Raub v. Colvin
DECISION AND ORDER denying 7 Plaintiff's Motion for Judgment on the Pleadings; granting 13 Commissioner's Motion for Judgment on the Pleadings; adopting Report and Recommendations re 15 Report and Recommendations in its entirety. Signed by Hon. Michael A. Telesca on 3/9/17. (Clerk to close case.) (JMC)-CLERK TO FOLLOW UP-
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
KENDRA J. RAUB, o/b/o H.S.J.,
No. 1:15-CV-00150 (MAT)
DECISION AND ORDER
CAROLYN W. COLVIN, ACTING
COMMISSIONER OF SOCIAL SECURITY,
Represented by counsel, Kendra J. Raub (“plaintiff”) brings
this action on behalf of her infant son (“H.S.J.”) pursuant to
Title XVI of the Social Security Act (“the Act”), seeking review of
the final decision of the Commissioner of Social Security (“the
Commissioner”) denying plaintiff’s application for Supplemental
Security Income (“SSI”). The Court has jurisdiction over this
matter pursuant to 42 U.S.C. § 405(g). The matter was initially
before the Court on the parties’ cross motions for judgment on the
pleadings.1 The parties’ motions were referred to Magistrate Judge
Jeremiah J. McCarthy for consideration of the factual and legal
Recommendation (“R&R”) containing a recommended disposition of the
By R&R dated January 3, 2017, Magistrate Judge McCarthy
recommended that the Commissioner’s motion be granted. Doc. 15.
This case was originally assigned to Judge Richard Arcara, who referred
it to Magistrate Judge McCarthy for a Report and Recommendation, which was
completed and filed on January 3, 2017. The case was referred to this Court by
order dated January 19, 2017.
Plaintiff filed objections on January 17, 2017. Doc. 16. For the
reasons set forth below, the Court overrules plaintiff’s objections
and adopts the R&R in its entirety.
The record reveals that in June 2011, plaintiff applied for
DIB on behalf of H.S.J. (d/o/b June 27, 2008), alleging disability
as of June 7, 2011. After her application was denied, plaintiff
requested a hearing, which was held before administrative law judge
William E. Straub (“the ALJ”) on June 10, 2013. The ALJ issued an
unfavorable decision on July 18, 2013. The Appeals Council granted
review of that decision and this timely action followed.
III. Report and Recommendation
Plaintiff’s motion for judgment on the pleadings argues that
(1) the ALJ failed to accurately assess H.S.J.’s visual impairment;
listings; and (4) the ALJ’s credibility assessment was erroneous.
The R&R rejected plaintiff’s arguments and recommended that the
Commissioner’s motion be granted. The R&R gives a thorough summary
of the administrative record, which the Court incorporates by
reference. See doc. 15 at 2-6.
When reviewing a magistrate judge’s report and recommendation,
a district court must “make a de novo determination of those
recommendations to which objection is made[,]” 28 U.S.C. § 636(b),
and “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge[.]” Id.
Plaintiff specifically objects to Judge McCarthy’s conclusions that
(1) the ALJ properly considered H.S.J.’s visual impairment; (2) the
ALJ did not fail to develop the record by obtaining opinion
indicated that he appropriately reviewed the relevant listings.
Plaintiff does not object to the R&R’s finding that the credibility
assessment was proper.2
The Court has reviewed the administrative record, and finds
that Judge McCarthy’s recommendations are fully supported by the
record. Plaintiff’s primary argument is that the ALJ failed to
consider H.S.J.’s visual impairment because the ALJ characterized
that impairment as a “macular disorder,” whereas evidence in the
Plaintiff argues that the ALJ failed to fully consider the visual
impairment and failed to make a proper analysis of the functional
McCarthy correctly noted, the ALJ’s decision makes it clear that he
“The court may adopt those portions of the R&R to which no objection is
made ‘as long as no clear error is apparent from the face of the record.’” Stroud
v. Comm’r of Soc. Sec., 2015 WL 2137697, *1 (S.D.N.Y. May 6, 2015) (quoting
Oquendo v. Colvin, 2014 WL 4160222, *2 (S.D.N.Y. Aug. 19, 2014) (internal
quotation marks and citation omitted)).
Judge McCarthy’s analysis.
The Court similarly agrees with Judge McCarthy’s conclusions
that the ALJ did not fail to develop the record and that he
properly considered the relevant listings. As Judge McCarthy noted,
although consulting examiner Dr. Joseph Prezio acknowledged that
complete and contained treatment notes from H.S.J.’s treating
sources with regard to all of his impairments, including nystagmus.
These treatment notes do not suggest greater limitations than those
opined by the consulting sources or found by the ALJ.
Additionally, although the ALJ did not specifically discuss a
particular listing with regard to H.S.J.’s visual impairment,
plaintiff does not point to any listing which should have been more
specifically considered, and there is no indication in the record
that H.S.J.’s impairments met the requirements of any listing.
Therefore, the Court agrees with Judge McCarthy’s finding that the
ALJ’s decision reflects proper consideration of the listings.
Finally, the Court agrees with, and therefore finds no clear error
in, Judge McCarthy’s finding that the ALJ appropriately considered
plaintiff’s credibility. Accordingly, the Court adopts the R&R in
The Court hereby adopts the R&R (doc. 15) in its entirety. For
the reasons discussed in this Decision and Order as well as those
set forth in the R&R, the Commissioner’s motion for judgment on the
pleadings (Doc. 13) is granted and plaintiff’s motion (Doc. 7) is
denied. Plaintiff’s objections (doc. 16) are overruled. The Clerk
of the Court is directed to close this case.
ALL OF THE ABOVE IS SO ORDERED.
S/Michael A. Telesca
HON. MICHAEL A. TELESCA
United States District Judge
March 9, 2017
Rochester, New York.
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