Opinion
21-CV-8485 (VEC) (BCM)
08-18-2023
JOVAN DAVIS, Plaintiff, v. KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant.
REPORT AND RECOMMENDATION TO THE HONORABLE VALERIE E. CAPRONI
BARBARA MOSES, United States Magistrate Judge.
Plaintiff Jovan Davis filed this action pursuant to § 205(g) of the Social Security Act (the Act), 42 U.S.C. § 405(g), seeking judicial review of a final determination of the Commissioner of Social Security (Commissioner) denying his applications for Disability Insurance Benefits (DIB) and Supplemental Security Income (SSI). Now before me for report and recommendation are the parties' cross-motions for judgment on the pleadings. (Dkts. 20, 23.) For the reasons that follow, I recommend that plaintiff's motion be denied, the Commissioner's motion be granted, and the case be dismissed.
I. BACKGROUND
Plaintiff was born on December 3, 1980. See Certified Administrative Record (Dkt. 17) (hereinafter "R. __") at 49, 221, 231. He got his GED and did "a little bit of college." (R. 49.) He was involved in a car accident on November 13, 2018, while working as an Uber Eats driver, injuring his neck, back, and left knee. (R. 787.) Before that, plaintiff worked as an office clerk at a law firm and as a messenger. (R. 51-53.) He has not worked since the accident, except that, since December 2019, he has worked "about 45 minutes" a day delivering salads, for which he earns $25. (R. 50-51.)
Plaintiff applied for SSI and DIB on December 12, 2019 (R. 221, 231), at the age of 39, alleging disability since November 13, 2018. (R. 297.) The Social Security Administration (SSA) denied plaintiff's claims initially on March 27, 2020 (R. 129), and again, on reconsideration, on July 20, 2020. (R. 143.) On December 9, 2020, plaintiff and his counsel appeared by telephone before Administrative Law Judge (ALJ) Raymond Prybylski (R. 42), who took testimony from plaintiff (R. 48-59) and from Vocational Expert (VE) Diane Durr. (R. 60-62.) On January 25, 2021, the ALJ issued a written decision (Decision) (R. 13-21), concluding that plaintiff was not disabled within the meaning of the Act. On August 16, 2021, the Appeals Council denied review (R. 1-3), rendering the ALJ's determination final.
This action followed.
II. SUMMARY OF RELEVANT MEDICAL EVIDENCE
A. Treating Providers
During the relevant period, plaintiff received treatment from Gabriel L. Dassa, D.O. (an orthopedic surgeon) and Joshua Auerbach, M.D. (a spinal surgeon); received physical therapy at Vista Medical Rehab P.C. (Vista); and was seen occasionally by internists at Mt. Sinai Hospital.
1. Dr. Dassa
Plaintiff first saw Dr. Dassa on December 7, 2018, on referral from a Dr. Zeren (whom Dr. Dassa identified as a chiropractor). (R. 787.) At the time, plaintiff was taking Naprosyn (naproxen), a nonsteroidal anti-inflammatory drug (NSAID), and Flexeril, a muscle relaxant. (Id.) On examination, Dr. Dassa found tenderness on palpitation over the cervical and thoracic spine, with myospasm to the upper border of the trapezius muscle, as well as the rhomboid and paraspinal muscles, reduced range of motion (ROM), a positive Spurling test to the right, and a positive straight leg raising (SLR) test to the left. (R. 788-89.) Sensation and motor strength were intact. (R. 788.) Dr. Dassa found also found tenderness on palpation over the medial joint, the lateral joint, and the anterior aspect of the left knee, "associated with the swelling as compared to the contralateral side." (Id.) He recommended physical therapy, chiropractic care, pain medication, a back brace, and a knee brace. (R. 789.)
A Spurling test is used to test for neck pain, specifically cervical radiculopathy. Stephen P. Cohen, Epidemiology, Diagnosis, and Treatment of Neck Pain, Mayo Clinic Symposium on Pain Medicine, https://doi.org/10.1016/j.mayocp.2014.09.008 (all websites last visited Aug. 18, 2023). "The straight leg raise test is used to evaluate for lumbar nerve root impingement or irritation." Medscape, Examination of Low Back Pain Technique, https://emedicine.medscape.com/ article/2092651-technique#c6.
