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Campbell v. Commissioner of Social Security

United States District Court, N.D. New York

May 26, 2017

JOANNE CAROL CAMPBELL, Plaintiff,
v.
COMMISSIONER OF SOCIAL SECURITY, Defendant.

         APPEARANCES:

          MEGGESTO, CROSSETT & VALERINO, LLP Counsel for Plaintiff

          U.S. SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN. COUNSEL-REGION II, Counsel for Defendant

         OF COUNSEL:

          KIMBERLY A. SLIMBAUGH, ESQ., ARIELLA R. ZOLTAN, ESQ.

          DECISION AND ORDER

          GLENN T. SUDDABY, Chief United States District Judge

         Currently before the Court, in this Social Security action filed by Joanne Carol Campbell (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. § 405(g), 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 to the Report and Recommendation. (Dkt. Nos. 13, 14, 15.) For the reasons set forth below, the Report and Recommendation is accepted and adopted in its entirety.

         I. PLAINTIFF'S OBJECTIONS

         Generally, Plaintiff makes two objections to Magistrate Judge Carter's Report and Recommendation. (Dkt. No. 14, at 1-3.) First, Plaintiff argues that the Court should reject Magistrate Judge Carter's finding that any error the ALJ might have made in concluding that Plaintiff's migraines were not severe was harmless because the ALJ proceeded to the other steps of the sequential evaluation and discussed Plaintiff's migraines when assessing the RFC. (Dkt. No. 13, at 7-9; Dkt. No. 14, at 1-2.) Specifically, Plaintiff argues that the ALJ erred in failing to include a limitation in the RFC corresponding with the migraine impairment. (Id.) Second, Plaintiff argues that the Court should reject Magistrate Judge Carter's finding that the Step Five determination was supported by substantial evidence. (Dkt. No. 13, at 22-24.) Specifically, Plaintiff argues that it was error for the ALJ to rely on vocational expert testimony obtained at the 2012 hearing rather than obtain new vocational expert testimony at the 2015 hearing because, in Plaintiff's estimation, “the ALJ found an RFC [in 2015] that differed from the RFC presented to the vocational expert at the 2012 hearing.” (Dkt. No. 14, at 2-3.)

         II. DEFENDANT'S RESPONSE TO PLAINTIFF'S OBJECTIONS

         Generally, Defendant makes three arguments in response to Plaintiff's objections. (Dkt. No. 15, at 2-5.) First, Defendant argues that Magistrate Judge Carter's finding that any error in determining the severity of Plaintiff's migraines was harmless should be adopted. (Dkt. No. 15, at 2-3.) Second, Defendant argues that Magistrate Judge Carter properly found that the ALJ's Step Five finding was supported by substantial evidence because the ALJ's hypothetical question to the vocational expert at the 2012 hearing essentially mirrored the RFC assessment in the 2015 decision. (Dkt. No. 15, at 3-4.) Third, Defendant argues that the remainder of Magistrate Judge Carter's Report and Recommendation (to which Plaintiff did not object) should be adopted in its entirety. (Dkt. No. 15, at 4-5.)

         III. APPLICABLE LEGAL STANDARD

         A 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). Additionally, a district court will ordinarily refuse to consider an argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717, at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F.Supp.2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted).

         IV. ...


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