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SMOTHERS v. CHATER

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK


May 20, 1997

MARY W. SMOTHERS, Plaintiff, -vs- SHIRLEY S. CHATER, Commissioner of Social Security, Defendant.

The opinion of the court was delivered by: ELFVIN

MEMORANDUM and ORDER

 Presently before this Court are the plaintiff's timely *fn1" objections to the Report and Recommendation ("the R&R") issued by Magistrate Judge Hugh B. Scott -- to whom this matter had been referred pursuant to 28 U.S.C. § 636(b)(1)(B) -- in which Judge Scott recommended that the Commissioner's motion for judgment on the pleadings predicated upon Rule 12(c) of the Federal Rules of Civil Procedure ("FRCvP") be granted and that her final decision *fn2" that the plaintiff is not disabled and consequently not entitled to disability insurance benefits under the Social Security Act -- 42 U.S.C. § 300 et seq. -- be affirmed. The objections will be overruled and the R&R will be accepted.

 Pursuant to 28 U.S.C. § 636(b)(1), FRCvP 72(b) and Rule 72.3(a) of the Local Rules of Civil Procedure the undersigned is to make a de novo review of those portions of the R&R to which objections of the requisite degree of specificity are made. If the findings of the defendant are supported by relevant evidence which a reasonable mind could accept as adequate to uphold the findings, such findings shall be upheld. 42 U.S.C. § 405(g); Perez v. Chater, 77 F.3d 41, 46 (2nd Cir. 1996).

 The plaintiff's first objection essentially is that the Administrative Law Judge ("the ALJ") incorrectly found that orthopedic surgeon Gerald Marin *fn3" "administered nerve conduction tests and electromyographic studies" (Transcript of Record, p. 33) and had available to him evaluations from David E. Hoffman, M.D. and that, although Judge Scott did not replicate such erroneous findings, he failed to comment on the ALJ's mistake. Such objection fails to recognize that Judge Scott properly found that "Dr. Marin acknowledged that his diagnosis and conclusions were based solely upon his [physical] examination [of the plaintiff] and that he did not review any x-rays, investigations or *** consultations in connection with his examination." R&R, p. 6. The objection also fails to address the fact that Judge Scott, in addition to reviewing Dr. Marin's report, independently examined and briefly summarized the findings contained in the reports prepared by Dr. Hoffman, Dr. Alan G. Burstein, Dr. Joseph Tannenhause, Dr. Benjamin E. Obletz, Dr. George Kotlewski, Dr. Lawrence Cohen, Dr. Owen James Moy, Dr. J. Steven Cramer, Dr. Paul C. Akman, Dr. William N. Capicotto and Jack Stachura -- a physical therapist who had treated the plaintiff -- and reviewed the ALJ's exhaustive analysis of the medical evidence in the record. R&R, pp. 3-7, 9-10. Most importantly, the plaintiff's objection fails to challenge the substantial evidence supporting the finding that she is able to perform "sedentary through medium work" except for such work requiring "repetitive and/or resisted use of the right hand and elbow for handling, feeling, pushing, pulling, or fine and gross manipulation, or lifting and carrying more than [ten] pounds occasionally" and that she was, therefore, not under a disability as defined in the Social Security Act at the time of such determination. Transcript of Record, pp. 45-46; R&R, p. 9.

 The plaintiff's second and final objection is that Judge Scott did not discuss the report dated August 9, 1995 prepared by Dr. Moy. However, the plaintiff notably fails to mention that the Appeals Council expressly considered such report and found it to be entirely consistent with the ALJ's findings. Transcript of Record, pp. 5-6. The report itself recommends that the plaintiff "be restricted from performing any heavy, repetitive activities though she is capable of a light duty function." Transcript of Record, p. 314. Such is entirely consistent with and cumulative of the considerable medical evidence in the record reviewed by the undersigned. Lisa v. Secretary of DHHS, 940 F.2d 40, 43 (2nd Cir. 1991). This Court is firmly convinced that the medical evidence in the administrative record clearly and overwhelmingly supports the Commissioner's determination that the plaintiff was not disabled at the time of the decision pursuant to the Social Security Act.

 Accordingly, it is hereby ORDERED that the objections are overruled, that the R&R is accepted, that the defendant's motion for a judgment on the pleadings is granted and that this case shall be closed.

 DATED: Buffalo, N.Y.

 May 20, 1997

 John T. Elfvin

 U.S.D.J.


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