Carlson v. Commissioner of Social Security
Filing
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ORDER AND OPINION. For the reasons stated in this Order and Opinion, the Court adopts MJ Smith's R & R in its entirety. Defendant's Motion for Judgment on the Pleadings is DENIED, and the matter is remanded for further proceedings consisten t with the R & R. The Clerk of Court is respectfully directed to terminate the motion at ECF No. 16, to remand the matter for further proceedings, to mail a copy of this Opinion to Plaintiff and to show proof of service on the docket. So ordered. re: 16 FIRST MOTION for Judgment on the Pleadings filed by Commissioner of Social Security. (Signed by Judge Nelson Stephen Roman on 3/19/2018) (rjm)
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USDC §l}NY
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' DOCUMENT
ELECTTIONICALLY FILED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
DOC #: _ _ _- - . - - , - - ' ATE 'FltFD: __3.U."1 7-91!__
f
JOHN CARLSON,
Plaintiff,
14-cv-2680 (NSR)(LMS)
-against-
ORDER AND OPINION
NANCY A. BERRYHILL,
Acting as Commissioner of Social Security,
Defendant.
NELSONS. ROMAN, United States District Judge:
Plaintiff John Carlson ("Plaintiff') commenced this action, pursuant to 42 U.S.C. § 405(g),
challenging the administrative decision of the Commissioner of Social Security ("the
Commissioner"), which denied Plaintiffs applications for Social Security disability insurance
benefits ("DIB") under the Social Security Act (the "Act"). This case was referred to Magistrate
Judge Lisa M. Smith ("MJ Smith"), pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil
Procedure 72(b), to issue a Report and Recommendation ("R & R") on Defendant's motion for
judgement on the pleadings. Now before the Court is MJ Smith's R & R, recommending that
Defendant's motion be denied and the matter remanded for further administrative proceedings.
(See Docket No. 25.) For the following reasons, the Comt adopts MJ Smith's R & R in its entirety,
and Defendant's Motion for Judgment on the Pleadings is DENIED and the matter is remanded
for further proceedings.
BACKGROUND
The following facts are taken from the administrative record and the parties' submissions.
In July 2009, Plaintiff applied for DIB. Plaintiff alleged he suffered from multiple illnesses
including illnesses related to prostate cancer, Meniere's disease and his bladder. By
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co1Tespondence dated, December 10, 2009, Plaintiffs application was denied. On February 4,
2010, Plaintiff requested and was granted a hearing. Plaintiff appeared before an administrative
law judge ("ALJ") for a hearing on January 26, 2011, which resulted in a negative determination.
Plaintiff appealed to the Appeals Council, who remanded the matter for finther proceedings.
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Plaintiff appeared by counsel before the ALJ and presented additional evidence. At the conclusion
of the hearing, the ALJ denied Plaintiffs application as memorialized in a decision dated July 12,
2012. Plaintiff appealed the July 12, 2012 decision to the Appeals Council for further review. On
February 14, 2014, the Appeals Council denied Plaintiffs request. Thereafter, on April 15, 2014,
Plaintiff filed the instant action seeking to overturn the ALJ's dete1mination.
STANDARD OF REVIEW
A magistrate judge may "hear a pretrial matter dispositive of a claim or defense" if so
designated by a district court. See Fed. R. Civ. P. 72(b)(l); accord28 U.S.C. § 636(b)(l)(B). In
such a case, the magistrate judge "must enter a recommended disposition, including, if appropriate,
proposed findings of fact." Fed. R. Civ. P. 72(b)(l); accord 28 U.S.C. § 636(b)(l). Where a
magistrate judge issues a repott and recommendation,
[w]ithin fourteen days after being served with a copy, any party may serve and file
written objections to such proposed findings and recommendations as provided by
rules of court. A judge of the court shall make a de novo determination of those
p01tions of the rep01t or specified proposed findings or recommendations to which
objection is made. A judge of the comt may accept, reject, or modify, in whole or
in patt, the findings or recommendations made by the magistrate judge.
28 U.S.C. § 636(b)(l); accord Fed. R. Civ. P. 72(b)(2), (3). However, "[t]o accept the report and
recommendation of a magistrate, to which no timely objection has been made, a district court need
only satisfy itself that there is no clear e1Tor on the face of the record." Wilds v. United Parcel
Serv., Inc., 262 F. Supp. 2d 163,169 (S.D.N.Y. 2003) (quoting Nelson v. Smith, 618 F. Supp. 1186,
1189 (S.D.N.Y. 1985)); accord Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008)
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("[F]ailure to object timely to a magistrate's report operates as a waiver of any further judicial
review of the magistrate's decision.") (quoting Small v. Sec. of HHS, 892 F.2d 15, 16 (2d Cir.
1989)); see also Fed. R. Civ. P. 72 advis01y committee note (1983 Addition, Subdivision (b))
("When no timely objection is filed, the court need only satisfy itself that there is no clear error on
the face of the record in order to accept the recommendation.").
To the extent a party makes specific objections to an R & R, those paits must be reviewed
de nova. 28 U.S.C. 636(b)(l); Fed. R. Civ. P. 72(b); United States v. Male Juvenile, 121 F.3d 34,
38 (2d Cir. 1997). In a de nova review, a district court must consider the "[r]eport, the record,
applicable legal authorities, along with Plaintiffs and Defendant's objections and replies." Diaz
v. Girdich, No. 04-cv-5061, 2007 U.S. Dist. LEXIS 4592, at *2 (S.D.N.Y. Jan. 23, 2007) (internal
quotation marks omitted). But to the extent "a petition makes only general and conclusory
objections ... or simply reiterates the original arguments, the district court will review the report
and recommendations strictly for clear error." Harris v. Burge, No. 04-cv-5066, 2008 U.S. Dist.
LEXIS 22981, at *18 (S.D.N.Y. Mar. 25, 2008). The distinction turns on the whether a litigant's
claims are "clearly aimed at particulai· findings in the magistrate's proposal" or are a means to take
a "'second bite at the apple' by simply relitigating a prior argument." Singleton v. Davis, No. 03cv-1446, 2007 U.S. Dist. LEXIS 3958, at *2 (S.D.N.Y. Jan. 18, 2007) (citation omitted).
DISCUSSION
Defendant did not timely object to the R & R. Thus, the Court reviews the R & R for clear
error. In denying Defendant's motion, MJ Smith determined, inter alia, that the ALJ did not make
sufficient attempts, as required by agency regulations and statute, to obtain Plaintiffs medical
records, was deficient in properly developing the record and substantiating some of her
conclusions, and mis-interpreted Plaintiffs treating physician (Dr. Rosenberg) diagnosis and
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treatment records, and in so doing, failed to accord his opinion proper weight and deference. This
Comt agrees. Having found no clear error, Defendant's motion must be denied.
CONCLUSION
For the reasons stated above, the Comt adopts MJ Smith's R & R in its entirety.
Defendant's Motion for Judgment on the Pleadings is DENIED, and the matter is remanded for
further proceedings consistent with the R & R. The Clerk of Court is respectfully directed to
te1minate the motion at ECF No. 16, to remand the matter for further proceedings, to mail a copy
of this Opinion to Plaintiff and to show proof of service on the docket.
Dated: March 19, 2018
White Plains, New York
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