Pirog v. Colvin

Filing 25

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 20 Report and Recommendations, 12 Motion for Judgment on the Pleadings, filed by Mark A. Pirog, 14 Motion for Judgment on the Pleadings, filed by Carolyn W. Colvin. The Court adopts Judge Daviso n's R&R in its entirety, denies Plaintiff's Motion for Judgment on the Pleadings, and grant Defendant's Cross-Motion for Judgment on the Pleadings. The Clerk of the Court is respectfully directed to terminate the pending motions, (Dkt. Nos. 12, 14), enter judgment for Defendant, and close this case. SO ORDERED. (Signed by Judge Kenneth M. Karas on 9/28/16) (yv)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
MARK A. PIROG,
Plaintiff,
Case No. 15-CV -438 (KMK) (PED)

v.
ORDER ADOPTING R&R
CAROLYN W. COL YIN,
Acting Commissioner of Social Security,
Defendant.

KENNETH M. KARAS, District Judge:
Mark A. Pirog ("Plaintiff') brings this action against the Acting Commissioner of Social
Security ("Defendant" or the "Commissioner"), pursuant to 42 U.S.C. § 405(g), challenging the
decision of an administrative Jaw judge (the "ALJ") to deny Plaintiffs application for disability
insurance benefits on the ground that Plaintiff was not disabled within the meaning ofthe Social
Security Act, 42 U.S.C. § 423, et seq. Plaintiff and Defendant cross-moved for judgment on the
pleadings. (Dkt. Nos. 12, 14.) The Court referred the case to Magistrate Judge Paul E. Davison
("Judge Davison") pursuant to 28 U.S.C. § 636(b)(1)(A). (See Dkt. No.4.) Judge Davison
issued a thorough Report and Recommendation (the "R&R") recommending that the Court deny
Plaintiffs Motion for Judgment on the Pleadings and grant Defendant's Cross-Motion for
Judgment on the Pleadings. (Dkt. No. 20.) Plaintiff filed objections to the R&R on March 22,
2016, (Dkt. No. 21 ), which were refiled on March 24 under a corrected title, (Dkt. No. 22). For
the reasons discussed below, the Court adopts the R&R in its entirety.

I. Discussion
A. Standard ofReview
1. Review of a Report and Recommendation
A district court reviewing a report and recommendation addressing a dispositive motion
"may accept, reject, or modify, in whole or in part, the findings and recommendations made by
the magistrate judge." 28 U.S.C. § 636(b)(1). Pursuant to§ 636(b)(1) and Federal Rule of Civil
Procedure 72(b)(2), parties may submit objections to the magistrate judge's report and
recommendation. The objections must be "specific" and "written," and must be made "[w]ithin
14 days after being served with a copy ofthe recommended disposition." Fed. R. Civ. P.
72(b)(2); see also 28 U.S.C. § 636(b)(1).
When a party submits timely objections to a report and recommendation, the district court
reviews de novo the portions ofthe report and recommendation to which the party objected. See
28 U.S.C. § 636(b)(l); Fed. R. Civ. P. 72(b)(3). The district court "may adopt those portions of
the ... report [and recommendation] to which no 'specific written objection' is made, so long as
the factual and legal bases supporting the findings and conclusions set forth in those sections are
not clearly erroneous or contrary to law." Eisenberg v. New Eng. Motor Freight, Inc., 564 F.
Supp. 2d 224, 226 (S.D.N.Y. 2008) (quoting Fed. R. Civ. P. 72(b)(2)). "[F]ailure to object
timely to a magistrate's report operates as a waiver of any further judicial review ofthe
magistrate's decision." Caidor v. Onondaga County, 517 F.3d 601, 604 (2d Cir. 2008) (internal
quotation marks omitted); see also Thai Lao Lignite (Thailand) Co., Ltd. v. Gov 't of Lao
People's Democratic Republic, 924 F. Supp. 2d 508, 517 (S.D.N.Y. 2013) (refusing to consider
objections filed one day late). Moreover, 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

