United States District Court, W.D. New York
DECISION AND ORDER
HONORABLE MICHAEL A. TELESCA United States District Judge
matter comes before the Court following a Report &
Recommendation (“R&R”) (Dkt #18) filed on
October 24, 2016, by Hon. Hugh B. Scott, United States
Magistrate Judge, pursuant to 28 U.S.C. § 636(b)(1)(B)
and Local Rule 72(b) and (c) of the Western District of New
York. In the R&R, Magistrate Judge Scott recommended that
the Commissioner's decision denying Supplemental Security
Income (“SSI”) and Disability Insurance Benefits
(“DIB”) to Barbara Ann Lindsley
(“Plaintiff”) be affirmed in full.
January 5, 2010, Plaintiff filed applications for DIB and SSI
(“the First Applications”). (T.60,
On March 28, 2012, an administrative law judge issued a
decision finding that Plaintiff was not disabled (T.17-32).
The Appeals Council denied Plaintiff's request for review
on May 28, 2013. (T.1-5).
19, 2013, Plaintiff filed subsequent applications for DIB and
SSI (“the Second Applications”), which were
granted on October 15, 2013, at the initial administrative
level, by a single decision-maker (“SDM”)
(T.788-89; 790-96). The SDM found that Plaintiff was disabled
as of March 29, 2012, the day after the ALJ's unfavorable
decision on the First Applications. (T.789, 790).
25, 2013, Plaintiff commenced an action in this District
appealing the denial of the First Applications. See
Lindsley v. Colvin, No. 1:13-cv-00771 (W.D.N.Y.). On
September 8, 2014, Hon. Richard J. Arcara, United States
District Judge, adopted the R&R issued on August 11,
2014, by Magistrate Judge Scott, and remanded the First
Applications for further administrative proceedings.
November 10, 2014, the Appeals Council reopened the favorable
determination made on the Second Applications because it
found “good cause” to do so based upon a review
of the evidence in the record. (T.720). The Appeals Council
explained that the SDM had improperly concluded that
Plaintiff had “marked” limitations in both
maintaining social functioning and maintaining concentration,
persistence, or pace. The Appeals Council then consolidated
the First and Second Applications, and directed
Administrative Law Judge Timonthy McGuan (“the
ALJ”) to render a decision on both sets of claims.
(T.717-18, 813-16). On August 19, 2015, the ALJ issued a
decision, finding that Plaintiff has not been under a
disability at any time relevant to the First and Second
by counsel, Plaintiff timely commenced the instant action,
and both parties moved for judgment on the pleadings.
Magistrate Judge Scott issued his R&R on October 24,
2016, finding that the Commissioner's decision should be
affirmed. Specifically, the R&R found that (1) the
Appeals Council had good cause to reopen the favorable
determination on the Second Applications; (2) the ALJ
appropriately considered the opinion by Physician's
Assistant Lemley; and (3) the ALJ appropriately considered
the opinion by Nurse Practitioner Kleckner.
her attorney, Plaintiff filed Objections (“Pl's
Obj.”) (Dkt #19) to the R&R on November 7, 2016.
The only issue raised in Plaintiff's Objections is
whether the Magistrate Judge erred when he found that the
Appeals Council properly reopened the original favorable
determination rendered on Plaintiff's Second
Applications. The Acting Commissioner of Social Security
Carolyn W. Colvin (“the Commissioner”) filed a
Response to Plaintiff's objections, and Plaintiff filed a
Reply. The matter subsequently was transferred to the
reasons discussed below, the Court adopts the R&R in full
and dismisses Plaintiff's Complaint.
reviewing the R&R of a dispositive matter from a
magistrate judge, the district court ‘may adopt those
portions of the Report to which no objections have been made
and which are not facially erroneous.'”
Nansaram v. City of N.Y., No. 12-CV-5038 NGG RLM,
2015 WL 5518270, at *2 (E.D.N.Y. Sept. 17, 2015) (quotation
and citation omitted); see also Fed.R.Civ.P. 72(b),
Advisory Comm. Notes (when a party makes no objection, or
only general objections to a portion of an R&R, the
district judge reviews it for clear error or manifest
injustice). To preserve a claim for review by the district
court, the party must make sufficiently specific objections
to the R&R. E.g., Mario v. P & C Food
Mkts., Inc., 313 F.3d 758, 766 (2d Cir. 2002). When,
however, a party makes specific objections, the district
judge must undertake 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)(1)(C), and “may . . .
receive further evidence[.]” Id.