United States District Court, W.D. New York
LEON K. MITCHELL, JR., Plaintiff,
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.
DECISION AND ORDER
MICHAEL A. TELESCA, United States District Judge
by counsel, Leon K. Mitchell, Jr. (“plaintiff”)
brings this action pursuant to Title XVI of the Social
Security Act (“the Act”), seeking review of the
final decision of the Commissioner of Social Security
(“the Commissioner”) denying his application for
supplemental security income (“SSI”). The Court
has jurisdiction over this matter pursuant to 42 U.S.C.
§ 405(g). The matter was initially before the Court on
the parties' cross motions for judgment on the
pleadings. The parties' motions were referred to
Magistrate Judge Leslie G. Foschio for consideration of the
factual and legal issues presented, and to prepare and file a
Report and Recommendation (“R&R”) containing
a recommended disposition of the issues raised.
R&R dated August 8, 2016, Magistrate Judge Foschio
recommended that the Commissioner's motion be granted.
Doc. 17. Plaintiff filed objections on August 22, 2016. Doc.
18. The Court (Vilardo, J.) held oral argument on the
objections January 5, 2017. For the reasons set forth below,
the Court overrules plaintiff's objections and adopts the
R&R in its entirety.
record reveals that in June 2009, plaintiff (d/o/b December
8, 1975) applied for SSI, alleging disability as of February
2006. After his application was denied,
plaintiff requested a hearing, which was held before
administrative law judge Marilyn Zahm (“the ALJ”)
on April 11, 2011. The ALJ issued an unfavorable decision on
June 1, 2012. The Appeals Council granted review of that
decision and this timely action followed. The Court
incorporates by reference the R&R's thorough summary
of the administrative record. See doc. 17 at 2-10.
Report and Recommendation
motion for judgment on the pleadings argues that (1) the ALJ
failed to properly weigh the medical opinions; (2) the ALJ
improperly substituted her own judgment for medical opinion;
(3) the ALJ did not properly consider obesity; (4) the ALJ
failed to fully develop the record; and (5) the ALJ did not
consider all of plaintiff's severe impairments. The
R&R rejected these arguments and found that the ALJ's
decision was supported by substantial evidence. Accordingly,
the R&R recommended that the Commissioner's motion be
reviewing a magistrate judge's report and recommendation,
a district court must “make 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), and “may accept, reject, or
modify, in whole or in part, the findings or recommendations
made by the magistrate judge[.]” Id.
specifically objects to each of Judge Foschio's
conclusions, although the objections essentially reiterate
his arguments on the original motion. The Court has reviewed
the administrative record and finds that Judge Foschio's
recommendations are fully supported by the record.
Failure to Properly Weigh Medical Opinions and Failure to
Clarify Opinions of the Treating Physician
primary argument is that the ALJ failed to properly weigh the
medical opinions of record and failed to clarify the opinion
of plaintiff's treating physician, Dr. Siaw. Plaintiff
argues that Judge Foschio erred in failing to consider that
consulting reviewing physician Dr. Dale specialized in
rheumatology, whereas consulting reviewing physician Dr.
Trimble was an internist. Plaintiff contends that the ALJ
erred in giving greater weight to Dr. Trimble's opinion
over Dr. Dale's. However, upon a review of the record,
the Court concludes that the ALJ gave good reasons for
rejecting Dr. Dale's opinion in favor of Dr. Dave's.
As the ALJ pointed out, evidence in the record, including EMG
study indicating “no electrodiagnostic evidence of
severe painful neuropathy” as well as subsequent
treatment notes and medical testimony at the hearing
indicating no evidence of deep vein thrombosis
(“DVT”), undermined the conclusions of Dr.
Dale's reviewing opinion. The ALJ was entitled to give
more weight to Dr. Trimble's opinion based on its overall
consistency with the medical record. See, e.g., Beasock
v. Colvin, 2014 WL 421324, *9 (N.D.N.Y. Feb. 4, 2014)
(finding that ALJ “did not exceed the bounds of his
discretion when electing to give great weight to opinions of
[a] reviewing physician” where those opinions were
“consistent with the record as a whole”).
further argues that the R&R erred in concluding that the
ALJ properly gave little weight to several opinions of
plaintiff's treating physician, Dr. Siaw. As a corollary
argument, plaintiff contends that the ALJ should have further
clarified Dr. Siaw's opinions by subpoenaing him to
testify. However, the ALJ did clarify certain aspects of Dr.
Siaw's opinions with two sets of interrogatories. See T.
1497-1500 (responses dated July 19, 2011), 1507-12 (responses
dated October 25, 2011). Dr. Siaw's responses indicate,
as the R&R found, that he based his conclusions largely
on plaintiff's own reports rather than objective medical
testing. Dr. Siaw stated that objective medical evidence
supporting his opinion included a “failed” 2006
back surgery and “old MRI records” showing
evidence of lumbar radiculopathy. The Court finds that the
ALJ did not fail to develop the record by clarifying Dr.
Siaw's opinions, given the two sets of ...