Burnham v. Colvin
DECISION AND ORDER denying 8 Plaintiff's Motion for Judgment on the Pleadings; granting 11 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations of Honorable Michael J. Roemer in its entirety re 14 Report and Recommendations. (Clerk to close case.) Signed by Hon. Michael A. Telesca on 8/2/2017. (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
AMANDA ANN BURNHAM,
-vsNANCY A. BERRYHILL, Acting
Commissioner of Social
Plaintiff Amanda Ann Burnham(“plaintiff”) brings this action
pursuant to 42 U.S.C. § 405(g), claiming that the Commissioner of
Social Security (“Commissioner” or “defendant”) improperly denied
her applications for supplemental security income (“SSI”) payments
and disability insurance benefits (“DIB”) under the Social Security
Act (“SSA”). Currently before the Court are the parties’ competing
motions for judgment on the pleadings pursuant to Rule 12(c) of the
Federal Rules of Civil Procedure.
On August 11, 2016, Magistrate Judge Michael J. Roemer issued
recommending that defendant’s motion be granted and plaintiff’s
motion be denied.
As discussed further below, the Court agrees
with Judge Roemer’s findings and adopts the R&R in its entirety.
Nancy A. Berryhill replaced Carolyn W. Colvin as Acting Commissioner of
Social Security on January 23, 2017. The Clerk of the Court is instructed to
amend the caption of this case pursuant to Federal Rule of Civil Procedure 25(d)
to reflect the substitution of Acting Commissioner Berryhill as the defendant in
Standard of Review
When specific objections are made to a magistrate judge’s
report and recommendation, the district judge makes a “de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made.” 28 U.S.C.
When only general objections are made to a
magistrate judge’s report and recommendation, the district judge
reviews it for clear error or manifest injustice. E.g., Brown v.
Peters, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997), aff’d,
175 F.3d 1007 (2d Cir. 1999).
After conducing the appropriate
review, the district 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).
Plaintiff’s applications for SSI and DIB were filed on April
1, 2011 and alleged disability beginning on March 5, 2011 due to a
Plaintiff’s applications were initially denied on May 19, 2011.
T. 56, 62.
Following a hearing before administrative law judge
(“ALJ”) Timothy M. McGuan, during which testimony was taken from
unfavorable finding that plaintiff was not disabled under the SSA
on November 30, 2012.
In his decision, the ALJ found that plaintiff had the severe
impairments of broad-based herniation at L4-5 and compromise of the
thecal sac, face joint arthropathy, mild stenosis with slight
bulging of the L5-S1 disc with minor effacement of the thecal sac
and early joint arthropathy, left knee suspicious tear along the
posterior horn of the lateral meniscus with a tiny joint effusion,
depression, and anxiety.
T. 20. The ALJ further found that
plaintiff had the residual functional capacity (“RFC”) to perform
light work with the following limitations: the option to sit or
stand after one hour and no more than occasional interaction with
On February 5, 2014, the Appeals Council
denied plaintiff’s request for review of the ALJ’s decision,
rendering it the Commissioner’s final determination.
present action ensued.
Plaintiff’s Objections to the R&R
In response to the R&R, plaintiff raises three specific
incorrectly found that the ALJ was not required to advise plaintiff
to obtain a more detailed medical opinion; and (3) Judge Roemer
incorrectly found that the ALJ’s RFC finding adequately accounted
for plaintiff’s limitations in tolerating stress.
For the reasons
discussed below, the Court finds that these objections are without
Development of Plaintiff’s Testimony
Although “[t]he claimant has the general burden of proving
that he or she has a disability within the meaning of the Act,”
“because a hearing on disability benefits is a non-adversarial
proceeding, the ALJ generally has an affirmative obligation to
develop the administrative record.” Burgess v. Astrue, 537 F.3d
117, 128 (2d Cir. 2008) (internal quotation marks and brackets
omitted). The ALJ’s duty to develop the record is heightened when,
as was the case here, the claimant is proceeding pro se. See Cruz
conscientiously probe into, inquire of, and explore for all the
relevant facts,” and to “adequately . . . explore the nature and
extent of [the claimant’s] subjective symptoms.”