Dr. Dassa prescribed Mobic (another NSAID) and cyclobenzaprine (the generic form of Flexeril). (R. 789.)
On January 4, 2019, Dr. Dassa saw plaintiff again, noting that he was limping, his left knee was swollen, and he reported "significant pain and functional impairments to the left knee." (R. 793.) An MRI (see Part II.B., infra) showed a torn meniscus. (Id.) Dr. Dassa recommended continuance of physical therapy and potentially knee surgery. (Id.) On February 8, 2019, Dr. Dassa once again noted that plaintiff's left knee was swollen, with limited ROM, and his gait was antalgic, and again recommended surgery for the knee. (R. 795.) He did not make any findings as to plaintiff's neck or back problems. (R. 796.)
On February 20, 2019, plaintiff underwent an arthroscopic partial meniscectomy (removal of the meniscus), tricompartmental synovectomy (removing inflamed or irritated synovium tissue), and lysis of adhesions (removal of scar tissue which causes pain). (R. 800-02.) On April 12, 2019, plaintiff saw Dr. Dassa for a follow-up examination, which revealed that the surgical portal was well-healed, although plaintiff still had reduced ROM in the left knee and mild tenderness on palpitation. (R. 811.) Dr. Dassa recommended continued physical therapy and exercise at home. (Id.) At a follow-up visit on May 24, 2019, plaintiff reported moderate improvement to his left knee, stating that he "only experienced some pain and discomfort with certain daily activity." (R. 813.)
2. Dr. Auerbach
On May 9, 2019, plaintiff saw Dr. Auerbach about his back. (R. 547.) Plaintiff informed Dr. Auerbach that he had undergone physical therapy and chiropractic treatment, had taken medications, and had two epidural injections, but that his pain had only been transiently relieved, and he experienced persistent back pain and radiating leg pain despite this treatment. (Id.) An MRI (see Part II.B., infra) showed an "L5-S1 herniated disk" and a "smaller bulge at ¶ 4-5." (R. 457.) Dr. Auerbach's exam revealed that plaintiff had limited flexion (75/90) and extension (20/30) of the spine, as well as limited lateral bending to the left (15/30) and to the right (20/30). (Id.) Paraspinal lumbar tenderness and spasming was noted to the left but not the right. (Id.) Plaintiff had a positive SLR test on the left side, "with sitting root test eliciting pain in the back and down the leg." (Id.) Plaintiff presented no motor or sensory deficits. (Id.) Dr. Auerbach recommended a decompression surgery at ¶ 5-S1. (Id.)
The administrative record does not include any medical records reflecting plaintiff's epidurals or chiropractic treatment.
The back surgery was performed on June 20, 2019 (R. 587), and involved a medial partial facetectomy and a ligamentum flavectomy procedure to decompress plaintiff's spine, after which Dr. Auerbach determined that "the nerves had adequate room to traverse and exit." (R. 588.) Plaintiff tolerated the procedure well and was discharged the next day. (R. 629-30.) At his followup visit with Dr. Auerbach on July 1, 2019, plaintiff reported that he had "[n]o further pain down the legs." (R. 738.) His SLR test was negative, and he had full motor strength and no sensory deficits. (Id.) Two weeks later, plaintiff saw Dr. Auerbach again, and again reported no pain down the legs, though he still had back pain. (R. 741.) On examination, his SLR remained negative, but he exhibited somewhat reduced truncal flexion (75/90) and extension (20/30). (Id.) Dr. Auerbach recommended physical therapy. (Id.)