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the original petition will not suffice to invoke de novo review ofthe magistrate's
recommendations." Vega v. Artuz, No. 97-CV-3775, 2002 WL 31174466, at* 1 (S.D.N.Y. Sept.
30, 2002) (italics omitted); see also Ortiz v. Barkley, 558 F. Supp. 2d 444, 451 (S.D.N.Y. 2008)
(same).
2. Review of a Social Security Claim
In reviewing a Social Security claim, the reviewing court does not determine for itself
whether the plaintiff was disabled and therefore entitled to Social Security benefits. See Schaal

v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) ("[I]t is not our function to determine de novo whether
[the] plaintiff is disabled." (italics, alteration, and internal quotation marks omitted)). Instead,
the reviewing court considers merely "whether the correct legal standards were applied and
whether substantial evidence supports the decision." Butts v. Barnhart, 388 F.3d 377, 384 (2d
Cir. 2004), amended on reh 'gin part by 416 F.3d 101 (2d Cir. 2005). Accordingly, a court may
overturn an ALJ's determination only if it was "based upon legal error" or "not supported by
substantial evidence." Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999) (internal quotation
marks omitted). "'Substantial evidence' is 'more than a mere scintilla'[;] ... [i]t means such
relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'"

Lamay v. Comm 'r ofSoc. Sec., 562 F.3d 503, 507 (2d Cir. 2009) (quoting Richardson v. Perales,
402 U.S. 389, 401 (1971)). In considering whether substantial evidence supports the ALJ's
decision, the reviewing court must "examine the entire record, including contradictory evidence
and evidence from which conflicting inferences can be drawn." Talavera v. Astrue, 697 F.3d
145, 151 (2d Cir. 20 12) (internal quotation marks omitted).
In determining whether a claimant is entitled to disability insurance benefits, the ALJ
follows a five-step analysis:

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1. The Commissioner considers whether the claimant is currently engaged in
substantial gainful activity.
2. If not, the Commissioner considers whether the claimant has a "severe
impairment" which limits his or her mental or physical ability to do basic work
activities.
3. If the claimant has a "severe impairment," the Commissioner must ask
whether, based solely on medical evidence, claimant has an impairment listed in
Appendix 1 ofthe regulations. Ifthe claimant has one ofthese enumerated
impairments, the Commissioner will automatically consider him disabled, without
considering vocational factors such as age, education, and work experience.
4. If the impairment is not 'listed' in the regulations, the Commissioner then asks
whether, despite the claimant's severe impairment, he or she has residual
functional capacity to perform his or her past work.
5. If the claimant is unable to perform his or her past work, the Commissioner
then determines whether there is other work which the claimant could perform.

Shaw v. Chater, 221 F.3d 126, 132 (2d Cir. 2000) (citing DeChirico v. Callahan, 134 F.3d 1177,
1179-80 (2d Cir. 1998)); see also 20 C.F .R. § 404.1520(a)(4)(i)-(v). The claimant bears the
burden of proof for the first four steps. See Green-Younger v. Barnhart, 335 F.3d 99, 106 (2d
Cir. 2003). If, however, the claimant proves that his impairment prevents him from performing
his past work, the burden shifts to the Commissioner at the fifth step. See id. There, the
Commissioner must prove "that there is other gainful work in the national economy that [the
claimant] could perform." Kamerling v. Massanari, 295 F.3d 206, 210 (2d Cir. 2002). If the
ALJ determines that "significant numbers of jobs exist in the national economy that the claimant
can perform," Mcintyre v. Colvin, 758 F.3d 146, 151 (2d Cir. 2014), the ALJ must deny
disability insurance benefits to the claimant, see 20 C.F.R. § 404.1520(a)(4)(v).

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B. Analysis
The Court adopts the recitation of facts set forth by Judge Davison in the R&R, (R&R 127), and assumes the Parties' familiarity with it. The Court will repeat only those facts relevant
to the consideration of Plaintiff's objections.