Sec’y of Health & Human Servs., 685 F.2d 751, 755 (2d Cir. 1982)
(internal quotation marks and brackets omitted).
plaintiff was de minimis, in that the hearing lasted for only
However, as Judge Roemer found in the R&R, the issue
is not how long the hearing lasted, but rather whether the ALJ
subjective symptoms and limitations.
The Court agrees with Judge
Roemer that the ALJ’s questioning in this case was adequate and
As detailed in the R&R, the ALJ questioned plaintiff
about her activities of daily living, about the impact of her
mental impairments on her ability to work and function, about her
physical limitations, and about what limitations she felt she had
in her ability to work.
Plaintiff claims that the ALJ failed to
ask her about her medications, but the record shows that the ALJ
did in fact ask Plaintiff what medications she took for pain, and
that plaintiff testified she took Naproxen, Advil, and Aleve.
Contrary to plaintiff’s argument, Judge Roemer did not find
that the state of plaintiff’s medical records justified a de
Instead, Judge Roemer found that there was
nothing in plaintiff’s medical records to suggest that the ALJ had
overlooked any disabling impairments or limitations.
and having reviewed the issue de novo, the Court finds no error in
Failure to Advise Plaintiff to Seek a New Medical Opinion
Plaintiff’s second objection is that Judge Roemer incorrectly
found that the ALJ had no obligation to advise her to seek a new
The Court agrees with Judge Roemer that no
such obligation existed.
In Cruz v. Sullivan, 912 F.2d 8 (2d Cir. 1990), the Second
Circuit held that “when the ALJ rejects the findings of a treating
physician because they were conclusory or not supported by specific
clinical findings, he should direct a pro se claimant to obtain a
more detailed statement from the treating physician.”
Id. at 12.
Plaintiff contends that the reasoning in Cruz also applies where,
as in this case, the ALJ discounts the opinion of a consultative
fundamental difference between the opinion of a treating physician,
evidence, and the opinion of a consultative examiner. The Court is
not persuaded that the reasoning of Cruz extends to cases in which
the opinion at issue did not come from a treating physician.
Plaintiff points out that one of the cases cited in the R&R,
Jackson v. Colvin, 2016 WL 1085412 (W.D.N.Y. Mar. 21, 2016), was
recently reversed by the Second Circuit. See Jackson v. Berryhill,
2017 WL 2399459, at *1 (2d Cir. June 2, 2017).
However, the Second
Circuit’s reversal in Jackson was based on grounds not present in
plaintiff’s other arguments (which included the contention that
Cruz applies to the opinions of consultative examiners) were
“without merit.” Id. at *2.
Accordingly, the Second Circuit’s
opinion in Jackson does not support plaintiff’s position.
The ALJ’s Mental RFC
Plaintiff’s final objection is that Judge Roemer’s finding
that the ALJ’s mental RFC adequately accounted for plaintiff’s
Plaintiff underwent a consultative psychiatric examination by
Renee Baskin, Ph.D. (“Dr. Baskin”), who opined that plaintiff had
“moderate limitations being able to deal with stress.”
Plaintiff argues that the ALJ failed to address this finding in his
However, the Court agrees with Judge Roemer that the ALJ’s mental
RFC did address plaintiff’s stress-related limitations, by limiting
her to only occasional contact with the public. As explained in the
Dr. Baskin’s opinion and the opinion of Dr. T. Andrews, the state
agency review psychologist.
See Thompson v. Colvin, 2015 WL
3621532, at *8 (W.D.N.Y. June 9, 2015) (upholding RFC defining “low
occasional direct interaction with the public”); Obrist v. Colvin,
2013 WL 3353966, at *6 (N.D.N.Y. July 3, 2013) (ALJ’s definition of
a “low-stress environment” as “only occasional decision making and
occasional interacting appropriately with the co-workers and the
public in small groups of five or less” was supported by the
medical evidence of record).
For the reasons set forth above, upon its de novo review and
after careful consideration of plaintiff’s objections, the Court
accepts Judge Roemer’s proposed findings and recommendation and
adopts the R&R in its entirety.
undersigned adopts all of Judge Roemer’s conclusions.
Commissioner’s motion for a judgment on the pleadings (Docket
No. 11) is granted, and plaintiff’s motion for a judgment on the
pleadings (Docket No. 8) is denied.
The Clerk of Court is directed
to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
MICHAEL A. TELESCA
United States District Judge
August 2, 2017
Rochester, New York
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