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Prestia v. Colvin

United States District Court, N.D. New York

March 27, 2015

CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.


DAVID B. MYERS, ESQ., SOCIAL SECURITY ADMINISTRATION, Office of General Counsel New York, New York, Attorneys for Defendant.


MAE A. D'AGOSTINO, District Judge.


Plaintiff brought this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the Commissioner of Social Security's ("Commissioner") decision to deny his application for Disability Insurance Benefits ("DIB"). This matter was referred to United States Magistrate Judge Therèse Wiley Dancks for a Report and Recommendation pursuant to 28 U.S.C. § 636(b) and Local Rule 72.3(d), familiarity with which is assumed. Magistrate Judge Dancks recommended that this Court affirm the Commissioner's decision denying Plaintiff's application for benefits and dismiss the complaint. See Dkt. No. 17. Presently before the Court are Plaintiff's objections to the Report and Recommendation. See Dkt. No. 18.


Plaintiff applied for DIB on January 3, 2011, alleging a disability onset date of December 29, 2010. See Dkt. No. 9, Administrative Transcript ("T."), at 12, 117-22. The application was initially denied on August 1, 2011. See id. at 63-68. Plaintiff requested a hearing, which was held on September 10, 2012 before Administrative Law Judge Elizabeth W. Koennecke ("ALJ"). See id. at 26-55. The ALJ issued a decision on October 10, 2012, finding that despite severe impairments - lumbar facet arthropathy and osteoarthritis of the right shoulder - Plaintiff was not disabled. See id. Request for review by the Appeals Council was timely filed ( see id. at 7-8) and, on November 13, 2013, the request was denied rendering the ALJ's decision the Commissioner's final decision. See id. at 1. Plaintiff commenced this action for judicial review of that decision by filing a complaint on December 18, 2013, see Dkt. No. 1, and both parties moved for judgment on the pleadings. See Dkt. Nos. 15, 16.


A. Standard of Review

In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether a plaintiff is disabled. See 42 U.S.C. §§ 405(g), 1383(c)(3); Wagner v. Sec'y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). Rather, the Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied, and whether the decision is supported by substantial evidence. See Lamay v. Comm'r of Soc. Sec., 562 F.3d 503, 507 (2d Cir. 2009), cert. denied, 559 U.S. 962 (2010); Schaal v. Apfel, 134 F.3d 496, 500-01 (2d Cir. 1998). "Substantial evidence" is evidence that amounts to "more than a mere scintilla, " and it 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 (1971) (citations and quotations omitted).

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). In other words, this 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 and Human Servs., 733 F.2d 1037, 1041 (2d Cir. 1984).

Pursuant to 28 U.S.C. § 636(b)(1)(C), this Court engages in a de novo review of any part of a Magistrate Judge's Report and Recommendation to which a party specifically objects. Failure to timely object to any portion of a Magistrate Judge's Report and Recommendation operates as a waiver of further judicial review of those matters. See Roland v. Racette, 984 F.2d 85, 89 (2d Cir. 1993) (quoting Small v. Sec'y of Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989)). "To the extent, ... that [a] party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Watson v. Astrue, No. 08 Civ. 1523, 2010 WL 1645060, *1 (S.D.N.Y. Apr. 22, 2010) (citing, inter alia, Ortiz v. Barkley, 558 F.Supp.2d 444, 451 (S.D.N.Y. 2008) (observing that "[r]eviewing courts should review a report and recommendation for clear error where objections are merely perfunctory responses, argued in an attempt to engage the district court in a rehashing of the same arguments set forth in the original petition") (citation and internal quotation marks omitted)).

B. Report and Recommendation

In her March 5, 2015 Report and Recommendation, Magistrate Judge Dancks found that the ALJ applied the correct legal standard when she determined that Plaintiff's past work as a census worker was substantial gainful activity and that work qualified as past relevant work, even though it had been performed on a part-time basis. See Dkt. No. 17. Further, according to Magistrate Judge Dancks, the ALJ was only required to find that Plaintiff was able to perform past relevant work, either as he had performed it or as that work is generally performed. See id. Magistrate Judge Dancks found that substantial ...

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