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Lisa Proper v. Michael J. Astrue

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


March 30, 2012

LISA PROPER, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMMISSIONER OF SOCIAL SECURITY, DEFENDANT.

The opinion of the court was delivered by: Glenn T. Suddaby, United States District Judge

MEMORANDUM-DECISION and ORDER

Currently before the Court, in this action for Social Security disability insurance benefits, filed by Lisa Proper ("Plaintiff") against Social Security Commissioner Michael J. Astrue ("Defendant") pursuant to 42 U.S.C. § 405(g), are the following: (1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 11); (2) Defendant's motion for judgment on the pleadings (Dkt. No. 15); (3) the Report-Recommendation of United States Magistrate Judge David E. Peebles, issued pursuant to 28 U.S.C. § 636(b)(1)(A) and (B) and Local Rule 72.3(c) of the Local Rules of Practice for this Court recommending that Plaintiff's motion be denied, Defendant's motion be granted, Defendant's determination be confirmed, and Plaintiff's Complaint be dismissed in its entirety (Dkt. No. 20); and (4) Plaintiff's Objections to the Report-Recommendation (Dkt. No. 22). For the reasons set forth below, Magistrate Judge Peebles' Report-Recommendations is accepted and adopted in its entirety.

I. RELEVANT BACKGROUND

A. Procedural History

Because the parties have demonstrated in their briefs an adequate understanding of this action's procedural history, and neither party has specifically objected to Magistrate Judge Peebles' accurate recitation of that procedural history, the Court adopts that recitation, in this Decision and Order, which is intended primarily for the review of the parties. (See generally Dkt. No. 17, at 7-11 [Report-Rec].)

The Court would add only two points. First, generally, Plaintiff's underlying application for disability insurance benefits ("DIB") was based on her having an alleged disability consisting of "[d]eteriorating discs in back, neck pain, [and] bone spurs in neck," which began on June 20, 2005. (See Administrative Transcript ["Admin. Tr."] at 12-21, 167.) Second, generally, in his decision determining that Plaintiff was not disabled as defined under the Social Security Act, the ALJ found that she did not have an impairment or combination of impairments that meet or medically equal any of the listed, presumptively disabling impairments set forth 20 C.F.R. § 404(P)(1), and she retained the residual functional capacity ("RFC") to perform light work, with certain exceptions. (Admin. Tr. at 10-21.)

B. Parties' Briefing on Their Motions

Generally, in her brief in support of her Complaint, Plaintiff asserts the following seven arguments: (1) the ALJ failed to combine the effects of Plaintiff's impairments including pain, her inability to fully flex forward, turn her head, and her obesity, and he failed to evaluate her obesity in the manner prescribed by pertinent legal authority; (2) the ALJ erred in evaluating the medical evidence, particularly the opinions of Plaintiff's treating physician and her physical therapist; (3) the ALJ failed to explain why Plaintiff's impairments did not meet or equal the Listing of Impairments, particularly Listing 1.04; (4) the ALJ improperly evaluated Plaintiff's credibility, particularly regarding her pain limitations; (5) the ALJ erred in determining Plaintiff's RFC by failing to provide a function-by-function analysis of her impairments; (6) the ALJ erred in relying upon the inconsistent testimony of the vocational expert; and (7) Plaintiff's case should be remanded to Defendant to calculate benefits or alternatively, this case should be heard within a specified time. (See generally Dkt. No. 11.)

Generally, in his brief in response to Plaintiff's brief, Defendant disagrees with each of the seven above-described arguments, and argues that the Commissioner's decision should be affirmed. (See generally Dkt. No. 15.)

Generally, in a reply brief, Plaintiff asserts the following six arguments: (1) the Court should reject Defendant's argument regarding the issue about the ALJ's failure to combine the effects of her impairments; (2) the Court should reject Defendant's argument regarding the weight to be given to the opinion Plaintiff's treating physician and other sources; (3) the Court should reject Defendant's argument regarding the Listing of Impairments; (4) the Court should reject defense counsel's arguments about Plaintiff's credibility; (5) the Court should reject Defendant's arguments regarding the vocational testimony; and (6) the Court should reject the Defendant's argument against using the remedy in Butts v. Barnhart, 388 F.3d 377, 388 (2d Cir. 2004). (See generally Dkt. No. 17.)

C. Magistrate Judge Peebles' Report-Recommendation

In his Report-Recommendation, Magistrate Judge Peebles recommends that Plaintiff's motion be denied, Defendant's motion be granted, Defendant's determination be confirmed, and Plaintiff's Complaint be dismissed in its entirety. (Dkt. No. 20, at 39.) More specifically, Magistrate Judge Peebles renders the following findings and conclusions: (1) the ALJ's determination that the cumulative effects of Plaintiff's impairments do not impair her ability to perform work at the light and sedentary levels, with exceptions noted, was supported by substantial evidence; (2) the ALJ correctly reviewed the medical evidence, including the treating physician's report, and did not improperly reject as controlling any treating source entitled to special deference and inconsistent with his RFC findings; (3) an ALJ correctly considered the combined effects of Plaintiff's impairments, and Plaintiff has failed to show how the combined total effects of her symptoms medically equal the Listing of Impairments under Listing 1.04; (4) the ALJ correctly determined that Plaintiff's claims of debilitating pain are inconsistent with objective evidence in the record; (5) the ALJ properly determined Plaintiff's RFC based on substantial record evidence; and (6) the ALJ properly relied on the testimony of the vocational expert, and performed the proper step analysis to determine whether Plaintiff was capable of performing past relevant work.(Id. at 16-39.)

