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Dimaggio v. Colvin

United States District Court, D. Vermont

July 14, 2015

STEVEN DIMAGGIO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security Administration, Defendant.

OPINION AND ORDER ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION (Docs. 15, 17, 18 & 22)

CHRISTINA REISS, Chief District Judge.

This matter came before the court for a de novo review of the Magistrate Judge's December 31, 2014 Report and Recommendation ("R & R") (Doc. 18). The R & R recommends affirming the decision of Defendant Carolyn W. Colvin, Acting Commissioner of the Social Security Administration (the "Commissioner") and denying a motion to remand filed by Plaintiff Steven Dimaggio (Docs. 15 & 17).

Plaintiff seeks a remand or reversal, pursuant to sentences four and six of 42 U.S.C. § 405(g), based on a decision by Administrative Law Judge ("ALJ") Dory Sutker finding him not disabled. Plaintiff contends that the Commissioner should consider new evidence on remand and that the Commissioner's decision that he is capable of performing light work is not supported by substantial evidence. The Commissioner opposes remand or reversal, arguing that the new evidence would not have altered the decision to deny Plaintiff benefits. In addition, the Commissioner argues that Plaintiffs request for reversal of the ALJ's decision should not be considered as the grounds for reversal was not raised before the Magistrate Judge. If Plaintiffs new arguments are considered, the Commissioner asserts that the ALJ's decision is supported by substantial evidence.

Plaintiff is represented by Paula J. Kane, Esq. The Commissioner is represented by Special Assistant United States Attorney Luis Pere. The court took this matter under advisement on May 17, 2015.

I. Procedural History.

Plaintiff originally applied for Social Security Disability Insurance Benefits ("SSDI") and Supplemental Social Security Income ("SSI") in November 2007. On February 1, 2010, ALJ Sutker held a hearing on Plaintiff's applications and determined that Plaintiff was not disabled. After Plaintiff appealed this decision on October 6, 2011, this court (Reiss, C.J., presiding) remanded to the Commissioner for consideration of Plaintiff's hypersomnolence and the combined effects of hypersomnolence with Plaintiff's other limitations.

On June 5, 2012, ALJ Sutker conducted a second hearing, at which Plaintiff was represented by counsel and testified. Plaintiff's wife also testified, as did a vocational expert. On June 15, 2012, the ALJ issued a second decision in which she concluded that Plaintiff was not disabled.

On November 8, 2013, Plaintiff filed a Complaint in this case, alleging that the ALJ "failed to consider the severity of the plaintiff's pain and the soporific effects of his prescribed narcotic medication[.]" (Doc. 4 at 4, ¶ 14.) He further asserts that the ALJ erroneously concluded that he is capable of performing light work. In the pending motion, however, Plaintiff sought only a remand under sentence six of 42 U.S.C. § 405(g) for consideration of new evidence. Plaintiff seeks to present the reports of Charles Gluck, M.D., Theodore G. Williams, Ph.D., and Roy Shapiro, Ph.D. as additional evidence. Plaintiff also indicates that he "was found disabled at the Disability Determination Services level in a subsequent application filed after the last Appeals Council decision dated September 9, 2013 became final in the present action." (Doc. 15 at 1.)[1]

On December 31, 2014, the Magistrate Judge issued a R & R, which reviewed the reports of Dr. Williams, Dr. Gluck, and Dr. Shapiro and concluded that they would not have altered the ALJ's decision. Objections to the R & R were due by January 20, 2015. No objections were filed by that deadline. On January 28, 2015, the court adopted the R & Rand issued a judgment in favor of the Commissioner. On February 25, 2015, Plaintiff filed objections to the R & R and a motion to set aside judgment. The Commissioner opposed the motion and Plaintiffs objections, arguing that Plaintiffs objections were not timely and raised new arguments not raised before the Magistrate Judge.

On April 7, 2015, the court granted Plaintiff relief under Fed.R.Civ.P. 60(b). On April 27, 2015, the court issued an Entry Order requesting additional briefing regarding whether the court should consider arguments that Plaintiff failed to raise before the Magistrate Judge. Both parties responded with supplemental briefing.