On August 13, 2019, Dr. Auerbach again found limited ROM in plaintiff's lumbar spine, with pain at the extremes of motion, and assessed plaintiff with "resolved lumbar radicular pain syndrome with persistent axial back pain," for which he recommended "additional physical therapy." (R. 746.) Two months later, on October 15, 2019, plaintiff reported "persistent back pain and stiffness that bothers him sleeping, sitting, standing for long periods of time, and walking." (R. 751.) Dr. Auerbach wrote that plaintiff "needs more therapy," but that "[t]here is certainly permanency to his condition," including "persistent back pain" and "restrictions in motion." (Id.) Plaintiff reported the same symptoms during a telehealth visit with Dr. Auerbach on April 7, 2020, adding that he also experienced spasming, though he confirmed that his leg pain was still resolved. (R. 756.) Because of the COVID-19 pandemic, Dr. Auerbach recommended that plaintiff do exercises at home. (Id.)
3. Physical Therapy
Plaintiff's physical therapy at Vista began in March 2019 and continued through February 2020. Vista's treatment notes for the period December 2018 through March 2019 show that plaintiff exhibited a reduced ROM in the neck and a normal ROM in the back, but consistently complained of "[l]ow back pain aggravated with flexion." (R. 472-95.) During the period March 2019 through July 2019, plaintiff reported left knee pain. (R. 438-72.) From August 2019 through January 28, 2020, plaintiff reported pain in the lower back. (R. 401-37.) Throughout the period that plaintiff received treatment at Vista, he had positive Spurling tests. (See R. 398-513.)
B. Imaging
A December 10, 2018 MRI of plaintiff's left knee revealed bone marrow edema indicating a contusion; thickening and sprain of the medial collateral ligament at its femoral attachment site; tearing of the meniscus; damage to the kneecap, and tibial spine spur formation. (R. 791-92.)
A March 9, 2019 MRI of plaintiff's cervical spine revealed retrolisthesis of C4 on C5, through C6 on C7, and impingement on both lateral recesses related to vertebral osseous ridging bilaterally on the right side at ¶ 4 through C7. (R. 808-10.)
Retrolisthesis "occurs when a single vertebra slips and moves back along the intervertebral disc underneath or above it." Healthline, Retrolisthesis: What You Should Know, https://www.healthline.com/health/retrolisthesis.
An MRI of plaintiff's lumbar spine taken the same day revealed retrolisthesis of L5 on S1 and abutment of the exiting L5 nerve roots; hypertrophic facets at ¶ 1-L2; a posterior disc bulge noted at ¶ 2-L3, with an extension of disc material into the neural foramen bilaterally and facet and ligamentum flavum hypertrophy, though no significant nerve root impingement was seen; and a posterior disc bulge noted at ¶ 3-L4, with extension of disc material into the neural foramen bilaterally and abutting the exiting L3 nerve roots, left greater than right, with hypertrophic facets. (R. 805-07.)
An X-ray of the lumbar spine, also taken on May 9, 2019, revealed minimal retrolisthesis of L5 on S1, but no evidence of dynamic instability. (R. 759.)
C. Consultative Orthopedic Examiner Dr. Healy
On January 24, 2020, Michael Healy, M.D., conducted an orthopedic examination of plaintiff at the request of the SSA. (R. 392-95.) Plaintiff told Dr. Healy that he developed "severe back pain" as a result of the November 2018 car accident and that, although the lumbar laminectomy "helped a little bit," he continued to experience "pain and weakness." (R. 392.) Plaintiff further reported that he had difficulty cooking, cleaning, laundering, and shopping, because it was difficult for him to bend, though he could shower and dress himself. (Id.) He reported that he was not taking any medications. (Id.)
Dr. Healy assessed that plaintiff was in "no acute distress." (R. 393.) His gait was slightly widened, and his squat was at 30%. (Id.) Plaintiff could stand and walk on his toes, and could stand, but not walk, on his heels. (Id.) He did not need assistance getting up from his chair, changing for the exam, or getting on and off the exam table. (Id.)
