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Mistie A. Briggs v. Michael J. Astrue

July 7, 2011

MISTIE A. BRIGGS, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.



The opinion of the court was delivered by: Scullin, Senior Judge

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

In a Report and Recommendation dated March 4, 2011, Magistrate Judge Bianchini recommended that this Court grant Defendant's motion for judgment on the pleadings, deny Plaintiff's motion for judgment on the pleadings, and dismiss Plaintiff's complaint. See Report and Recommendation ("Report-Rec.") at 2. Currently before the Court are Magistrate Judge Bianchini's Report and Recommendation*fn1 and Plaintiff's objections thereto. See Report-Rec.; Plaintiff's Objections ("Pltf. Obj.").

Plaintiff objects to the following: (1) the ALJ's assessment of her foot impairment, (2) the ALJ's finding that her mental impairments are not of Listing-level severity, (3) the ALJ's residual functional capacity ("RFC") determination, (4) the ALJ's assessment of Plaintiff's credibility, and (5) the ALJ's use of the Grids to inform his determination that work exists in the national economy that she can perform. See Pltf. Obj. at 3.

II. DISCUSSION

A. Standard of review

When reviewing a magistrate judge's report and recommendation, a district court judge "make[s] a de novo determination of those portions of the [magistrate judge's] report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1)(C). "'"If, however, the party makes only conclusory or general objections, or simply reiterates his original arguments, the court reviews the report and recommendation only for clear error."'" Salmini v. Astrue, No. 3:06-CV-458, 2009 WL 1794741, *1 (N.D.N.Y. June 23, 2009) (quoting [Farid v. Bouey, 554 F. Supp. 2d 301] at 306 [(N.D.N.Y. 2008)] (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007))). The district court also reviews for clear error those portions of a report-recommendation to which a party does not object. See Lawton v. Astrue, No. 7:10-CV-256, 2010 WL 4810604, *1 (N.D.N.Y. Nov. 18, 2010) (citation omitted). After applying the correct standard of review, "[a] judge of the 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).

When reviewing the Commissioner's final decision, a court must determine whether the ALJ applied the correct legal standards and whether substantial evidence supports his decision. See Urtz v. Callahan, 965 F. Supp. 324, 326 (N.D.N.Y. 1997) (citing Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987)). Absent legal error, a court will uphold the Commissioner's final decision if there is substantial evidence to support it. See 42 U.S.C. § 405(g). The Supreme Court has defined substantial evidence to mean "'more than a mere scintilla'" of evidence and "'such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Richardson v. Perales, 402 U.S. 389, 401 (1971) (quotation omitted).

B. Plaintiff's objections

1. Plaintiff's foot impairment

In his Report and Recommendation, Magistrate Judge Bianchini noted that Plaintiff's treating orthopedist, Dr. Lemley, concluded that Plaintiff's foot impairment was minimal.

See Report-Rec. at 7-8. In addition, although Dr. Lemley, in interpreting Plaintiff's x-rays, noted "some degree of metatarsus adductus, increased metatarsal angle, and bunion deformity left greater than right," he determined that these conditions were unlikely to result in chronic pain. See Administrative Record ("AR") at 236. Moreover, consultative examiner Dr. Weiskopf indicated that Plaintiff was physically active, playing basketball, cooking, cleaning, and shopping. See id. at 194. Plaintiff's gait was normal, and she ambulated without difficulty; as a result, Dr. Weiskopf concluded that she was not limited in the areas of sitting, standing, or walking. See id. at 194, 196.

Given Dr. Lemley's and Dr. Weiskopf's findings, the Court concludes that substantial medical evidence exists to support the ALJ's finding that Plaintiff's foot impairments do not substantially affect her ability to perform basic work-related activities. Accordingly, the Court ...


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