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Atkyns v. Colvin

United States District Court, N.D. New York

September 16, 2014

DOUGLAS W. ATKYNS, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commission of Social Security, Defendant.

Iaconis Law Firm, CHRISTOPHER D. THORPE, ESQ., Chittenango, NY, for the Plaintiff,

HON. RICHARD S. HARTUNIAN, United States Attorney, JEREMY A. LINDEN, Special Assistant U.S. Attorney, Syracuse, NY, Steven P. Conte, Regional Chief Counsel, Social Security Administration, Office of General Counsel, Region II, New York, NY, for the Defendant.

MEMORANDUM-DECISION AND ORDER

GARY L. SHARPE, Chief District Judge.

I. Introduction

Plaintiff Douglas W. Atkyns challenges defendant Commissioner of Social Security's denial of Disability Insurance Benefits (DIB), seeking review under 42 U.S.C. § 405(g). (Compl., Dkt. No. 1.) In a Report and Recommendation (R&R) filed May 16, 2014, Magistrate Judge Earl S. Hines recommended that the Commissioner's decision be affirmed. (Dkt. No. 19.) Pending are Atkyns' objections to the R&R. (Dkt. No. 24.) For the reasons that follow, the court adopts the R&R in its entirety.

II. Background[1]

On November 6, 2009, Atkyns filed an application for DIB under the Social Security Act. (Tr.[2] at 76, 153-54.) After his application was denied, Atkyns requested a hearing before an Administrative Law Judge (ALJ), which was held on June 17, 2011. ( Id. at 43-75, 87-88.) On July 29, 2011, the ALJ issued a decision denying the requested benefits, which became the Commissioner's final determination upon the Social Security Administration Appeals Council's denial of review. ( Id. at 1-6, 27-42.)

Atkyns commenced the present action by filing a complaint on February 11, 2013, seeking judicial review of the Commissioner's determination. ( See generally Compl.) After receiving the parties' briefs, Judge Hines issued an R&R recommending that the Commissioner's decision be affirmed. ( See generally Dkt. No. 19.)

III. Standard of Review

By statute and rule, district courts are authorized to refer social security appeals to magistrate judges for proposed findings and recommendations as to disposition. See 28 U.S.C. § 636(b)(1)(A), (B); N.D.N.Y. L.R. 40.1, 72.3(d); General Order No. 18. Before entering final judgment, this court reviews report and recommendation orders in cases it has referred to a magistrate judge. If a party properly objects to a specific element of the magistrate judge's findings and recommendations, this court reviews those findings and recommendations de novo. See Almonte v. N.Y. State Div. of Parole, No. Civ. 904CV484GLS, 2006 WL 149049, at *3, *5 (N.D.N.Y. Jan. 18, 2006). In cases where no party has filed an objection, only vague or general objections are made, or a party resubmits the same papers and arguments already considered by the magistrate judge, this court reviews the findings and recommendations of the magistrate judge for clear error. See id. at *4-5.

IV. Discussion

In the R&R, Magistrate Judge Hines found that: (1) any error at step two of the sequential evaluation with respect to the severity of Atkyns' obesity and left foot pain was, at most, harmless; (2) the ALJ's rejection of Atkyns' treating physician's opinions was conducted under the correct legal standard and was supported by substantial evidence; (3) the ALJ's assessment of Atkyns' subjective testimony was conducted under the correct legal standard and was supported by substantial evidence; and (4) the ALJ's inaccurate recitation of the amended alleged onset date[3] was, at most, harmless error. ( Dkt. No. 19 at 4-17.) In objecting to the R&R, Atkyns has repeated many of the same arguments raised before Judge Hines in his motion for judgment on the pleadings, and made new arguments raised for the first time in his objection. ( Dkt. Nos. 14, 24.) In particular, Atykns objects to Judge Hines' finding with respect to the ALJ's severity decision, his decision to give less than controlling weight to the opinions of Atkyns' treating physician, and his credibility determination. (Dkt. No. 24 at 2-17.) Atkyns also objects, for the first time, to the ALJ's weighing of the opinions and findings of consulting psychologist Kristen Barry, non-examining psychological consultant L. Hoffman, and treating psychologist Connie Lee Jones. ( Id. at 8-10, 12-13; see generally Dkt. No. 14 at 7-15.)

Generally, arguments may not be raised for the first time in objections to a magistrate judge's report. See Lewyckyj v. Colvin, No. 3:13-cv-126, 2014 WL 3534551, at *2 (N.D.N.Y. July 17, 2014); Rosello v. Barnhart, 02 Civ. 4629, 2004 WL 2366177, at *3 (S.D.N.Y. Oct. 20, 2004); Abu-Nassar v. Elders Futures. Inc., 88 Civ. 7906, 1994 WL 445638, at *5 n.2 (S.D.N.Y. Aug. 17, 1994). As such, the court finds Atkyns' arguments with respect to his alleged mental issues waived. (Dkt. No. 19 at 8 n.11.) Further, as the substance of Atkyns' arguments with respect to the ALJ's severity decision, his decision to give less than controlling weight to the opinion of Atkyns' treating physician, and his credibility determination was previously raised in Atkyns' brief and considered and rejected by Judge Hines, (Dkt. No. 14 at 3-22; Dkt. No. 19 at 4-16), these "objections, " are general and do not warrant de novo review. See Almonte, 2006 WL 149049 at *4. ...


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