1. Timeliness and Sufficiency of Objections
Defendant argues that because Plaintiff's objections were not timely filed and because
they are merely a rehash of arguments already made to the Judge Davison, the Court need not
consider them. The Court disagrees
The R&R was electronically filed on March 7, 2016. (See Dkt. No. 20.) Parties have 14
days in which to object to a report and recommendation regarding a dispositive motion, Fed. R.
Civ. P. 72(b)(2), making Plaintiff's objections due on March 21,2016. However, Federal Rule
of Civil Procedure 6(d) provides that "[w]hen a party may or must act within a specified time
after service and service is made under Rule 5(b)(2)(C), (D), (E), or (F), 3 days are added after
the period that would otherwise expire." Federal Rule of Civil Procedure 5(b)(2)(E) relates to
service by electronic means. The R&R was served on all parties electronically, and thus 3
additional days were added to the time the objections would have otherwise been due, making
the operative due date March 24, 2016. See Fed. R. Civ. P. 72(b) advisory committee's note to
1983 amendment ("The [ 14 ]-day period, as specified in the statute, is subject to Rule 6(e), which
provides for an additional 3-day period [in some circumstances]."). Additionally, the docket
entry for the R&R correctly indicated that objections to the R&R were due by March 24, 2016.
(See Dkt. No. 20.) Plaintiff's objections, initially filed on March 22 and refiled on March 24,
(see Dkt. Nos. 21, 22), were therefore timely and are thus properly before the Court.

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Defendant also argues that Plaintiffs objections are improper because they are merely a
reiteration of arguments already made to the magistrate judge. See Ortiz, 558 F. Supp. 2d at 451;

Vega, 2002 WL 31174466, at *2. Although Plaintiffs objections largely restate his arguments
before the magistrate judge, the Court finds that the objections are at least sufficiently detailed to
allow meaningful review ofthe R&R without needlessly duplicating the efforts ofthe magistrate
judge, cf Vega, 2002 WL 31174466, at *2 (refusing to consider objections because the claimant
had "simply rearranged many portions of his original brief' and "in fact, [the claimant] cite[d]
back to his original brief in support of his renewed objections"), and in any event, the outcome of
the case is not affected by the Court's decision to address Plaintiffs objections, see Martinson v.

U.S. Parole Comm 'n, No. 02-CV -4913, 2005 WL 1309054, at *4 (S.D.N .Y. June I, 2005)
(finding that objections were not timely, but considering them anyway and adding that "the
Court also finds that the result would be the same ifthe Court were to review the [r]eport and
[r]ecommendation de novo" (italics omitted)).
2. Treating Physician Rule
Plaintiff first objects that the ALJ and the magistrate judge committed error in failing to
give appropriate deference to the opinion of Plaintiff's treating physician, Dr. Ranga Krishna.

(See Pl.'s Obj. to the R. & R. ("Obj.") 1-5 (Dkt. No. 22).)
When determining eligibility for disability insurance benefits, the Social Security
Administration "give[s] more weight to opinions from ... treating sources, since these sources
are likely to be the medical professionals most able to provide a detailed longitudinal picture of
[the claimant's] medical impairment(s)." 20 C.F.R. § 404.1527(c)(2). Consequently, the ALJ
reviewing a claim for disability insurance benefits must likewise give "deference to the medical
opinion of a claimant's treating physician." Halloran v. Barnhart, 362 F.3d 28,32 (2d Cir.

