Opinion
6:21-CV-881
01-17-2023
KEVIN R., Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
OFFICE OF PETER M. HOBAICA, LLC Attorneys for Plaintiff B. BROOKS BENSON, ESQ. SOCIAL SECURITY ADMINISTRATION Attorneys for Defendant AMY BLAND, ESQ. Special Ass't U.S. Attorney
OFFICE OF PETER M. HOBAICA, LLC
Attorneys for Plaintiff
B. BROOKS BENSON, ESQ.
SOCIAL SECURITY ADMINISTRATION
Attorneys for Defendant
AMY BLAND, ESQ.
Special Ass't U.S. Attorney
ORDER ON REPORT & RECOMMENDATION
DAVID N. HURD, UNITED STATES DISTRICT JUDGE
On August 4, 2021, plaintiff Kevin R. (“plaintiff') filed this action seeking review of the final decision of defendant Commissioner of Social Security (“Commissioner” or “defendant”) denying his application for Disability Insurance Benefits (“DIB”) under the Social Security Act (the “Act”).
In accordance with a May 1, 2018 memorandum issued by the Judicial Conference's Committee on Court Administration and Case Management and adopted as local practice in this District, only the first name and last initial of plaintiff will be mentioned in this opinion.
The Commissioner filed a certified copy of the Administrative Record, Dkt. No. 10, and both parties briefed the matter in accordance with General Order 18, which provides that an appeal taken from the Commissioner's decision denying benefits will be treated as if the parties have filed cross-motions for a judgment on the pleadings, Dkt. Nos. 13, 18.
On November 9, 2022, shortly after hearing oral argument on the parties' cross-motions, U.S. Magistrate Judge David E. Peebles advised in a thorough, thirty-seven-page Report & Recommendation (“R&R”) that (1) the Commissioner's motion should be granted, (2) plaintiffs motion be denied, (3) the Commissioner's final decision be affirmed, and (4) plaintiffs complaint be dismissed. Dkt. No. 21. Plaintiff has filed objections, Dkt. No. 24, which have now been fully briefed, Dkt. No. 25.
Upon de novo review, plaintiff's objections must be overruled. As the Commissioner explains in her opposition brief, plaintiff failed to show that the ALJ erred at step two by finding that his fibromyalgia was not a medically determinable impairment. Notably, Judge Peebles explicitly considered this issue as part of his R&R.
To the extent plaintiff argues that remand is necessary to further develop the record regarding a possible diagnosis of fibromyalgia, it bears noting that neither the Act nor the Regulations obligate an ALJ to re-contact medical providers. As the Commissioner notes, this particular issue was not squarely presented to Judge Peebles. But even assuming otherwise, plaintiff has not shown reversible error under the circumstances.
Plaintiffs other objections are focused less on the findings and determinations made in the R&R and more on the underlying arguments presented to the Magistrate Judge in the first instance. A review of these renewed and re-framed arguments confirms that there is no good reason to second-guess the R&R's conclusions on these points. Accordingly, the R&R is accepted and will be adopted in all respects. See 28 U.S.C. § 636(b)(1)(C).
Therefore, it is
ORDERED that
1. The Report & Recommendation is ACCEPTED;
2. The Commissioner's motion for a judgment on the pleadings is GRANTED;
3. Plaintiffs motion for a judgment on the pleadings is DENIED;
4. The Commissioner's final decision is AFFIRMED; and
5. Plaintiff's complaint is DISMISSED.
The Clerk of the Court is directed to enter a judgment accordingly and close the file.
IT IS SO ORDERED.