On examination, Dr. Healy found decreased flexion (30 degrees) and extension (30 degrees) in the cervical spine, decreased right and left lateral flexion (10 degrees), and decreased right and left rotary motion (30 degrees). (R. 393.) Plaintiff's lumbar spine also showed decreased ROM in flexion (30 degrees), extension (30 degrees), right and left lateral flexion (10 degrees), and right and left rotation (30 degrees). (R. 394.) Dr. Healy found plaintiff had full bilateral ROM of his shoulders, elbows, forearms, wrists, fingers, ankles, and hips. (Id.) He did have a decreased ROM of his left knee, with flexion/extension at 45 degrees, associated with mild discomfort, but full ROM of his right knee. (Id.) Plaintiff's joints were stable and nontender, his reflexes were normal, and he had no sensory deficits, though he did show decreased strength (4/5) in the lower extremities. (Id.) Notwithstanding plaintiff's multiple prior negative SLR tests, Dr. Healy wrote that plaintiff could not "raise either leg above 20 degrees." (Id.)
Dr. Healy opined that plaintiff had "moderate limitations with sitting, standing, walking, bending, lifting, and climbing stairs." (R. 395.)
D. State Agency Medical Reviewers
On March 23, 2020, D. Wallace, M.D., reviewed plaintiff's medical records, including Dr. Healy's report. (R. 79-87.) Dr. Wallace opined that plaintiff could perform exertionally "light" work, in that he could occasionally lift and/or carry up to 20 pounds; could frequently lift and/or carry up to 10 pounds; could stand and/or walk, with normal breaks, for about six hours in an eighthour workday; could sit, with normal breaks, for about six hours in an eight-hour workday; and had no limitations for pushing and pulling. (R. 83-84.) As to postural limitations, Dr. Wallace opined that plaintiff could occasionally climb ramps or stairs, balance, stoop, kneel, crouch, or crawl, but could never climb ladders, ropes, or scaffolds. (R. 84.)
Light work:
involves lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. Even though the weight lifted may be very little, a job is in this category when it requires 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. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities[.]20 C.F.R. §§ 404.1567(b), 416.967(b).
On July 9, 2020, at the reconsideration level, A. Vinluan, M.D., reviewed plaintiff's medical records and rendered an opinion identical to Dr. Wallace's. (R. 99-107.) III. THE HEARING
On December 9, 2020, plaintiff appeared, with counsel, before ALJ Prybylski. Plaintiff testified that he is married, but lives alone. (R. 49.) He completed a GED and attended college, but did not attain a degree. (R. 49-50.)
Plaintiff told the ALJ that, immediately before his car accident, he spent a little under a year working for a company called Forrest Solutions, which involved working at a law firm as an office clerk. (R. 51.) Before that, he held a similar position for two years at a different firm before being laid off. (R. 52.) At that job, he "did a little bit of everything," including "standing, . . . copying, sitting and doing computer work." (Id.) Earlier in his career, he worked as a messenger, which involved being on his feet all day, lifting, and carrying, before working his way up to an office clerk position. (R. 53.)
With regard to the injuries sustained in the car accident, plaintiff testified that his knee was "okay for the most part" (R. 55), and that his radiating leg pain went away after his back surgery (R. 56-57), but that his low back still "really hurts," causing him to "cringe from time to time" because "[i]t can be really tight." (R. 55.) He stated that he could only lift "about seven, maybe eight pounds." (R. 56.) Additionally, plaintiff testified that he experienced pain and stiffness in his neck, though he had good days and bad days. (R. 57) At home, plaintiff used a chair with a lot of cushions. (R. 59.) Asked about employment, plaintiff testified that he was working "about 45 minutes" a day, delivering salads to a business. (R. 50.) He had been doing this work since December 2019, earning $25 per day. (R. 51.) Plaintiff testified that he could not do that work for eight hours a day because of his back pain. (Id.)
Plaintiff testified that he was unable to stand too long because his back got uncomfortable, and estimated that he could stand for "[m]aybe a half hour, maybe a little less than that" before needing to sit down. (R. 56.) He did not believe that he could do a job like his prior office clerk job, because it would involve too much lifting and too much walking. (R. 55.)
