Opinion
99-CV-0068E (F)
March 23, 2001
Dennis A. Clary, Esq., Buffalo, NY, Attorneys for the Plaintiff.
Jane B. Wolfe, Esq., United States Attorney, Buffalo, NY, Attorneys for the Defendent.
MEMORANDUM and ORDER
Pursuant to 28 U.S.C. § 636 (b)(1)(B), this case was referred to Magistrate Judge Leslie G. Foschio for all proceedings necessary to a determination of the merits of plaintiff's disability claim. By Report and Recommendation filed September 20, 2000 ("R R"), Judge Foschio recommended that the Commissioner's motion for judgment on the pleadings be granted. Presently before the undersigned are plaintiff's objections thereto. After a de novo review of those portions of the R R to which objections have been made, such objections will be overruled, the R R will be adopted in its entirety and this case will be closed.
Familiarity with the R R is presumed. Plaintiff's principal objection is that Judge Foschio erred in allowing the Administrative Law Judge ("ALJ") to have substituted her opinion as to the severity of plaintiff's disabling mental condition, as is evidenced by the ALJ's failure to credit Dr. Fajardo's 1995 findings in making her determination. These 1995 findings indicate, inter alia, that plaintiff "exhibited marked difficulties in virtually every area of social functioning" and that plaintiff's mental deficiencies negatively affected plaintiff's "ability to function in an appropriate, independent, and/or effective manner. Objections at 1-2. Taken together, Dr. Fajardo's reports are purported to overwhelmingly support a finding that [plaintiff] was disabled." Id. at 2. The undersigned disagrees.
Plaintiff also argues that the Magistrate Judge erred in failing to find that plaintiff's "condition could not be evaluated under the Listing for anxiety disorders" and erred in substantiating the ALJ's "refusal to credit [plaintiff's] testimony with regard to hZ5 back." Such arguments, for the reasons set forth in the R R, are without merit. See R R at 25-28 (noting, inter alia, that there is no proof that plaintiff's mental condition "markedly restricts his activities of daily living or caused repeated episodes of deterioration or decompensation in work or work-like settings"); R R at 33 (noting that the medical evidence in the record does not support plaintiff's subjective complaints regarding his somatic condition).
In addition to noting that "there are more people who are more disabled than [plaintiff] and [that] they are able to function in a supervised work setting or workshop, "Dr. Fajardo's 1995 findings state that plaintiff was "preoccupied with [his] own agenda of disability" and that he had been "primarily focused on obtaining [disability] benefits." R. 313, 316. In fact, Dr. Fajardo twice advised plaintiff of the type of employment which was within plaintiff's work abilities. R. 299 (noting in October 1995 that plaintiff could be employed in a supervised and non[-]physical type of job which could include workshops, doing table or assembly type work"); R. 336 (inquiring in October 1996 as to whether plaintiff might find "less physical or strenuous work"). Towards the end of 1996, Dr. Fajardo even opined that plaintiff was capable of following work rules, relating to co-workers, dealing with the public, using fair judgment, interacting with supervisors, dealing with work stresses, functioning independently and maintaining attention/concentration at a job. R. 289. Such findings were considered by the vocational expert who testified at plaintiff's administrative hearing with respect to jobs in the national economy in which plaintiff could be expected to perform. See R. 80 (ALJ instructing vocational expert to consider a medical assessment by Dr. Fajardo from October 1995 and various progress notes from 1995 and 1996). In short, Dr. Fajardo's findings were considered by the ALJ and do not overwhelmingly support a finding that plaintiff was disabled.
Accordingly, it is hereby ORDERED that plaintiff's objections are overruled, the R R is adopted in its entirety and that this case shall be closed.