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2004). However, "the opinion of the treating physician is not afforded controlling weight where
... the treating physician issued opinions that are not consistent with other substantial evidence
in the record, such as the opinions of other medical experts." Id. Accordingly, "[a] treating
physician's statement that the claimant is disabled cannot itself be determinative." Snell v. Apfel,
177 F.3d 128, 133 (2d Cir. 1999).
If the ALJ declines to give controlling weight to a treating physician's opinion, the ALJ
must consider a number of factors in determining how much weight the opinion is due: (i) the
frequency of examination and the length, nature, and extent of the treatment relationship; (ii) the
evidence in support of the opinion; (iii) the opinion's consistency with the record as a whole; (iv)
whether the opinion was from a specialist; and (v) any other factors that "tend to support or
contradict the opinion." 20 C.F .R. § 404.1527( c )(2). The ALJ need not always recite each
factor. See Halloran, 362 F.3d at 32 (noting that "it [was] unclear on the face ofthe AU's
opinion whether the ALJ considered (or even was aware of) the applicability ofthe treating
physician rule," but nevertheless concluding that "the substance of the treating physician rule
was not traversed"); see also Atwater v. Astrue, 512 F. App'x 67,70 (2d Cir. 2013) ("We require
no such slavish recitation of each and every factor where the ALJ's reasoning and adherence to
the regulation are clear.").
The ALJ offered several reasons for discounting Dr. Krishna's opinion. First, Dr.
Krishna's records "g[a]ve no indication ofthe significant degree ofweakness and lack of
functioning ability to the claimant's hands he reports." (Administrative Record ("A.R.") 27
(Dkt. No.9).) Second, Dr. Krishna's opinions about Plaintiff's ability to perform sedentary work
"appear[ed] to be based upon the claimant's subjective complaints, rather than objective clinical
findings observed upon physical examination, and they [we ]re not supported by his own

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examination findings, or the substantial evidence." (/d.) Third, "substantial evidence such as the
multiple [Independent Medical Exams], the consultative examination, [and] the review by
[Social Security Administration] expert Dr. Putcha fail[ed] to support the various opinions of Dr.
Krishna." (/d.) When the record contains "conflicting ... evaluations of[a claimant's] present
condition, it [is] within the province ofthe ALJ to resolve that evidence." Veino v. Barnhart,
312 F.3d 578, 588 (2d Cir. 2002). As Judge Davison recognized, (R&R 33-35), that is the case
here.
Plaintiff contends that the ALJ erred in giving undue weight to the opinions of nontreating physicians while discounting the opinion of Dr. Krishna. But the treating physician rule
requires the ALJ and the reviewing court not to merely adopt the treating physician's opinion as
determinative, see Snell, 177 F.3d at 133, but rather to consider the opinion of the treating
physician in the context of the "other substantial evidence in the record, such as the opinions of
medical experts," Halloran, 362 F.3d at 32. The ALJ considered the opinions of several
physicians whose examinations of Plaintiff contradicted the findings of Dr. Krishna:
•

Dr. Elena Kaznatcheeva conducted an MRI and two physical examinations. The
MRI results were "unremarkable," and Dr. Kaznatcheeva opined that "[f]rom [a]
neurological point of view, the patient can return to full duty." (A.R. 19, 595602.)

•

Dr. David E. Wellin noted pain and some restricted motion ofthe spine, but found
that Plaintiff had normal muscle strength. (/d. at 22-23, 691-94.) Dr. Wellin
noted in a second examination that Plaintiff could not return to his job as a
corrections officer, but did not rule out other work. (/d. at 22-23, 829-33.)

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•

Dr. David T. Tucker noted some mild tenderness and restrictions in walking and
standing, but no restriction on range of motion and no evidence of limping with
ambulation. (Id at 22, 612-15.)

•

Chiropractor Robert Pearl found that Plaintiff had a moderate to marked level of
disability, but that Plaintiff could lift up to 15 pounds, although he added that
Plaintiff should refrain from repetitive bending. (Id at 23, 13 75-77 .)

•

Dr. Howard Levin noted normal range of motion, mild carpal tunnel syndrome,
and a normal gait and station. (Id at 23, 1369-73.)

•

Dr. Steven Rocker concluded that Plaintiff was mildly to moderately limited in
performing work-related activities and that Plaintiff had no restrictions for sitting.
(Id at 24, 463-66.)