II. Whether the Court Should Consider Plaintiff's New Arguments.

In his objections to the R & R, Plaintiff raises arguments that challenge the ALJ's decision on grounds arguably not raised and clearly not addressed by the Magistrate Judge: (1) whether the ALJ followed the treating physician rule; (2) whether the ALJ's conclusion that Plaintiff could perform light work is supported by substantial evidence, and (3) whether the ALJ properly relied on the vocational expert's testimony. "[T]he Second Circuit has not decided whether a district court must consider a legal argument raised for the first time in an objection to a magistrate judge's report and recommendation." Wells Fargo Bank N.A. v. Sinnott, 2010 WL 297830, at *1 (D. Vt. Jan. 19, 2010). This court has determined that it may exercise its discretion and consider new legal arguments based upon the following factors:

(1) the reason for the litigant's previous failure to raise the new legal argument; (2) whether an intervening case or statute has changed the state of the law; (3) whether the new issue is a pure issue of law for which no additional fact-finding is required; (4) whether the resolution of the new legal issue is not open to serious question; (5) whether efficiency and fairness militate in favor or against consideration of the new argument; and (6) whether manifest injustice will result if the new argument is not considered.

Id. at *4; see also Amadasu v. Ngati, 2012 WL 3930386, at *6 (E.D.N.Y. Sept. 9, 2012) (applying the same standard).

Although the Commissioner characterizes Plaintiff's failure to raise the new arguments before the Magistrate Judge as a "purely tactical' decision, " (Doc. 30 at 2), Plaintiff argues that paragraph fourteen of his Complaint[2] was sufficient to provide notice that Plaintiff sought to challenge the merits of ALJ Sutker's decision and not just whether new evidence should be presented. He contends that his motion for a sentence six remand "did not mean that [he] had abandoned his claim that he was disabled anyway, based on the evidence already in the record." (Doc. 31 at 2.) Additionally, "Plaintiff['s] attorney had expected an initial separate ruling on the motion for remand." Id. Accordingly, Plaintiff cites some evidence that he intended to present his new arguments to the Magistrate Judge, but failed to do so based upon a misunderstanding of how the Magistrate Judge would proceed. This Sinnott factor weighs in favor of consideration of Plaintiffs new arguments.

An intervening statute or case has not altered the state of the law, and Plaintiffs arguments do not raise novel issues of law or a new legal issue that is not open to serious question. Plaintiffs new arguments also do not require additional fact findings. Instead, consideration of Plaintiffs new arguments requires analysis only of the administrative record, which the court must review in any event to determine whether a remand is warranted. Efficiency and fairness thus weigh in favor of reviewing Plaintiffs new arguments.

Conversely, a refusal to consider the merits of Plaintiffs new arguments would deprive him of the opportunity to fully challenge the ALJ's decision. The Commissioner has already responded to Plaintiffs new arguments and thus will suffer no prejudice if this court considers Plaintiffs new arguments. This factor also weighs in favor of consideration of Plaintiffs new arguments.

Finally, the court must evaluate if manifest injustice will result from a failure to consider Plaintiffs new arguments. Courts in the Second Circuit "have a strong preference for resolving disputes on the merits[.]" City of New York v. Mickalis Pawn Shop, LLC, 645 F.3d 114, 129 (2d Cir. 2011) (internal quotation marks omitted). Although it is not clear that it would be "manifestly unjust" to preclude Plaintiff from raising his new arguments, in light of the minimal prejudice to the Commissioner, and absence of undue delay, "efficiency and fairness militate in favor [of]... consideration of the new argument[s.]" Sinnott, 2010 WL 297830, at *4. The court therefore exercises its discretion to consider them.

III. Factual Background.

Plaintiff is a right-handed, fifty-three year-old male who alleges that he became disabled as of June 1, 2006. He suffers from hallux rigidus, lateral epicondylitis in his left elbow, carpal tunnel syndrome, and obesity. Plaintiff also alleges that he has difficulty with reading, concentration and memory, depression, and hypersomnolence, the latter of which is a side-effect of his opiate pain medication. He graduated from high school and served in the Army National Guard. He has worked as a carpenter, a construction worker, and a mechanic's assistant.

A. Plaintiff's Medical Conditions.

1. Arthritic Feet.

On November 7, 2006, Plaintiff consulted David Senese, P.A. with complaints of foot pain and fatigue. Plaintiff had been laying tile, kneeling, and wearing steel toed boots. He stated that he did not feel pain when he removed his boots and put on sneakers. Mr. Senese advised Plaintiff to wear shoe inserts and cushioned socks, and to soak his feet after taking off his boots. He recommended that Plaintiff take Ibuprofen. On January 5, 2007, March 16, 2007, and April 5, 2007, Plaintiff again visited Mr. Senese with similar complaints of foot pain. On March 30, 2007, Plaintiff saw Stewart Manchester, M.D., who examined Plaintiffs feet and diagnosed him with "mid tarsal joint arthritis." (AR 239.)

