RONNIE ABRAMS, District Judge.
On July 3, 2014, Plaintiff Carl A. Hollaway filed this action under Section 205(g) and Section 1631 (c)(3) of the Social Security Act against the Commissioner of the Social Security Administration ("SSA"), seeking review of the final decision of the Administrative Law Judge ("ALJ") denying him disability insurance and supplemental security income benefits. See 42 U.S.C. §§ 405(g), 1383(c). Both parties filed motions for judgment on the pleadings pursuant to Federal Rule of Civil Procedure 12(c),
Although the Court finds one factual error in the Report, it did not alter the Report's conclusions, which this Court adopts in their entirety.
A district court "may accept, reject, or modify, in whole or m part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Parties may object to a magistrate judge's recommended findings "[w]ithin 14 days after being served with a copy of the recommended disposition." Fed. R. Civ. P. 72(b)(2). A district court must review de nova "those portions of the report or specified proposed findings or recommendations to which objection is made," 28 U.S.C. § 636(b)(1), and should reject, as untimely, arguments not raised before the Magistrate Judge, Abu-Nassar v. Elders Futures, Inc., No. 88 CIV. 7906 (PKL), 1994 WL 445638, at *5 (S.D.N.Y. Aug. 17, 1994) ("These arguments were not raised before Magistrate Judge Dolinger, and are not submitted as objections but as new arguments. Accordingly, plaintiffs' arguments and evidence are untimely."); see also Flores v. Keane, 211 F.Supp.2d 426, 444 (S.D.N.Y. 2001). "To the extent . . . that the party makes only conclusory or general arguments, or simply reiterates the original arguments, the Court will review the Report strictly for clear error." Sacks v. Gandhi Eng'g, Inc., 999 F.Supp.2d 629, 632 (S.D.N.Y. 2014) (internal quotation marks and citation omitted). Clear error review is especially appropriate where the objections are merely copied verbatim from the objecting party's earlier briefing. See Padilla v. LaBalley, No. 07-CV-5957 (DAB), 2012 WL 4473958, at *3 (S.D.N.Y. Sept. 28, 2012) ("Save the two aforementioned objections, all other objections merely rehash arguments fairly presented to the Magistrate and do not trigger de nova review."); Forsberg v. Always Consulting, Inc., No. 06-CV-13488 (CS), 2008 WL 5449003, at *4 (S.D.N.Y. Dec. 31, 2008) (reviewing for clear error where "Plaintiff's objections reiterate—verbatim in many instances—the arguments he set forth in his opposition").
Plaintiff's Objections were copied almost entirely from prior briefing, and as they "repeat [] verbatim the arguments that Plaintiff made in his original brief[,] arguments that Judge Pitman considered and rejected in his Report[,] . . . they are reviewed only for clear error." Faucette v. Commm'r of Soc. Sec., No. 13-CV-4851 (RJS), 2015 WL 5773565, at *3 (S.D.N.Y. Sept. 30, 2015), appeal dismissed (Jan. 13, 2016).
In addition to those portions of the Objections copied verbatim, Plaintiff raises three arguments. They are, however, untimely in that they are aimed not at the Report but at portions of the ALJ's decision not raised before the Magistrate Judge. See Flores, 211 F. Supp. 2d at 444 (finding an "objection is untimely" because "Petitioner did not raise this claim before the Magistrate"). Yet even if the Court were to address Plaintiff's three new arguments, they would fail as well. Plaintiff contends: (i) the ALJ committed error by relying on the opinion of consulting physician Dr. Hong S. Park; (ii) the ALJ should have contacted Plaintiff's "treating physician" to fill gaps in the record from the second objection; and (iii) the ALJ erred in finding the Plaintiff not credible based on a report of his initial interview by the SSA.