•

Dr. S. Putcha concluded that Plaintiffs complaints were largely subjective and
that Plaintiff could perform exertionally light work. (Id at 24, 474-76.)

This "substantial evidence" from other physicians undermined the opinion of Dr. Krishna and, in
the AU's view, counselled against affording Dr. Krishna's opinion controlling weight.
The AU also noted Plaintiffs own testimony that he drives over 200 miles to see his
physician, (id at 25, 79-80), that he has traveled by plane three times since the alleged onset of
his disability, (id at 25, 88-90), and that he has gone hunting and fishing six or eight times since
the alleged onset of his disability, (id at 25, 107). While an AU's impressions of a plaintiffs
testimony may not themselves be sufficient to outweigh a treating physician's opinion, see, e.g.,
Doyle v. Apfel, 105 F. Supp. 2d 115, 120 (E.D.N.Y. 2000) ("It is improper ... for the AU to

substitute his judgment for that of the treating physician as to the significance of a claimant's
ability to perform [various] activities."); cf Stevens v. Barnhart, 473 F. Supp. 2d 357, 364

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(N.D.N.Y. 2007) ("[I]t cannot be said that the ALJ disregarded all medical evidence from [the]
[p]laintiffs treating physicians and instead relied on her impression ofthe [p]laintiff's
testimony."), the substance of a plaintiffs testimony is nonetheless part of the body of evidence
that an ALJ may consider, along with other evidence, when evaluating the credibility of a
treating physician's opinion, see Diaz v. Shalala, 59 F.3d 307, 315 (2d Cir. 1995) (considering,
among other things, the "plaintiffs own testimony" in determining that the treating physician's
opinion was not controlling); Nelson v. Sec yof Health & Human Servs., 676 F. Supp. 44, 47
(W.D.N.Y. 1987) (same).
Beyond articulating a general complaint about the minimal weight afforded to Dr.
Krishna's opinion, Plaintiff fails to rebut the specific evidence relied upon by the ALJ in
determining the amount of weight due to Dr. Krishna's opinion. And as Judge Davison properly
found, there was substantial objective evidence in the record undermining Dr. Krishna's opinion.
(R&R 34-35.) The ALJ committed no error in choosing to assign little weight to Dr. Krishna's
opinion.
3. Substantial Evidence
Part and parcel to Plaintiffs complaint about the lack of controlling weight given to Dr.
Krishna's opinion is his argument that the ALJ's decision was not supported by substantial
evidence. (See Obj. 5-6.) To the extent Plaintiffs arguments here are premised on his
disagreement with the weight afforded to Dr. Krishna's opinion, that issue is addressed above.
However, Plaintiff also protests more generally that the record did not support the ALJ's finding
that he was capable of sedentary work. (Obj. 6.) 1

1

Sedentary work involves "lifting no more than I 0 pounds at a time and occasionally
lifting or carrying articles like docket files, ledgers, and small tools." 20 C.F.R. § 404.1567(a).

