United States District Court, N.D. New York
LACHMAN & GORTON PETER A. GORTON, ESQ.Counsel for
SOCIAL SECURITY ADMIN. JOSHUA L. KERSHNER, ESQ.OFFICE OF
REG'L GEN. COUNSEL- REGION II Counsel for Defendant
DECISION and ORDER
T. SUDDABY CHIEF UNITED STATES DISTRICT JUDGE.
before the Court, in this Social Security action filed by
Heather Hatounian, against the Commissioner of Social
Security (“Defendant” or “the
Commissioner”) pursuant to 42 U.S.C. §§
405(g) and 1383(c)(3), are (1) the Report and Recommendation
of United States Magistrate Judge William B. Mitchell Carter,
recommending that Plaintiff's motion for judgment on the
pleadings be denied, and that Defendant's motion for
judgment on the pleadings be granted; (2) Plaintiff's
objections to the Report and Recommendation; and (3)
Defendant's response to Plaintiff's objections. (Dkt.
Nos. 15-17.) For the reasons set forth below, the Report and
Recommendation is accepted and adopted in its entirety.
Plaintiff makes six arguments in objection to Magistrate
Judge Carter's Report and Recommendation. First,
Plaintiff argues that Magistrate Judge Carter improperly
correlated Plaintiff's deficits in maintaining attention
and concentration with job complexity. (Dkt. No. 16 at
1-5.) Second, Plaintiff argues that Magistrate
Judge Carter failed to address Plaintiff's argument that
she cannot maintain acceptable levels of work pace and would
be unacceptably off-task.
at 1, 5-6.) Third, Plaintiff argues that, in weighing Dr.
Yanusas's opinion concerning Plaintiff's limitation
maintaining attention and concentration, maintaining
acceptable levels of work pace, and staying on task,
Magistrate Judge Carter improperly considered Plaintiff's
alertness, ability to engage in logical and goal-directed
thoughts, fair insight and judgment, and ability to follow
complex commands. (Id. at 1, 6-7.)
Plaintiff argues that, while Magistrate Judge Carter
addressed Plaintiff's ability to handle stress generally,
he failed to address Plaintiff's argument that she cannot
handle stress on an “occasional” basis.
(Id. at 1, 7-10.) Fifth, Plaintiff argues that,
while Magistrate Judge Carter generally addressed
Plaintiff's argument concerning the weight afforded to
Dr. Altmansberger's opinion, he (1) erroneously concluded
that assessments of “moderate” impairments permit
Plaintiff to perform unskilled work, and (2) failed to
consider Plaintiff's arguments concerning application of
the regulatory factors. (Id. at 1-2, 10-13.)
and finally, Plaintiff essentially argues that the Court
should reject Magistrate Judge Carter's recommendation
that the ALJ's step five determination was supported by
substantial evidence because it relied on vocational expert
testimony based on a hypothetical that did not accurately
represent Plaintiff's limitations. (Id. at 2,
DEFENDANT'S RESPONSE TO PLAINTIFF'S
Defendant makes five arguments in her response to
Plaintiff's objections to Magistrate Judge Carter's
Report and Recommendation. First, Defendant argues that
Plaintiff was not disabled due to a deficit in concentration,
persistence or pace. (Dkt. No. 17 at 1-7.) Second, Defendant
argues that Plaintiff was able to maintain an acceptable
level of work pace. (Id. at 7-8.) Third, Defendant
argues that the ALJ properly addressed Plaintiff's
limitation dealing with stress. (Id. at 8-11.)
Fourth, Defendant argues that the ALJ did not err in
considering Dr. Altmansberger's assessment. (Id.
at 11-12.) Fifth, and finally, Defendant argues that the ALJ
properly relied on vocational expert testimony at step five
of the sequential analysis. (Id. at 12-13.)
APPLICABLE LEGAL STANDARD
district court reviewing a magistrate judge's Report and
Recommendation “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).
Parties may raise objections to the magistrate judge's
Report and Recommendation, but they must be “specific
written objections, ” and must be submitted
“[w]ithin 14 days after being served with a copy of the
recommended disposition.” Fed.R.Civ.P. 72(b)(2);
accord, 28 U.S.C. § 636(b)(1)(C). “A
judge of the court shall make a de novo determination of
those portions of the [Report and Recommendation] . . . to
which objection is made.” 28 U.S.C. §
636(b)(1)(C); accord, Fed. R. Civ. P. 72(b)(2).
“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.” Caldwell v.
Crosset, 9-CV-0576, 2010 WL 2346330, at * 1 (N.D.N.Y.
June 9, 2010) (quoting Farid v. Bouey, 554 F.Supp.2d
301, 307 [N.D.N.Y. 2008]) (internal quotation marks omitted).