Plaintiff testified that although his wife did not live with him, she assisted him with laundry and cooking, and "helps clean up." (R. 57-58.) Asked about traveling, plaintiff testified that he took the subway from the Bronx into Manhattan for his delivery job, using the escalator. (R. 58.) He also traveled to physical therapy twice a week, and to a chiropractor twice a week. (R. 59.)
As noted above, the administrative record does not include any records reflecting plaintiff's chiropractic treatment.
VE Durr then testified. The VE classified plaintiff's past positions as: (1) Messenger, DOT 209.687-026 (SVP 2), which was usually "light-duty"; and (2) Office Clerk, DOT 209.532-010 (SVP 3), which was also "light-duty." (R. 60.)
"'SVP' stands for 'specific vocational preparation,' and refers to the amount of time it takes an individual to learn to do a given job . . . SVP uses a scale from 1 to 9 and the higher the SVP number the greater the skill required to do the job." Garcia v. Comm'r of Soc. Sec., 2022 WL 4234555, at *9 n.18 (S.D.N.Y. Sept. 14, 2022) (quoting Urena-Perez v. Astrue, 2009 WL 1726217, at *20 (S.D.N.Y. Jan. 6, 2009)), amended in part on other grounds, 2022 WL 17103621 (S.D.N.Y. Nov. 22, 2022).
The ALJ asked VE Durr whether plaintiff's past work could be performed by a hypothetical individual who:
could perform the full-range of sedentary work as that's defined in the Dictionary of Occupational Titles, but they would need a sit/stand option which I'm going to define this way; they could sit or stand for 30 minutes at a time, but then they would need to switch positions for ten minutes before they could resume the original position, and I think this could be done without any significant off-task time. And this person would be limited to occasional climbing of ramps or stairs; they could never climb ladders, ropes, or scaffolds; they could occasionally stoop, kneel, crouch, and crawl.(R. 60-61.)
Sedentary work:
involves lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers, and small tools. Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met.20 C.F.R. §§ 404.1567(a), 416.967(a).
VE Durr opined that the hypothetical claimant could not perform plaintiff's past jobs as a messenger or office clerk. (R. 61.) The hypothetical claimant could, however, perform work as a Food and Beverage Order Clerk, DOT 209.567-014 (SVP 2), which is performed at a sedentary level; a Lens Inserter, DOT 713.687-026 (SVP 2), which is performed at a sedentary level; or an Account Clerk, DOT 205.367-014 (SVP 2), which is performed at a sedentary level. (Id.)
The ALJ then asked VE Durr to determine whether her testimony would change as to a second hypothetical claimant, who had all of the limitations of the first, but also "would need to lie down for one hour for every eight-hour workday; and we're not talking about something that could, necessarily, be done during a break." (R. 61.) The VE testified that there would be no work that could accommodate that limitation. (Id.)
Under questioning from plaintiff's counsel, VE Durr testified that the maximum percentage of time off-task is 10% of the day and that the acceptable level of absences would be one day per month. (R. 62.)
IV. THE ALJ's DECISION
ALJ Prybylski issued his Decision on January 25, 2021. Before undertaking the five-step analysis mandated by 20 C.F.R. §§ 404.1520(a)(4)(i)-(v) and 416.920(a)(4)(i)-(v), the ALJ found that plaintiff met the insured status requirements of the Act through December 31, 2023. (R. 15.)
At step one of the five-step analysis, see 20 C.F.R. §§ 404.1520(a)(4)(i), 416.920(a)(4)(i), the ALJ found that plaintiff "has not engaged in substantial gainful activity since November 13, 2018." (R. 15.) At step two, see 20 C.F.R. §§ 404.1520(a)(4)(ii), 416.920(a)(4)(ii), the ALJ found that plaintiff has the "severe" impairments of "[l]eft meniscus tear, lumbar disc disease postsurgery, degenerative disc disease, plantar fasciitis." (Id.) However, at step three, see 20 C.F.R. §§ 404.1520(a)(4)(iii), 416.920(a)(4)(iii), the ALJ found that none of plaintiff's impairments, individually or in combination, "meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1[.]" (R. 16.) To make this finding, the ALJ considered whether plaintiff met Listing 1.02 (Musculoskeletal Disorders) or former Listing 1.04 (Disorders of the Spine).
