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Nieves v. Colvin

United States District Court, S.D. New York

September 22, 2014

ROSEMARY NIEVES, Plaintiff,
v.
CAROLYN W. COLVIN, Commissioner of Social Security, Defendant.

MEMORANDUM & ORDER

ALISON J. NATHAN, District Judge.

Plaintiff Rosemary Nieves brought this action under the judicial review provision of the Social Security Act, 42 U.S.C. § 405(g), challenging the final decision of the Commissioner of Social Security ("Commissioner") denying her Disability Insurance Benefits and Supplemental Security Income. The Commissioner moved for judgment on the pleadings under Federal Rule of Civil Procedure 12(c) on January 10, 2014, requesting that the Court affirm the Commissioner's decision and dismiss the complaint. Dkt. No. 13. Plaintiff filed a cross-motion for judgment on the pleadings on February 28, 2014, and requested that the claims be remanded to the Commissioner for a new hearing. Dkt. Nos. 23 & 24.

On April 3, 2014, the Honorable Andrew J. Peck, United States Magistrate Judge, issued a report & recommendation ("R&R") recommending that the Court grant the Commissioner's motion and deny Plaintiff's motion. Dkt. No. 28. Plaintiff timely objected to the R & R. Dkt. No. 30.

This Order assumes familiarity with the facts of the case, which are explained in detail in the R & R. They are incorporated by reference herein. Having reviewed de novo the Administrative Record, the R & R, and the briefing on Plaintiffs objections, the Court modifies the R & R to reflect an alternative basis for declining to remand in light of Plaintiff's newly submitted documents, and adopts the R & R as modified. Accordingly, the Court denies the Plaintiffs motion for judgment on the pleadings, and grants the Commissioner's motion for judgment on the pleadings.

I. Standard of Review

A district 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). When a party properly objects to the magistrate's proposed findings and recommendations, a district court must "make a de novo determination of those portions of the report or specified proposed findings or recommendations." Id. The Court may adopt the portions of the R & R to which there is no objection "as long as no clear error is apparent from the face of the record." Francis v. A & E Stores, Inc., No. 06-cv-1638, 2008 WL 4619858 (CS) (GAY), at *1 (S.D.N.Y. Oct. 16, 2008).

In order to merit de novo review, a party's objections must be specific rather than conclusory or general. See Watson v. Geithner, No. 11-cv-9527 (AJN) (HBP), 2013 WL 5441748, at *2 (S.D.N.Y. Sept. 27, 2013) ("[A] district judge may review for clear error any portions of a magistrate's recommendations to which only conclusory or general' objections are made.") (citing Dixon v. McGinnis, No. 06-cv-39 (RJS), 2012 WL 6621728, at *3 (S.D.N.Y. Dec. 19, 2012)). The objections must, furthermore, have been raised before the magistrate judge, for "a party waives any arguments not presented to the magistrate judge." Id. (citing Tarafa v. Artus, No. 10-cv-3870 (AJN) (HBP), 2013 WL 3789089, at *2 (S.D.N.Y. July 18, 2013)). While courts in this district sometimes state that objections that "simply reiterate[] the original arguments" merit only clear error review, see, e.g., Jones v. Astrue, No. 09-cv-5577 (DAB), 2012 WL 4473258, at *1 (S.D.N.Y. Sept. 28, 2012), this rule lacks support in either 28 U.S.C. § 636(b)(1)(C) and Rule 72(b)(2), and is, moreover, at odds with the rule regarding waiver, see Watson, 2013 WL 5441748, at *2.

Plaintiff timely makes three specific objections to the R & R. Two of them were presented to the magistrate judge in his motion for judgment on the pleadings. The Court will review the portions of the R & R subject to these objections de novo. However, a third argument, that the Administrative Law Judge (ALJ) improperly considered medical record evidence from before the alleged onset of Plaintiff's disability, and failed to develop the record for time period thereafter, was not raised before Judge Peck. This argument has therefore been waived.[1]

II. Discussion

A. Legal Standard

When reviewing a decision of the Commissioner, a court may "enter, upon the pleadings and transcript of the record, a judgment affirming, modifying, or reversing the decision..., with or without remanding the cause for a rehearing." 42 U.S.C. § 405(g). The reviewing court "is limited to determining whether the [Commissioner's] conclusions were supported by substantial evidence in the record and were based on a correct legal standard." Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)). "When there are gaps in the administrative record or the ALJ has applied an improper legal standard, " remand to the Commissioner for further development of the evidence may be appropriate. Pratts v. Chater, 94 F.3d 34, 39 (2d Cir. 1996).

B. Plaintiff's Submission of Clinical Progress Notes from June 29, 2010 to May 8, 2012 Did Not Require Remand

The bulk of Plaintiff's objections to the R & R involves an argument that the Appeals Council should have considered newly submitted clinical records from Beth Israel Medical Center dating from June 29, 2010 to May 8, 2012, when deciding whether Plaintiff was disabled. In particular, Plaintiff objects that one set of notes, from April 8, 2011, should have been part of the administrative record because it was submitted to the Appeals Council, and in the alternative should have formed the basis for a remand to the agency even if it was submitted for the first time before Judge Peck. See Dkt. No. 30 at 1-2 (Pl.'s Objections).

When a claimant submits new evidence to the Appeals Council as part of a request for review of an ALJ's decision, that evidence becomes part of the administrative record upon the Appeals Council's denial of review. Perez v. Chater, 77 F.3d 41, 45 (2d Cir. 1996). In that circumstance, it is the record that includes this evidence that the ...


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