D. Plaintiff's Objections to the Report-Recommendation

Generally, in her Objections, Plaintiff asserts the following seven arguments: (1) the Magistrate Judge incorrectly analyzed the issue regarding the ALJ's failure to combine the effects of all of Plaintiff's limitations, including her post-surgery symptoms; (2) the Magistrate Judge's finding that the treating physician's opinion was not well supported was outside the scope of review; (3) the Magistrate Judge erred in upholding the ALJ's determination that Plaintiff did not meet or medically equal the Listing of Impairments; (4) the Magistrate Judge erred in upholding the ALJ's credibility assessment; (5) the Magistrate Judge incorrectly analyzed Plaintiff's RFC determination; (6) the Magistrate Judge erred in upholding the ALJ's failure to perform the fourth and fifth steps of the sequential evaluation as to the vocational expert's testimony; and (7) Plaintiff's case should be remanded to the Commissioner to calculate benefits or alternatively, this case should be heard within a specified time. (See generally Dkt. No. 22, Attach. 1.)

II. APPLICABLE LEGAL STANDARDS

A. Standard of Review of Magistrate Judge Peebles' Report-Recommendation

When a specific objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to a de novo review. Fed. R. Civ. P. 72(b)(2); 28 U.S.C. § 636(b)(1)(C). To be "specific," the objection must, with particularity, "identify [1] the portions of the proposed findings, recommendations, or report to which it has an objection and [2] the basis for the objection." N.D.N.Y. L.R. 72.1(c).*fn1 When performing such a de novo review, "[t]he judge may . . . receive further evidence. . . ." 28 U.S.C. § 636(b)(1). However, a district court will ordinarily refuse to consider evidentiary material that could have been, but was not, presented to the magistrate judge in the first instance.*fn2

When only a general objection is made to a portion of a magistrate judge's report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b)(2),(3); Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition.*fn3 Similarly, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review.*fn4 Finally, when no objection is made to a portion of a report-recommendation, the Court subjects that portion of the report-recommendation to only a clear error review. Fed. R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition. When performing such a "clear error" review, "the court need only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation." Id.*fn5

After conducing the appropriate review, 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).

B. Standard Governing Judicial Review of Defendant's Decision

In Parts III.A. and III.B. of his Report-Recommendation, Magistrate Judge Peebles correctly recited the legal standard governing judicial review of Defendant's decision, and the five-step process for evaluating claims of disability under the Social Security Act. (Dkt. No. 20, at 11-16.) As a result, those standards are incorporated by reference in this Decision and Order, which (again) is intended primarily for the review of the parties.

III. ANALYSIS

As an initial matter, the Court finds that, at their core, many of the arguments asserted in Plaintiff's Objections were previously asserted in the two exhaustive briefs that she submitted to Magistrate Judge Peebles. (Compare Dkt. No. 11 [Plf.'s Brief] and Dkt. No. 17 [Plf.'s Reply Brief] with Dkt. No. 22 [Plf.'s Obj.].) For example, the third argument in Plaintiff's Objections (i.e., that the Magistrate Judge erred in upholding the ALJ's determination that Plaintiff did not meet or medically equal the Listing of Impairments) is merely a rehashing of the third argument in her opening brief (i.e., that the ALJ failed to explain why Plaintiff's impairments did not meet or equal the Listing of Impairments) and the third argument in her reply brief (i.e., that the Court should reject Defendant's argument regarding the Listing of Impairments).*fn6 Similarly, the fourth argument in Plaintiff's Objections (i.e., that the Magistrate Judge erred in upholding the ALJ's credibility assessment) is largely (with one minor exception, discussed below) a rehashing of the fourth argument in her opening brief (i.e., that the ALJ improperly evaluated Plaintiff's credibility, particularly regarding her pain limitations) and the fourth argument in her reply brief (i.e., that the Court should reject defense counsel's arguments about Plaintiff's credibility).*fn7

Finally, the sixth argument in Plaintiff's Objections (i.e., that the Magistrate Judge erred in upholding the ALJ's failure to perform the fourth and fifth steps of the sequential evaluation as to the vocational expert's testimony) is merely a rehashing of the sixth argument in her opening brief (i.e., that the ALJ erred in relying upon the inconsistent testimony of the vocational expert) and the fifth argument in her reply brief (i.e., that the Court should reject Defendant's arguments regarding the vocational testimony).*fn8

As explained in Part II.A. of this Decision and Order, when an objection merely reiterates the same arguments made by the objecting party in its original papers submitted to the magistrate judge, the Court subjects that portion of the report-recommendation challenged by those arguments to only a clear error review. Here, after subjecting those portions of the Report-Recommendation challenged by Plaintiff's repetitive arguments to a clear-error review, the Court finds that those portions survive that review.