The ALJ found that plaintiff did not meet either Listing. (R. 16.) As for Listing 1.04, the ALJ explained:
The claimant's degenerative disc disease does not meet Listing 1.04 because the record does not demonstrate compromise of a nerve root (including the cauda equina) or the spinal cord with additional findings of: A) evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising; or B) spinal arachnoiditis; or C) lumbar spinal stenosis resulting in pseudoclaudication.(Id.)
Before proceeding to step four, the ALJ determined plaintiff's residual functional capacity (RFC) (R. 16), that is, "the most [a claimant] can still do despite [his] limitations." 20 C.F.R. §§ 404.1545(a)(1), 416.945(a)(1). In developing plaintiff's RFC, the ALJ considered plaintiff's testimony; his medical records, including treatment notes from Drs. Dassa and Auerbach and physical therapy records from Vista; the objective medical evidence, including MRIs and x-rays; the opinion of consultative examiner Dr. Healy; and the opinions of state agency consultants Drs. Vinluan and Wallace. (R. 16-19.) The ALJ "considered all symptoms and the extent to which these symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence" in the record (R. 16), and found that plaintiff's impairments could be expected to cause the symptoms he alleged, but that his statements regarding the intensity, persistence, and limiting effects of those symptoms were "not entirely consistent with the medical evidence and other evidence in the record for the reasons explained in this decision." (R. 18.)
The ALJ then evaluated each medical opinion and prior administrative finding in the record. (R. 19.) He found the opinion of Dr. Healy "persuasive" because it was "consistent with the medical evidence of record overall." (Id.) The ALJ found the less restrictive opinions of Drs. Vinluan and Wallace - that plaintiff was capable of light exertional activity - "generally persuasive," because they were "fairly consistent with the treatment record," but concluded that "the claimant's allegations support a limitation to a level of sedentary work." (Id.)
The ALJ also noted that Dr. Dassa's initial orthopedic evaluation "suggested a 'temporary total disability,'" but gave that assessment "no special significance," because it constituted "an opinion on an issue reserved to the Commissioner." (R. 19 (citing R. 789).)
Since "[t]he ultimate finding of whether the claimant is disabled is reserved to the agency," Schillo v. Kijakazi, 31 F.4th 64, 70 (2d Cir. 2022), an ALJ need not - indeed, should not - accord any weight to a medical opinion couched solely in those terms. See 20 C.F.R. §§ 404.1527(d)(1), 416.927(d)(1) ("We are responsible for making the determination or decision about whether you meet the statutory definition of disability.... A statement by a medical source that you are 'disabled' or 'unable to work' does not mean that we will determine that you are disabled.")
The ALJ concluded that plaintiff had the RFC to perform sedentary work as defined by 20 C.F.R. §§ 404.1567(a), 416.967(a), with additional restrictions, as follows:
[T]he claimant needs an option to sit or stand, with the claimant able to sit or stand for 30 minutes at a time but would need to switch for 10 minutes before resuming original posture; could occasionally climb ramps or stairs, stoop, kneel, crouch, and crawl; and can never climb ladders, ropes or scaffolds.(R. 16.)
At step four, see 20 C.F.R. §§ 404.1520(a)(4)(iv), 416.920(a)(4)(iv), on the basis of his RFC determination and the VE's testimony, the ALJ found that plaintiff could not perform his past relevant work, and at step five, see 20 C.F.R. §§ 404.1520(a)(4)(v), 416.920(a)(4)(v), the ALJ determined that there are jobs in the national economy that plaintiff could perform, considering his age, education, work experience, and RFC, including: (1) food and beverage order clerk; (2) lens inserter; and (3) account clerk. (R. 20.) Consequently, the ALJ concluded, plaintiff was not under a disability, as defined in the Act, at any time since he filed his application. (Id.)
