Mariano v. Colvin

Filing 26

ORDER ADOPTING REPORT AND RECOMMENDATIONS 22 Report and Recommendations. Motion to Reverse Decision of the Commissioner 17 is DENIED. Motion for Order Affirming the Decision of the Commissioner 19 is GRANTED. Judgment shall enter for Defendant. So Ordered by Senior Judge Mary M. Lisi on 1/11/2016. (Feeley, Susan)

UNITED STATES DISTRICT COURT
DISTRICT OF RHODE ISLAND
MICHELE A. MARIANO
v.

C.A. No. 15-018 ML

CAROLYN COLVIN
Acting Commissioner of Social
Security Administration
MEMORANDUM AND ORDER
This matter is before the Court on Plaintiff’s Objection to a Report and Recommendation
issued by Magistrate Judge Sullivan on December 9, 2015 (Docket #22). The Report and
Recommendation was issued after full briefing by both sides. Defendant has filed a Response to
the Objection. In her Objection, Plaintiff focuses on three alleged claims of error, only one of
which was raised before the Magistrate Judge.
As to Plaintiff’s first claim, i.e., that the ALJ erred with respect to his credibility
determination regarding Plaintiff’s subjective complaints, the Report and Recommendation
correctly sets forth the standard of review and painstakingly points to the record evidence in
support of the Magistrate Judge’s conclusion that the ALJ’s finding on this point is based on
substantial record evidence. This Court finds that Magistrate Judge Sullivan correctly
determined that the ALJ committed no legal error in reaching his adverse credibility finding.
With regard to the two remaining claims of error, (1) that the ALJ improperly relied on
Plaintiff’s refusal of treatment to make his credibility determination, and, (2) that the ALJ’s RFC
finding does not account for the combined effect of her fibromyalgia and her obesity, as the
Defendant points out, neither of these arguments were made before the Magistrate Judge. They
are, therefore, not properly raised for the first time before this Court. The Court will not
consider them. However, even if this Court were to address them, they are without merit for the

reasons set forth in Defendant’s Response.
Having reviewed the Report and Recommendation, Plaintiff’s Objections, and
Defendant’s Response, this Court adopts the Report and Recommendation in its entirety.
Plaintiff’s Motion to Reverse Defendant’s Final Decision without a Remand for Rehearing or in
the Alternative Reverse with a Remand for Rehearing (Docket #17) is DENIED, and
Defendant’s Motion for Order Affirming the Decision of the Commissioner (Docket #19) is
GRANTED. Judgment shall enter in favor of Defendant.

SO ORDERED:
/s/ Mary M. Lisi
Mary M. Lisi
Senior United States District Judge
January 11, 2016