Plaintiff contends that the ALJ erred in relying on the opinion of Dr. Hong S. Park, a consulting physician who never physically examined the Plaintiff but evaluated his medical records. In particular, Plaintiff makes the following two arguments: (I) as part of his first objection regarding the treating physician rule, he argues that "the ALJ appears to give substantial weight (what amounts to controlling weight) to the non-examining medical consultant, Dr. Hong. S. Park"; and (2) in his sixth objection, he argues that the ALJ erred when he "relied on Dr. Park's opinion to reach his determination without providing `good reason' for doing so." Objections at 12, 20-21.
These objections, however, overstate the ALJ's reliance on Dr. Park's opinion. In his decision, the ALJ refers to Dr. Park only once, in order to both corroborate the opinion of Dr. Rubenfeld, the SSA's "independent physical examiner," and refute that of Dr. Blank, Plaintiffs "presumed treating physician." AR at 16, 20. In particular, the opinion states that "even though the examination [by Dr. Rubenfeld] did not uncover an objective basis to limit [Plaintiff's] stooping, kneeling, crouching, balancing, or climbing, I agree [with Dr. Rubenfeld]—like the agency's medical consultant [Dr. Park]—to limit him to occasional postural maneuvering too, out of an abundance of caution." Id. at 21. The consistent opinions of Dr. Park and Dr. Rubenfeld thus supported the ALJ's decision not to give controlling weight to the contrary opinion of Dr. Blank, and to accord "great weight" to the opinion of Dr. Rubenfeld. AR at 16, 21. Such a conclusion is permitted by the relevant regulations. See Negron ex rel. M. C.N. v. Comm'r of Soc. Sec., No. 11-CV-8685 (KBF), 2013 WL 2896845, at *6 (S.D.N.Y. June 12, 2013) ("The opinions of non-treating sources such as consulting physicians can . . . even override the opinions of treating physicians if they are supported by the record."). As the ALJ did not accord Dr. Park's opinion controlling weight, he was not obligated to provide good reasons for citing it. The ALJ's sole reference to Dr. Park does not require remand.
In his second objection, Plaintiff contends that the ALJ failed to contact Dr. Blank either to obtain a report of her interactions with Plaintiff or to secure her medical records related to his treatment. This objection also fails.
"It is the ALJ's duty to investigate the facts and develop the arguments both for and against granting benefits." Sims v. Apfel, 530 U.S. 103, 111 (2000). However, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a `complete medical history,' the ALT is under no obligation to seek additional information in advance of rejecting a benefits claim." Rosa v. Callahan, 168 F.3d 72, 79 n.5 (2d Cir. 1999) (quoting Perez v. Chafer, 77 F.3d 41, 48 (2d Cir. 1996)). On September 17, 2012, prior to Plaintiff's hearing, the ALJ's office called Plaintiff's counsel to "request[] the office treatment notes for Dr. Blank," which counsel indicated he would provide "possibly prior to the hearing." AR at 201. On September 24, 2012, during Plaintiff's administrative hearing, Plaintiff's attorney stated "we did get responses from the primary doctor, [Dr. Blank,] and they're coming in," to which the ALJ responded that Plaintiff's counsel could "call my office if you need more time; we'll give it to you," but warned "[i]f you don't call, we'll assume the records aren't coming . . . [a]nd I'll make a decision without them." AR at 31, 35-36. Following the hearing, the ALJ granted Plaintiff's request for an extension of time to supplement the record, but Plaintiff's counsel never contacted the ALJ or submitted additional evidence. AR at 203. Nevertheless, on October 2, 2016, the ALJ's office again called Plaintiff's counsel "to inquire if the medical [records] submitted w[ere] the extent of the evidence before closing the record." AR at 204. During this call, counsel "confirmed this evidence was it for the record." Id.
In Eusepi v. Colvin, 595 F. App'x 7 (2d Cir. 2014), the Second Circuit rejected a similar challenge. Id. at 9. In that case, the court concluded that the record was fully developed, despite the lack of "a treating physician's report," because the ALJ otherwise possessed a "complete medical history, and the administrative record was `adequate for [the ALJ] to make a determination as to disability.'" Id. (quoting Perez, 77 F.3d at 48). It reasoned that
Id. Here, the ALJ provided Plaintiffs counsel ample opportunity to supplement the record, providing additional time to submit supplementary records of Plaintiffs treating physician beyond those the ALJ already possessed. When they did not arrive, the ALJ properly accepted counsel's representation that the record was complete. Just as in Eusepi, the ALJ did not err in relying on counsel's representation and Plaintiffs objection is rejected.
