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Mitchell v. Colvin

United States District Court, W.D. New York

May 12, 2017

LEON K. MITCHELL, JR., Plaintiff,
v.
CAROLYN W. COLVIN, ACTING COMMISSIONER OF SOCIAL SECURITY, Defendant.

          DECISION AND ORDER

          HON. MICHAEL A. TELESCA, United States District Judge

         I. Introduction

         Represented 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.[1] 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.

         By 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.

         II. Procedural History

         The record reveals that in June 2009, plaintiff (d/o/b December 8, 1975) applied for SSI, alleging disability as of February 2006.[2] 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.

         III. Report and Recommendation

         Plaintiff's 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 granted.

         IV. Discussion

         When 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.

         Plaintiff 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.

         A. Failure to Properly Weigh Medical Opinions and Failure to Clarify Opinions of the Treating Physician

         Plaintiff's 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”).

         Plaintiff 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[3] 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 ...


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