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Weather v. Astrue

United States District Court, N.D. New York

December 27, 2012

MICHAEL J. ASTRUE, Commissioner of Social Security, Defendant

Order Filed: November 5, 2012

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[Copyrighted Material Omitted]

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[Copyrighted Material Omitted]

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For Jessica Weather, Plaintiff: Peter W. Antonowicz, LEAD ATTORNEY, Office of Peter W. Antonowicz, Rome, NY.

For Michael J. Astrue, as Commissioner of the Social Security Administration, Defendant: David L. Brown, Social Security Administration, Office of Regional General Counsel, Region II, New York, NY.

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Lawrence E. Kahn, U.S. District Judge.


This matter comes before the Court following a Report-Recommendation filed on November 5, 2012 by the Honorable Victor E. Bianchini, United States Magistrate Judge, pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d) of the Northern District of New York. Dkt. No. 18 (" Report-Recommendation" ). After fourteen days from the service thereof, the Clerk has sent the entire file to the undersigned, including the Objections by Plaintiff Jessica Weather (" Plaintiff" ), which were filed on November 21, 2012, and the Reply to Plaintiff's Objections, which was filed by Defendant on December 5, 2012. Dkt. Nos. 19 (" Objections" ), 20 (" Reply" ).


Plaintiff filed an application for Supplementary Security Income (" SSI" ) on July 17, 2009, alleging disability beginning on June 6, 2007. Dkt. No. 10 (" Transcript" ) at 108-111. After her initial application was denied, Plaintiff requested a hearing before an Administrative Law Judge (" ALJ" ). A hearing was held on September 10, 2010, before ALJ Bruce S. Fein. Id. at 27. Plaintiff appeared at the hearing with her attorney and testified. Id. at 31-56.

On November 29, 2010, the ALJ issued a written decision finding that Plaintiff was not disabled and was therefore not entitled to benefits. Id. at 13-21. The ALJ's decision became the Commissioner's final decision on May 26, 2011, when the Appeals Council denied Plaintiff's request for review. Id. at 1-3. Plaintiff, through counsel, timely filed her appeal and commenced this action on July 28, 2011. Dkt. No. 1 (" Complaint" ). Defendant filed an Answer on December 14, 2011. Dkt. No. 9.

Plaintiff filed her supporting Brief on March 5, 2012. Dkt. No. 14 (" Plaintiff's Brief" ). And, on April 16, 2012, Defendant filed a Brief in opposition. Dkt. No. 15 (" Defendant's Brief" ). Pursuant to General Order No. 18, Judge Bianchini proceeded -- and the Court proceeds -- as though both parties had accompanied their Briefs with motions for judgment on the pleadings.

In his Report-Recommendation, Judge Bianchini recommended that the Commissioner's decision denying Plaintiff SSI benefits be affirmed in full. Report-Rec.

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For the following reasons, the Court adopts the Report-Recommendation in its entirety and dismisses Plaintiff's Complaint.


A. Review of Magistrate's Report-Recommendation

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 also Brown 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).

B. Review of the ALJ's Determination

A court reviewing a denial of disability benefits may not determine de novo whether an individual is disabled. See 42 U.S.C. § § 405(g), 1383(c)(3); Wagner v. Secretary of HHS., 906 F.2d 856, 860 (2d Cir. 1990). Instead, a reviewing court will only reverse the Commissioner's determination if the correct legal standards were not applied or if the determination was not supported by substantial evidence. Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (" Where there is a reasonable basis for doubt whether the ALJ applied correct legal principles, application of the substantial evidence standard to uphold a finding of no disability creates an unacceptable risk that a claimant will be deprived of the right to have her disability determination made according to the correct legal principles." ); see also Grey v. Heckler, 721 F.2d 41, 46 (2d Cir. 1983); Marcus v. Califano, 615 F.2d 23, 27 (2d Cir. 1979).

The substantial evidence standard requires evidence amounting to " more than a mere scintilla," and has been defined as " such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 28 L.Ed.2d 842 (1971). If the evidence is deemed susceptible to more than one rational interpretation, then the Commissioner's conclusion must be upheld. See Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). If supported by substantial evidence, the Commissioner's finding must be sustained " even where substantial evidence may support the plaintiff's position and despite that the court's independent analysis of the evidence may differ from the [Commissioner's]." Rosado v. Sullivan, 805 F.Supp. 147, 153 (S.D.N.Y. 1992). That is, a court must afford the Commissioner's determination considerable deference and may not substitute " its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review." Valente v. Sec'y of Health & Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984) (citing Bastien v. Califano, 572 F.2d 908, 912 (2d Cir.1978)).

