United States District Court, N.D. New York
MEGGESTO, CROSSETT & VALERINO, LLP Counsel for Plaintiff
SOCIAL SECURITY ADMIN. OFFICE OF REG'L GEN.
COUNSEL-REGION II, Counsel for Defendant
KIMBERLY A. SLIMBAUGH, ESQ., ARIELLA R. ZOLTAN, ESQ.
DECISION AND ORDER
T. SUDDABY, Chief United States District Judge
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.
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.)
DEFENDANT'S RESPONSE TO PLAINTIFF'S
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.)
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).
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).