In March 2007, Plaintiff visited a podiatrist, David Groening, D.P.M., for an evaluation of Plaintiffs pain in both feet. Dr. Groening's evaluation revealed bone spurring and degenerative changes, which led to a diagnosis of hallux rigidus. [3] On May 2, 2007, Plaintiff saw Dr. Groening a second time, again complaining of foot pain and stated that "he is unable to stand on his feet for any length of time." (AR 316.) On May 15, 2007, Dr. Groening performed surgery to remove some of the bone spurs on Plaintiffs feet. On May 18, 2007, Plaintiff reported "that he has been doing well" and "only gets some occasional pains in his foot." (AR 339.)

In November 2007, Plaintiff returned to Dr. Groening with complaints of foot pain, described as follows: "[H]e continues to have pain although it is better than it was before the [surgery]." (AR 340.) Dr. Groening diagnosed Plaintiff with arthritis and advised him that he would likely have chronic foot pain. Dr. Groening recommended that Plaintiff take anti-inflammatory pain medication and discussed the possibility of joint fusion surgery, but Plaintiff did not wish to pursue that option.

In December 2007 and January 2008, Plaintiff sought treatment for his foot pain from William Roberts, M.D., of the Northwestern Medical Center Pain Clinic. On December 20, 2007, Plaintiff described "[h]is current pain score [as] 5/5 if he walks any distance[.]" (AR 297.) Dr. Williams proposed giving Plaintiff a prescription for Hydrocodone to manage his pain. Dr. Williams discussed job retraining with Plaintiff and observed that Plaintiff desired to return to work as a carpenter, but understood that was unlikely. On December 26, 2007, Dr. Roberts noted that Plaintiff "ambulates without a limp and has no difficulty coming from the waiting room into the exam room." (AR 285.) Nevertheless, Dr. Roberts prescribed Plaintiff Hydrocodone to be taken four times per day and Amitriptyline to be taken once per day.

After an initial trial period of Hydrocodone in December 2007, Dr. Roberts renewed Plaintiffs prescription until December 2008, at which point he stopped prescribing Hydrocodone to increase its efficacy in the future. In February 2009, Dr. Roberts again prescribed Hydrocodone to Plaintiff. At a February 23, 2009 appointment, Plaintiff reported "very little satisfaction" with Hydrocodone and evaluated "his pain at 8.5/10 to 9/10." (AR 496.) Dr. Roberts noted that Plaintiff "continues to be studying welding and doing quite well with that." (AR 497.)

On March 19, 2009, Dr. Groening performed a second surgery on Plaintiffs feet to remove bone spurs. On March 23, 2009, Plaintiff represented to Dr. Groening that "he has not had undue pain." (AR 519.) On April 8, 2009 and again on April 27, 2009, Plaintiff reported that "he has been doing better" and "that he is doing better than before his surgery." (AR 520.) On May 20, 2009, Plaintiff confirmed that "[h]e is not having pain like what he was having before" but "he is applying for disability because he always does have some pain in his feet." (AR 521.) On October 29, 2009, Dr. Groening observed "marked degenerative changes of the [metatarsophalangeal] joint with almost complete obliteration of the joint space[.]" (AR 527.)

On February 1, 2010, during an administrative hearing before ALJ Sutker, Plaintiff testified that he was "in constant pain in [his] feet" and experienced "pain spikes" when he was on his feet. (AR 37.) Plaintiff further testified he was unable to do chores around the house and had limited ability to drive motor vehicles. Plaintiffs wife testified he could occasionally load laundry into the washing machine.

On June 5, 2012, after the initial remand, ALJ Sutker held a second administrative hearing. At that hearing, Plaintiff testified that the condition of his feet had gotten worse since the first hearing and that he did not "do anything around the house anymore, and [his] feet are really bothering [him] real bad. Just getting up, walking to the bathroom can be a chore." (AR 622.) Plaintiff further testified that he is no longer able to make himself a simple meal and attempts "to stay off [of his feet]" and to "elevat[e] them[.]" (AR 623.)

2. Lateral Epicondylitis and Carpal Tunnel.

In the spring of 2007, Plaintiff observed a dull ache around his left thumb. On November 15, 2007, Plaintiff visited Dr. Manchester to report numbness in his left hand. Dr. Manchester diagnosed Plaintiff with ulnar neuropathy in his left hand and recommended changes in his diet and exercise. On January 4, 2008, Plaintiff began a course of physical therapy for his left ...


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