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Terry L. Schmitt v. Michael J. Astrue

October 11, 2012




This matter comes before the Court following a Report-Recommendation filed on July 24, 2012 by the Honorable Andrew T. Baxter, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and L.R. 72.3(d) of the Northern District of New York. Dkt. No. 16 ("Report-Recommendation"). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Terry L. Schmitt ("Plaintiff"), which were filed on August 7, 2012. Dkt. No. 17 ("Objections").


Plaintiff filed an application for Supplementary Security Income ("SSI") on June 21, 2006, alleging disability beginning June 12, 2006. Dkt. No. 12 ("Plaintiff's Brief") at 1. After an October 4, 2008 hearing before an Administrative Law Judge ("ALJ"), Plaintiff's initial application was denied. Id. On May 1, 2009, the Appeals Council remanded the matter for further hearing. Id. During the second hearing, held on May 6, 2010, testimony was given by Plaintiff, who was represented by counsel, as well as by medical expert ("ME") Thomas Weiss, M.D. and vocational expert ("VE") Esperanza Distefano. Dkt. No. 15 ("Defendant's Brief") at 2. By written decision dated June 18, 2010, the ALJ denied Plaintiff's application. Pl.'s Br. at 1; Def.'s Br. at 2. That decision became the final decision of the Commissioner on May 20, 2011 when the Appeal's Council denied Plaintiff's request for review. Def.'s Br. 2. Plaintiff subsequently filed this appeal.

In his Report-Recommendation, Judge Baxter recommended that the Commissioner's decision denying Plaintiff SSI benefits be affirmed in full. Report-Rec. For the following reasons, the Court adopts the Report-Recommendation in its entirety and dismisses Plaintiff's Complaint. Dkt. No. 1 ("Complaint").


The Court is to "make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made." 28 U.S.C. § 636(b). Where, however, an objecting "party makes only conclusory or general objections, or simply reiterates his original arguments, the Court reviews the report and recommendation only for clear error." Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008) (quoting McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007)) (citations and quotations omitted); see alsoBrown v. Peters, No. 95-CV-1641, 1997 WL 599355, at *2-3 (N.D.N.Y. Sept. 22, 1997). "A [district] judge . . . 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).


A. The Report-Recommendation

In his Report-Recommendation, Judge Baxter found the ALJ's conclusion that Plaintiff is not disabled, and therefore is not eligible for SSI benefits, to be legally valid and supported by substantial evidence in the record. In making that finding, Judge Baxter first considered the propriety of the ALJ's Residual Functional Capacity ("RFC") determination.*fn1 That determination was found to be valid by Judge Baxter because the ALJ properly performed a function-by-function analysis of Plaintiff's capabilities and considered the substantial consistent evidence in the record. Report-Rec. at 19.

In making his RFC determination, the ALJ rejected the opinions of a State Agency review physician; Mahesh Kuthuru, M.D. and Nurse Practitioner Champney, both of whom worked at Upstate Pain Medicine, P.C.; and Margaret Sennett, M.D. As to Dr. Sennett, Judge Baxter found that the ALJ was justified in rejecting her restrictive assessment of Plaintiff's capabilities,*fn2 despite her status as a treating physician, because she only saw Plaintiff twice and neither time reported any physical examination findings. Report-Rec. at 13-14. Judge Baxter also rejected Plaintiff's argument that H. Douglas Wilson, M.D., a colleague of Dr. Sennett's at Oswego County Opportunities, Inc. Health Centers, provided support for Dr. Sennett's opinion in the note he gave to Plaintiff after one of Plaintiff's evaluations. Id. at 15; Pl.'s Br. at 2.

Judge Baxter also found valid the ALJ's decision to reject Plaintiff's testimony on his subjective pain. Report-Rec. at 21. Although Plaintiff had rated his pain at "8 to 10/10 in spite of medication," the ALJ did not find that to be credible. Id. Because the ALJ based his credibility determination on objective medical evidence in the record, as well as Plaintiff's testimony during the first and second hearings on his daily activities and his no longer taking narcotic pain medication, Judge Baxter found that determination to be supported by substantial evidence. Id.

Finally, Judge Baxter found that because the hypotheticals posed to VE Distefano were based on a valid RFC determination, VE Distefano's testimony, in which she identified new accounts clerk, order clerk, and surveillance system monitor as jobs Plaintiff would be capable of ...

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