The Commissioner has established a five-step sequential evaluation process to determine whether an individual is disabled as defined under the Social Security Act.[1] See 20 C.F.R. § § 416.920, 404.1520. The United States Supreme Court recognized

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the validity of this analysis in Bowen v. Yuckert, and the five-step process remains the proper approach for analyzing whether a claimant is disabled. 482 U.S. 137, 140-42, 107 S.Ct. 2287, 96 L.Ed.2d 119 (1987). While the claimant has the burden of proof as to the first four steps, the Commissioner has the burden of proof on the fifth and final step. See id. at 146 n.5; Ferraris v. Heckler, 728 F.2d 582 (2d Cir. 1984). The final step of the inquiry is, in turn, divided into two parts. First, the Commissioner must assess the claimant's job qualifications by considering his or her physical ability, age, education, and work experience. Second, the Commissioner must determine whether jobs exist in the national economy that a person having the claimant's qualifications could perform. See 42 U.S.C. § 423(d)(2)(A); 20 C.F.R. § § 416.920(g), 404.1520(g); Heckler v. Campbell, 461 U.S. 458, 460, 103 S.Ct. 1952, 76 L.Ed.2d 66 (1983).


A. The Report-Recommendation

The Report-Recommendation is structured around what Judge Bianchini identifies as Plaintiff's two " principal arguments." Report-Rec. at 6. " First, Plaintiff challenges the ALJ's residual functional capacity ('RFC') determination. Second, Plaintiff contends that the ALJ did not properly assess her credibility." Id.

Central to the first question is the ALJ's reliance -- or lack thereof -- on the opinion of Plaintiff's treating physician, Dr. Pierre Herard. Id. at 7-9. On appeal from the ALJ's determination, Plaintiff contended that the ALJ had not adhered to the " treating physician's rule" and had erroneously disregarded Dr. Herard's opinions.[2] Pl.'s Br. at 7-11. In rendering his decision, the ALJ afforded no weight to Dr. Herard's opinions, concluding that they were inconsistent with the physician's treatment notes and contradicted by the overall medical record. Tr. at 19. Emphasizing that " [c]onflicts in evidence . . . are for the Commissioner to resolve" and that " [i]f there are conflicts in the medical evidence, it is the ALJ's decision that controls as factfinder," Judge Bianchini concluded that he could not find reversible error on this issue. Report-Rec. at 12

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(citing White v. Comm'r of Social Security, No. 06-CV-0564, 2008 WL 3884355, at *11 (N.D.N.Y. Aug. 18, 2008) (citing Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983))).

In the case of Plaintiff's second argument, her basic contention is that the ALJ erred in concluding that Plaintiff's complaints of disabling pain were not credible. See generally Pl.'s Br. at 11-16. Plaintiff emphasizes that it is not sufficient for an ALJ simply to state that she has found a claimants statements to be incredible; rather, the ALJ must adhere to a specific formula and rely on a specific set of factors in reaching a credibility determination.[3] See generally id. Specifically, in situations where a " plaintiff's pain contentions are not supported by objective medical evidence," Goodale v. Astrue, No. 11-CV-821, 32 F.Supp.3d 345, 2012 WL 6519946, at *10 (N.D.N.Y. Dec. 13, 2012), the ALJ must consider:

1. The claimant's daily activities;
2. The location, duration, frequency, and intensity of pain or other symptoms;
3. Precipitating and aggravating factors;
4. Type, dosage, effectiveness, and side effects of medication that the claimant has taken to alleviate her symptoms;
5. Present or past treatment, other than medication, for relief of pain or other symptoms;
6. Any measures the claimant uses or has used to relieve her pain or other symptoms; and
7. Other factors concerning functional limitations and restrictions due to pain or other symptoms.

Bush v. Shalala, 94 F.3d 40, 46 n.4 (2d Cir. 1996) (citing 20 C.F.R. § 404.1529(c)(3); SSR 88-13).

In the Report-Recommendation, Judge Bianchini concludes that the ALJ adhered to these guidelines in assessing Plaintiff's credibility and that there was substantial evidence -- based on the testimony of other doctors and experts -- to support the ALJ's finding. See generally Report-Rec. at 14-16. Further, Judge Bianchini emphasizes the unique ability of an ALJ to make credibility determinations while " directly observing a claimant's demeanor and other indicia of credibility." Id. at 15 (citing Tejada v. Apfel, 167 F.3d 770, 776 (2d Cir. 1999) (citing Pascariello v. Heckler, 621 F.Supp. 1032, 1036 (S.D.N.Y. 1985)); Snell v. Apfel, 177 F.3d 128, 135 (2d Cir. 1999)).

B. Objections

Plaintiff raises three general objections to the Report-Recommendation. See Obj. at 1.[4] First, Plaintiff contends that Judge Bianchini failed to address " [P]laintiff's assertion that the Social Security Administration should have employed the services of a vocational expert." Id. Second, Plaintiff contends that Judge Bianchini failed to address her claims that " her disability was caused by conditions in addition to 'myofascial cervical spine and neck pain [and] left shoulder and wrist pain.'" Id. Third, Plaintiff argues that Judge Bianchini failed to consider that the consultative physicians whose findings supported the ALJ's decision were hired by the worker's compensation board and offered opinions only on " work-related injuries." Id.

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C. Decision to Adopt the ...

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