf. Selian, 708 F.3d at
420 (“The ALJ set forth specific reasons for why []he found [the claimant’s] testimony not
credible and an ALJ’s credibility determination is generally entitled to deference on appeal.”).
The ALJ’s determination was supported by substantial evidence; accordingly, the Court adopts
the R&R.
The Clerk of the Court is respectfully directed to enter judgment accordingly and to
terminate the case.

SO ORDERED.
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VALERIE CAPRONI
I
United States District Judge

Date: March 18, 2015
New York, NY

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