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The ALJ gave significant weight to the opinion ofDr. Kaznatcheeva, (A.R. 19), who
considered Plaintiff fit to return to full duty work, (A.R. 595-602). The ALJ also noted the
opinion of state agency medical consultant Dr. Putcha, (A.R. 24), who determined that Plaintiff
was fit for work, though perhaps no longer fit for the corrections officer position he previously
held, (A.R. 474-76). The objective medical evidence documented by several other examining
physicians, see supra, supported these findings, and tended to undercut Plaintiffs testimony,
which the ALJ found to be "not wholly credible," (A.R. 25). As Judge Davison noted, the ALJ
was influenced by Plaintiffs testimony about his visits by plane to family members, his
occasional hunting and fishing, and his long car rides to see Dr. Krishna. (A.R. 25-26.)
Plaintiff argues that the ALJ and Judge Davison improperly relied on the observed burn
marks on Plaintiffs hands during the hearing to conclude that Plaintiff had been working on his
furnace at home, indicating some dexterity in his hands. (Obj. 5.) Defendant is correct that this
argument, not raised in Plaintiffs initial brief, (compare Pl.'s Mem. of Law in Supp. ofMot. for
J. on the Pleadings (Dkt. No. 15), with Obj. 5), is improperly introduced for the first time in
Plaintiffs objections to the R&R, see Chisolm v. Headley, 58 F. Supp. 2d 281, 284 n.2
(S.D.N.Y. 1999) ("A [plaintiff] is not permitted to raise an objection to a magistrate judge's
report that was not raised in the original [motion]."); Abu-Nassar v. Elders Futures, Inc., No. 88CV -7906, 1994 WL 445638, at *4 n.2 (S.D.N .Y. Aug. 17, 1994) ("These arguments were not
raised before [the magistrate judge], and are not submitted as objections but as new arguments.
Accordingly, [the] plaintiffs' arguments and evidence are untimely."). However, even were the
objection properly preserved, there is no merit to it. Plaintiff had disputed Dr. Levin's notes
indicating that when Plaintiff met with Dr. Levin for an examination, he told Dr. Levin that he
had burned his hands while working on his furnace. (A.R. 118-20.) The ALJ noted burn marks

II

on Plaintiffs hand during the hearing and cited this evidence in support ofDr. Levin's account.
(!d. at 25.) Plaintiff contends that "this [was] a very narrow observation." Obj. 5. Plaintiff is
correct that the observation was a "narrow" one, but neither the ALJ nor Judge Davison devoted
more than a sentence or two to this fact, and there is nothing in the record suggesting that the
ALJ considered this observation significant or even germane to the dispute. (See A.R. 25; R&R
38.) In fact, the ALJ mentioned that he afforded "[m]inimal weight" to Dr. Levin's opinion
because ofthe timing of the examination. (A.R. 25.) Plaintiff fails to articulate how the ALJ's
observation on this point impacts or undermines the substantial evidence supporting the ALJ's
ultimate conclusions.
Plaintiff also belatedly objects to the ALJ's suggestion that Plaintiff's receipt of disability
retirement pension and workers' compensation payments "raise[d) the question as to whether
[Plaintiffs] continuing unemployment is actually due to his medical impairments rather than his
receipt of benefits without having to engage in work." (!d. at 26.) Plaintiff argues that this
statement ignores the fact that Plaintiffwould still retain those benefits even if he were
employed. (Obj. 5.) Plaintiffs argument misses the mark. The suggestion by the ALJ was that
Plaintiffs unemployment may have been motivated not by any disability, but by the fact that his
existing disability benefits obviated the need for employment. It is the province of the ALJ to
assess credibility, see Evans v. Comm 'r of Soc. Sec., 110 F. Supp. 3d 518, 538 (S.D.N.Y. 2015)
("It is the function of the Commissioner, not the reviewing court, to resolve evidentiary conflicts

and to appraise the credibility of witnesses, including the claimant" (alterations omitted)), and
the Court has no occasion here to second-guess the ALJ's determination that Plaintiffs receipt of
disability benefits may have undermined the reliability of some of his testimony, see Selian v.

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Astrue, 708 FJd 409,420 (2d Cir. 2013) ("[A]n AU's credibility determination is generally
entitled to deference on appeal.").
Because Plaintiff has offered no other specific objections, the Court, having carefully
reviewed the thorough R&R, concludes that Judge Davison committed no error, clear or
otherwise.
II. Conclusion
For the foregoing reasons, the Court adopts Judge Davison's R&R in its entirety, denies
Plaintiff's Motion for Judgment on the Pleadings, and grant Defendant's Cross-Motion for
Judgment on the Pleadings. The Clerk of the Court is respectfully directed to terminate the
pending motions, (Dkt. Nos. 12, 14), enter judgment for Defendant, and close this case.
SO ORDERED.
DATED:

September~2, 2016
White Plains, New York

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