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Brenda Osborne Pavia v. Michael J. Astrue

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK


September 25, 2012

BRENDA OSBORNE PAVIA, PLAINTIFF,
v.
MICHAEL J. ASTRUE, COMM'R OF SOC. SEC., 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 by Brenda Osborne Pavia ("Plaintiff") against Social Security Commissioner Michael J. Astrue ("Defendant") seeking disability insurance benefits pursuant to 42 U.S.C. § 405(g), is 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 this action be remanded to the Commissioner for further proceedings in accordance with the Report-Recommendation. (Dkt. No. 15.)

I. RELEVANT BACKGROUND

A. Procedural History

Because neither party has objected to Magistrate Judge Peebles' Report-Recommendation, which sets forth the procedural background of this action, the Court adopts the Report-Recommendation's description of the procedural background of this action. (See generally Dkt. No. 15, at Part II.)

In December 2006, Plaintiff applied for disability insurance benefits ("DIB") under the Social Security Act based on a back disc condition and nerve damage in her left arm which left her unable to work. (See Administrative Transcript ["T."] at 102-104, 119.)*fn1 In March 2007, her application was denied by the Social Security Administration. (T. at 58-61.) On April 30, 2009, a hearing was held before an Administrative Law Judge ("ALJ") of the Social Security Administration. (T. at 21-50

On June 1, 2009, the ALJ issued his decision finding that Plaintiff was not disabled. (T. at 9-20.) Plaintiff appealed from the ALJ's decision to the Social Security Administration's Appeals Council; and on June 1, 2010, the Appeals Council denied Plaintiff's request for review, making the ALJ's decision the final decision of Defendant. (T. at 6-8.) On July 7, 2010, Plaintiff commenced this action in federal court. (Dkt. No. 1.)

Generally, in support of her Complaint, Plaintiff makes the following three arguments:

(1) the ALJ erred in finding that Plaintiff's headaches, thoracic spinal condition, and obesity are not severe impairments (Dkt. No. 10 at 20-23); (2) the ALJ's assessment of Plaintiff's RFC is not supported by substantial evidence because the ALJ failed to develop the record and relied on the opinions of the agency's consultative examiners (id. at 23-28); and (3) because the ALJ determined Plaintiff's testimony was not credible, the ALJ failed to credit Plaintiff's 25-year work history (id. at 28-30).

Generally, in response, Defendant makes the following three arguments: (1) the record evidence does not support a finding that Plaintiff's headaches, thoracic spinal condition, and obesity are severe impairments (Dkt. No. 12 at 18-20); (2) the ALJ's RFC finding is supported by substantial evidence (id. at 20-25); and (3) the ALJ applied the appropriate legal standard in determining that Plaintiff retained the ability to perform work existing in significant numbers in the national economy (id. at 25-26).

B. Magistrate Judge Peebles' Report-Recommendation

On August 20, 2012, Magistrate Judge Peebles issued a Report-Recommendation, in which he made the following five conclusions: (1) there is substantial evidence to support the ALJ's finding that Plaintiff's obesity and thoracic spine condition were not severe impairments (Dkt. No. 15 at 20-25); (2) although the ALJ erred in failing to classify Plaintiff's headaches as a severe impairment, such error was harmless because the ALJ properly considered Plaintiff's headaches in making her RFC assessment (id. at 25-27); (3) although there are some inconsistencies within the record, the record, as a whole, provides substantial evidence to support the ALJ's RFC assessment (id. at 27-33); (4) the ALJ erred in failing in "fully assess[ing] plaintiff's subjective complaints, [by] applying the seven factors listed in 20 C.F.R. § 404.1529(c)(3)" (id. 33-37); and (5) the ALJ erred failing to consider Plaintiff's "uninterrupted twenty-five year [work] history" when evaluating the credibility of Plaintiff's claim that she cannot work (id. at 37). As a result of these last two conclusions, Magistrate Judge Peebles recommends remand so that the ALJ can "provide a more thorough explanation for her assessment of plaintiff's credibility and its effect on her RFC finding." (Dkt. No. 15 at 37.)

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).*fn2 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.*fn3

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.*fn4 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.*fn5 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.*fn6

After conducting 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 his Report-Recommendation, Magistrate Judge Peebles correctly recited the legal standard governing judicial review of Defendant's decision. (Dkt. No. 15, at Part III.A.) As a result, this standard is incorporated by reference in this Decision and Order, which is intended primarily for the review of the parties.

III. ANALYSIS

After carefully reviewing all of the papers in this action, including Magistrate Judge Peebles' Report-Recommendation, the Court concludes that Magistrate Judge Peebles' thorough Report-Recommendation is correct in all respects.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.

ACCORDINGLY, it is

ORDERED that Magistrate Judge Peebles' Report-Recommendation (Dkt. No. 15) is ACCEPTED and ADOPTED in its entirety; and it is further

ORDERED that the case is remanded back to the Commissioner for further proceedings consistent with the Report-Recommendation (Dkt. No. 15).


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