Lastly, in his third objection, Plaintiff criticizes how the ALJ interpreted the disability field office report that summarizes Plaintiffs initial interaction with the SSA. See Objections at 16. The report states:
AR at 167.
Plaintiff is correct that his ability to sit through a meeting with the SSA without displaying signs of pain does not necessarily indicate an absence of pain and certainly is not dispositive of whether he experienced discomfort. But this is not what the ALJ found. The ALJ instead cited the interview as one of several pieces of evidence undermining Plaintiffs reports of pain and issues with prolonged sitting. See AR at 20-21. The ALJ also relied on other medical evidence, including Plaintiff's inconsistent statements to the SSA about his exertional abilities, his contradictory description of symptoms to various medical professionals at Beth Israel Medical Center, his reports—including at the hearing—about the effectiveness of his medication, his ability to maintain his weight (which indicated that he partook in daily activity), and his evaluation by Dr. Rubenfeld. Report at 53-56 (citing AR at 20-24). In addition, the ALJ cited non-medical evidence to doubt Plaintiff's credibility, including the timing of Plaintiff's request for disability following his release from prison and his claim to be unable to drive despite having supposedly had "his medication stolen from his back seat in June 2012." AR at 21, 24.
"Where an ALJ decides to discount a claimant's subjective allegations of pain, the reviewing court must defer to that credibility assessment, as long as the ALJ's findings are explained and supported by substantial evidence." McDonaugh v. Astrue, 672 F.Supp.2d 542, 565 (S.D.N.Y. 2009). Here, the Court concludes that the ALJ reasonably determined that Plaintiff's ability to sit through his SSA interview reflected a lack of discomfort. In any event, even without evidence from the SSA interview, the ALJ's ultimate determination on credibility is supported by the substantial record evidence discussed above. Any misinterpretation of Plaintiff's conduct at the SSA interview, therefore, would be harmless. See McIntyre v. Colvin, 758 F.3d 146, 148 (2d Cir. 2014) ("Although the ALJ erred . . . we apply harmless error analysis and conclude that the error was harmless. . . .").
Having rejected Plaintiff's new objections, this Court reviews the remainder of the Report for clear error. With the exception of one factual error regarding the ALJ's decision on "postural maneuvering" that does not alter the Report's conclusions, the Court identifies none. Report at 56 (quoting AR at 21).
Postural maneuvering describes an individual's ability to perform such functions as "reaching, handling, stooping, climbing, crawling, or crouching." 20 C.F.R. § 416.969a. In his opinion, the ALJ referenced three physicians who opined on Plaintiff's postural abilities: Dr. Rubenfeld, Dr. Park, and Dr. Blank. As part of their evaluations, each physician described Plaintiff's postural limitations by indicating whether Plaintiff could perform certain postural movements frequently, occasionally, rarely, or never. See AR at 57, 233, 239. They did not agree. Dr. Rubenfeld and Dr. Park stated that Plaintiff could "occasional[ly]" perform these postural tasks, AR at 57, 233, whereas Dr. Blank stated that Plaintiff could perform certain postural activities "rarely" and others "never," AR at 239. Plaintiff himself reported, moreover, that "all physical activity causes pain" including lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, and stair climbing. AR at 180.
After reviewing this evidence, the ALJ found that Plaintiff was limited to "occasional postural maneuvering" (hereinafter the "Postural Conclusion"). AR at 21. This Postural Conclusion comported with the opinions of Dr. Rubenfeld and Dr. Park, who found Plaintiff occasionally limited, but contradicted the opinion of Dr. Blank, who believed Plaintiff significantly more limited, and the subjective reporting of Plaintiff himself. See AR 57, 180, 233, 239. Although the Postural Conclusion and the evidentiary basis for this conclusion are clear, the language the ALJ used to announce his decision is less precise. His opinion states:
AR at 20.