In any event, even if the Court were to subject the entirety of Magistrate Judge Peebles' Report-Recommendation to a de novo review, the Court would find, and does find, that Magistrate Judge Peebles' thorough and correct Report-Recommendation survives that review. (Dkt. No. 20.) Magistrate Judge Peebles employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. (Id.) As a result, the Court accepts and adopts the Report-Recommendation in its entirety for the reasons stated therein. The Court would add only four brief points.

First, the Court respectfully rejects Plaintiff's argument that Magistrate Judge Peebles incorrectly analyzed the issue regarding the ALJ's alleged failure to combine the effects of all of Plaintiff's limitations, including her post-surgery symptoms. For example, the Court shares Magistrate Judge Peebles' interpretation of Plaintiff's argument as focusing principally on Plaintiff's obesityandthe limitations allegedly associated with that condition. (Compare Dkt. No. 20, at 16 [Report-Rec.] with Dkt. No. 11, at 19-22 [attaching pages "12" through "15" of Plf.'s Brief] and Dkt. No. 17, at 8-10 [attaching pages "3" through "5" of Plf.'s Reply Brief].) Clearly, Magistrate Judge Peebles understood the nature of her argument (as also focusing on other impairments, including her inability to flex forward and turn her head), and evaluated it accordingly. (Dkt. No. 20, at 16, 18.) Similarly, the Court rejects Plaintiff's related argument that Magistrate Judge Peebles' incorrectly relied on Poupore v. Astrue, 566 F.3d 303, 305-06 (2d Cir. 2009), and two district court cases, for the point of law that the plaintiff bears the burden to show that her RFC is more limited than that found by the ALJ. (Dkt. No. 20, at 35.)*fn9

Second, the Court respectfully rejects Plaintiff's argument the ALJ never found that the May 3, 2006, progress note of Dr. Paul Spurgas (which stated, in pertinent part, that he thought Plaintiff would be unable to return to her work) was not controlling because it presented an issue properly resolved by Defendant, and thus Magistrate Judge Peebles should not have done so as a post hoc rationalization. (Dkt. No. 22, Attach. 1, at 16 [attaching page "11" of Plf.'s Obj.].) The Court finds that the ALJ did indeed reject Dr. Spurgas' progress note as a treating source report concerning symptomology, on the ground that (1) the progress note failed to include specific findings of physical examinations, and (2) the next day, he released Plaintiff for work. See Admin. Tr. at 17 ("His progress notes fail to detail any specific findings of physical examinations and, on May 4, 2006, Dr. Spurgas released the claimant for work, but detailed a lifting restriction on twenty-five pounds.").

Third, the Court respectfully rejects Plaintiff's argument that the ALJ never relied on Plaintiff's lack of complaints of pain to Dr. Robert Brandis, M.D., to discredit her regarding the extent of her pain, and thus Magistrate Judge Peebles should not have done so as a post hoc rationalization. (Dkt. No. 22, Attach. 1, at 22 [attaching page "17" of Plf.'s Obj.].) The ALJ did rely on the frequency (or infrequency) of Plaintiff's complaints of pain to her medical care providers, including Dr. Brandis, to discredit her about the extent of her pain.*fn10 The Court reaches a similar conclusion with regard to Plaintiff's argument that the ALJ never relied on the findings of Judith Bodnar, M.D. (regarding Plaintiff's ability to sit for six hours in an eight-hour work day), to discredit her regarding the extent of her pain (Dkt. No. 22, Attach. 1, at 22 [attaching page "17" of Plf.'s Obj.]); again, the ALJ did rely on that evidence for such a purpose.*fn11

Fourth, the Court respectfully rejects Plaintiff's argument that Magistrate Judge Peebles' misinterpreted her RFC argument (which was allegedly presented on pages 12 through 15 of her opening brief, and pages 3 through 5 of her reply brief) as being "centered upon alleged restrictions on her ability to sit." (Dkt. No. 22, Attach. 1, at 22 [attaching page "17" of Plf.'s Obj.].) Plaintiff's RFC argument was, at significant part, presented on pages 22 and 23 of her opening brief, which did in fact center on Plaintiff's ability to sit. (Dkt. No. 11, at 29-30 [attaching pages "22" and "23" of Plf.'s Brief].) Furthermore, Plaintiff's argument that Magistrate Judge Peebles' focus on her sitting ignored her other impairments is undermined by her prior argument (discussed above) that he focused too much on her obesity.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 20) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 11) is DENIED; and it is further

ORDERED that Defendant's motion for judgment on the pleadings (Dkt. No. 15) is GRANTED; and it is further

ORDERED that Defendant's decision denying disability benefits is AFFIRMED; and it is further

ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED.


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