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Case 1:12-cv-00399-WMS Document 15 Filed 09/19/13 Page 1 of 5










In this action, Plaintiff Amy Rosier challenges an Administrative Law

Judge=s ([email protected]) determination that she was not disabled within the meaning of the Social

Security Act (Athe [email protected]) from March 1, 2004 through November 23, 2007.


In 2005, Rosier filed applications for Disability Insurance benefits (“DIB”)

and Supplemental Security Income benefits (“SSI”) under Titles II and XVI of the Act,

alleging an inability to work since March 1, 2004. The applications were denied and, at

Rosier’s request, a hearing was held before Administrative Law Judge (“ALJ”) John P.

Costello on October 15, 2007. The ALJ considered the case de novo, and on November

23, 2007, issued a decision denying the applications for benefits. After the Appeals

Counsel denied Rosier’s request for review, she filed an action in this Court challenging
the Commissioner’s final decision.1

The federal court action, commenced on September

8, 2009, was assigned Docket Number 08-CV-434S.


While Rosier’s federal action was pending, on July 3, 2008, she filed further

1 The ALJ=s October 15, 2007 decision had become the Commissioner=s final decision in that case

when the Appeals Council denied Plaintiff=s request for review.


Case 1:12-cv-00399-WMS Document 15 Filed 09/19/13 Page 2 of 5

applications for DIB and SSI, alleging a later disability onset date of March 1, 2005. The

applications were denied and, at Rosier’s request, a hearing was held before ALJ

Costello on August 5, 2009. By decision dated September 11, 2009, the ALJ found that

res judicata required the dismissal of Rosier’s claims to the extent they were based on the

time period covered by his prior decision—i.e., prior to November 23, 2007, but that she

was entitled to benefits based on a disability beginning November 24, 2007.


Just three days prior, on September 8, 2009, this Court had issued an order

remanding the Commissioner’s decision on Rosier’s first applications for benefits for

further proceedings, stating:

Plaintiff advances a number of challenges to the ALJ’s decision, one of
which is persuasive. Specifically, Plaintiff argues that the ALJ failed to
consider and discuss her good employment history as part of the credibility

(08-CV-434, Docket No. 17 ¶ 10.)


One year after this Court’s decision, on September 10, 2010, the Appeals

Council returned the matter to ALJ Costello. He held a further hearing on June 27, 2011,

at which Rosier appeared with her attorney and testified. The ALJ observed, at the outset

of the hearing, that “the only thing [the district court was] concerned with was that we

didn’t address in the decision the claimant’s credibility based on a prior work history.” (R.
) By decision dated August 19, 2011, the ALJ addressed the credibility issue and

again found that Rosier had not been under a disability from March 1, 2004 through

November 23, 2007. Rosier then filed a request for review with the Appeals Council,

which denied her request on February 27, 2012. She filed this current civil action on May

2, 2012, challenging the Commissioner=s final decision. In her Complaint, Rosier

2 Citations to the underlying administrative record are designated as [email protected]


Case 1:12-cv-00399-WMS Document 15 Filed 09/19/13 Page 3 of 5

acknowledges that her 2005 claims were remanded because “the ALJ had failed to

consider and discuss plaintiff’s good employment history as part of the credibility

determination” (Docket No. 1 ¶ 19), and alleges the Commissioner’s August 19, 2011

decision “is not supported by substantial evidence and/or is the result of an error of law”

(Id. ¶ 22).


The Commissioner and Rosier each filed a motion for judgment on the

pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. The motions

were fully briefed on April 26, 2013, at which time this Court took the matter under

advisement without oral argument.


Rosier now identifies “[t]he fundamental error in the present appeal [as] the

ALJ’s failure to give controlling weight to the treating source medical opinion of Dr. Perry

[dated] June 20, 2005.” (Docket No. 11-1 at 6.) In short, Rosier invokes the Atreating

physician=s rule,@ which requires that an ALJ give controlling weight to a treating

physician=s opinion when that opinion is Awell-supported by medically acceptable clinical

and laboratory diagnostic techniques and is not inconsistent with the other substantial
evidence in [the] [email protected] 20 C.F.R. ' 404.1527(c)(2) 3

; see also Green-Younger v.

Barnhart, 335 F.3d 99 (2d Cir. 2003); Shaw v. Chater, 221 F.3d 126, 134 (2d Cir. 2000).

The ALJ’s August 19, 2011 decision states as follows:

“I do not give controlling weight to the June 20, 2005 Medical Source
Statement of Ability to do Work-Related Activities (Mental), completed by
the claimant’s treating physician Maureen Perry, D. O. . . ., for the reasons
stated in my first decision.”

(R. 317.) Rosier had challenged ALJ Costello’s first decision on precisely this ground,

3 AThe >treating physician=s rule= is a series of regulations set forth by the Commissioner in 20

C.F.R. ' 404.1527 detailing the weight to be accorded a treating physician=s [email protected] de Roman v.
Barnhart, No. 03-Civ.0075(RCC)(AJP), 2003 WL 21511160, at *9 (S.D.N.Y. July 2, 2003).


Case 1:12-cv-00399-WMS Document 15 Filed 09/19/13 Page 4 of 5

claiming Dr. Perry’s June 2005 statement should have been given controlling weight. This

Court fully considered her claim, found it unpersuasive, and remanded solely on the

ground the ALJ’s credibility assessment was not sufficient. (08-CV-434, Docket No. 17 ¶



Res judicata, including claim preclusion and issue preclusion, is a waivable

defense. Fed. R. Civ. P. 8(c). Nevertheless, it may be raised sua sponte in appropriate

circumstances, and I find its application warranted here. First, on the face of Rosier’s

Complaint, which acknowledges the narrow basis for remand, the Commissioner could

not reasonably anticipate the need to assert a defense to an entirely different challenge

that already had been decided on the merits. Doe v. Pfrommer, 148 F.3d 73, 80 (2d Cir.

1998) (while res judicata and similar defenses ordinarily are not recognized when not

included in an answer, no absolute bar to consideration exists) (citations omitted); see

also, Walters v. Indus. & Commer. Bank of China, Ltd., 651 F.3d 280, 293 (2d Cir. 2010)

(though a waivable defense, courts are free to sua sponte raise res judicata). Moreover,

the Supreme Court repeatedly has affirmed that “‘if a court is on notice that it has

previously decided the issue presented, the court may dismiss the action sua sponte,

even though the defense has not been raised.’” Arizona v. California, 530 U.S. 392, 412,

120 S. Ct. 2304, 147 L. Ed. 2d 374 (2000) (quoting United States v. Sioux Nation, 448

U.S. 371, 432, 100 S. Ct. 2716, 65 L. Ed. 2d 844 (1980)).


Because res judicata applies to the only challenge Rosier asserts here, this

action is barred and must be dismissed. Even were the Complaint not barred, it would fail

on the merits, as the Court can discern no error in the ALJ’s credibility assessment and

ultimate findings.



Case 1:12-cv-00399-WMS Document 15 Filed 09/19/13 Page 5 of 5

IT HEREBY IS ORDERED, that Defendant=s Motion for Judgment on the

Pleadings (Docket No. 9) is GRANTED;

FURTHER, that Plaintiff=s Motion for Judgment on the Pleadings (Docket No. 11)


FURTHER, that the Clerk of the Court shall close this case.

/s/William M. Skretny


Chief Judge

United States District Court


Dated: September 19, 2013

Buffalo, New York