The Report misstates the ALJ's basis for the Postural Conclusion. Specifically, the Report erroneously understood the ALJ to have relied on both Dr. Blank's opinion and Plaintiff's self-reporting as the basis for the Postural Conclusion. In fact, the opposite is true: the Postural Conclusion was inconsistent with evidence from Dr. Blank and Plaintiff.
Plaintiff argued before Judge Pitman that the ALJ impermissibly accorded no weight to the opinion of treating physician Dr. Blank. The Report denied that the ALJ assigned no weight to Dr. Blank's opinion, citing in support its erroneous interpretation of the ALJ's Postural Conclusion. See Report at 45-46. As described above, this was error. Nonetheless, Plaintiff's argument must be rejected because even though the ALJ did assign no weight to Dr. Blank's opinion, his decision to do so was permissible under the applicable regulations.
The treating physician rule usually requires "an ALJ to give `controlling weight' to the opinion of a treating physician." Foxman v. Barnhart, 157 F. App'x 344, 346 (2d Cir. 2005) (quoting 20 C.F.R. § 404.1527(d)(2)). "The opinion of the treating physician is not afforded controlling weight," however, where "the treating physician issued opinions that are not consistent with other substantial evidence in the record, such as the opinions of other medical experts." Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004). Indeed, the Second Circuit has indicated that, in certain circumstances, "[a]n ALJ is entitled to . . . disregard the opinion of a treating physician altogether—but only if the ALJ's decision is based upon proper consideration of the [20 C.F.R. § 404.1527(d)] factors." Foxman, 157 F. App'x at 346-47 (emphasis added); see also Flanigan v. Colvin, 21 F.Supp.3d 285, 305 (S.D.N.Y. 2014) ("The ALJ's determination to give no weight to Dr. Kovoor's ipse dixit after the fact opinion was not erroneous."); Hach v. Astrue, No. 07-CV-2517 (ENV), 2010 WL 1169926, at *11 (E.D.N.Y. Mar. 23, 2010) ("[I]t is not clear from the opinion that any weight was accorded, which, if true, would be improper without examining the [relevant] factors.").
Here, though the ALJ assigned no weight to Dr. Blank's opinion, his decision to do so was permissible because, as the Report determined and this Court agrees, the ALJ "did consider all of the factors required by the regulations." Report at 43-45. The regulations require an ALJ to consider:
Foxman, 157 F. App'x at 346-47 (citing 20 C.F.R. § 404.1527(d)(2)). The Report details that, with respect to the first two factors, the ALJ reviewed the record for indications of Dr. Blank's relationship with Plaintiff and found that, although there was virtually no evidence of her ever having actually examined him, the ALJ did "not discount[] her opinion on this basis." Report at 43 (citing AR at 21). The Report next notes that, for the third factor, the ALJ found "insufficient medical support for Dr. Blank's opinion because she did not support her opinions with objective findings other than the MRI," which, the ALJ concluded, was inconsistent with her findings. Report at 43-44 (citing AR at 20-21). As to the fourth factor, the ALJ "determined that Dr. Blank' s assessment regarding the extent of [P]laintiff's impairments was inconsistent with the balance of the medical record," including the examination of Dr. Rubenfeld and medical records from Beth Israel Medical Center. Report at 44-45 (citing AR at 20-21). Finally, with respect to the fifth factor, the ALJ noted that Dr. Blank was a "non specialist." Report at 45 (citing AR at 21). Having reviewed these factors, the ALJ was entitled to discount the treating physician's opinion in its entirety. See Foxman, 157 F. App'x at 346-47. The Report thus properly rejected Plaintiff's argument that the ALJ's decision to afford Dr. Blank's opinion no weight was error requiring remand.
Plaintiff also argued before Judge Pitman that the ALJ completely discounted his subjective reports of his own pain and limitations. Again, the Report erroneously counters this argument by misinterpreting the ALJ's Postural Conclusion. See Report at 56. This error was also harmless, however, as the ALJ did rely on Plaintiffs subjective reports of his symptoms contrary to Plaintiff's argument.
The ALJ, at least in part, credited Plaintiff's subjective symptoms in determining his "residual functional capacity," which is defined as "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. § 404.1545. The ALJ determined that Plaintiff's "medically determinable impairments could reasonably be expected to require his assignment to a limited range of light work," AR at 20, as opposed to a "full or wide range of light work," 20 C.F.R. § 416.967(b). A "full or wide range of light work" includes "the ability to do substantially all off the following] activities": lift ten pounds "frequently," lift twenty pounds occasionally, and do "a good deal of walking or standing, or when it involves sitting most of the time with some pushing and pulling of arm or leg controls." Id.
The ALJ must have relied on Plaintiff's subjective reporting in determining his residual functioning capacity as such a determination was inconsistent with all three physicians referenced in the ALJ's decision. Had the ALJ adopted Dr. Rubenfeld or Dr. Park's opinions in full, he would have found Plaintiff capable of performing a "full or wide range of light work" because the regulatory requirements for such a finding perfectly track the findings of these physicians. See AR at 56-57; 232-33.
Even if, moreover, the ALJ completely discounted Plaintiff's subjective reports of pain, he would not have erred so long as substantial evidence supported his decision. See Garcia v. Astrue, No. 07-CV-6658 (DAB), 2009 WL 212405, at *7 (S.D.N.Y. Jan. 29, 2009) ("The ALJ had significant discretion to discount the credibility of Plaintiff's complaints in light of medical findings and other objective evidence."). As described above, the ALJ's decision recounted more than substantial evidence to support the determination that Plaintiff lacked credibility. Report at 53-56 (summarizing the evidence underlying the ALJ's credibility conclusion) (citing AR at 20-24). The Report thus did not err in refusing to remand on this basis.
Finally, Plaintiff argued before Judge Pitman that the ALJ's hypothetical questions to a vocational expert required remand because they ignored both Plaintiffs testimony and Dr. Blank's opinion. The Report erroneously rejected this argument by virtue of its misinterpretation of the ALJ's Postural Conclusion. See Report at 59-60. The Report nonetheless was correct in rejecting the argument because the ALJ's questions: (i) did rely on Plaintiffs self-reporting; (ii) did not need to rely on Dr. Blank's opinion; and (iii) in any event, were supported by substantial evidence, which is all that the relevant regulations require. First, the ALJ's questions reflected Plaintiffs self-reporting. As already discussed, the ALJ's determination of Plaintiffs residual functioning capacity for only a "limited range of light work" reflected Plaintiffs testimony—at least in part. AR at 20. This finding formed the basis for asking the vocational expert about not only light work but also sedentary work that would "allow an individual to switch back and forth between a siting and standing position, if necessary, every hour." AR 25 & n.4, 48-49. Second, with respect to Dr. Blank's opinion, the ALJ permissibly assigned it no weight as discussed above and thus, it could not have been error to ignore her opinion in forming the hypotheticals. Finally, irrespective of whether the hypotheticals reflected Plaintiffs self-reporting or Dr. Blank's opinion, "[a]n ALJ may rely on a vocational expert's testimony regarding a hypothetical as long as the facts of the hypothetical are based on substantial evidence and accurately reflect the limitations and capabilities of the claimant involved." Calabrese v. Astrue, 358 F. App'x 274, 276 (2d Cir. 2009). Here, as the hypotheticals were supported by the opinions of Dr. Rubenfeld, Dr. Park, the medical records from Beth Israel Medical Center, and, to an extent, Plaintiff's own testimony, the Report did not err in concluding that remand is unnecessary.
As the Court rejects Plaintiff's new objections after a de nova review and finds that any clear error in the Report is ultimately harmless, the Report's conclusions are adopted in full. The Commissioner's motion is thus granted and Plaintiff's motion is denied. The Clerk of Court is respectfully directed to close the case.
SO ORDERED.
AR at 20.