V. THE PARTIES' POSITIONS
Plaintiff argues that the Decision is not supported by substantial evidence because the ALJ failed to discuss the time that plaintiff would spend off-task or be absent from work (and failed to properly develop the record as to this issue by contacting Dr. Auerbach to "address" it), and because the sit/stand option in plaintiff's RFC was inconsistent with SSR 83-12, 1983 WL 31253, at *4 (S.S.A. 1983), which states that a person "ordinarily" cannot sit or stand at will in an unskilled job. See Pl. Mem. (Dkt. 21) at 11-15. He further argues that the ALJ erred in finding that plaintiff did not meet Listing 1.04, id. at 15-19; in failing to separately consider plaintiff's cervical herniations when formulating plaintiff's RFC, id. at 19-20; and in evaluating plaintiff's subjective symptoms. Id. at 20-23. Lastly, plaintiff argues that the ALJ's RFC is not supported by "any medical opinions." Id. at 24.
In response, the Commissioner argues that plaintiff failed to establish that he would have significant absences from work, Def. Mem. (Dkt. 24) id. at 4-6; that the ALJ was not obligated to contact Dr. Auerbach because "there was no evidentiary deficiency preventing the ALJ from making a determination," id. at 7-8; that the ALJ's RFC determination is consistent with SSR 8312, particularly since the ALJ relied on the testimony of the VE as to unskilled jobs that plaintiff could perform with a sit/stand option, id. at 8; that the ALJ properly concluded that plaintiff did not meet Listing 1.04, because there was no evidence of motor, sensory, or reflex loss, nor the inability to ambulate effectively, id. at 9-11; that the ALJ properly considered all of plaintiff's established functional limitations when formulating his RFC, including limited cervical ROM and associated pain, id. at 11-12; that the ALJ properly considered plaintiff's subjective complaints, id. at 12-14, and that the ALJ's decision is supported by substantial evidence, including the medical opinion evidence in the record. Id. at 14-16.
VI. ANALYSIS
In considering the parties' motions, I have reviewed the entire administrative record (totaling 816 pages) and applied the familiar and frequently reiterated standards used by federal district courts to review decisions of the Commissioner.
A court may set aside an ALJ's decision only if it is based upon legal error or if the ALJ's factual findings are not supported by substantial evidence. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999); Conyers v. Comm'r of Soc. Sec., 2019 WL 1122952, at *11-13 (S.D.N.Y. Mar. 12, 2019); Calvello v. Barnhart, 2008 WL 4452359, at *8 (S.D.N.Y. Apr. 29, 2008), report and recommendation adopted, 2008 WL 4449357 (S.D.N.Y. Oct. 1, 2008). "The Court first reviews the Commissioner's decision for compliance with the correct legal standards; only then does it determine whether the Commissioner's conclusions were supported by substantial evidence." Ulloa v. Colvin, 2015 WL 110079, at *6 (S.D.N.Y. Jan. 7, 2015) (citing Tejada, 167 F.3d at 773).
"Substantial evidence is 'more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'" Halloran v. Barnhart, 362 F.3d 28, 31 (2d Cir. 2004) (quoting Richardson v. Perales, 402 U.S. 389, 401 (1971)). "In determining whether substantial evidence exists, a reviewing court must consider the whole record, examining the evidence from both sides, because an analysis of the substantiality of the evidence must also include that which detracts from its weight." Longbardi v. Astrue, 2009 WL 50140, at *21 (S.D.N.Y. Jan. 7, 2009) (citing Brown v. Apfel, 174 F.3d 59, 62 (2d Cir. 1999); Williams v. Bowen, 859 F.2d 255, 258 (2d Cir. 1988)). "However, the reviewing court's task is limited to determining whether substantial evidence exists to support the ALJ's fact-finding; it may not reweigh that evidence or substitute its judgment for that of the ALJ where the evidence is susceptible of more than one interpretation." Dubois v. Comm'r of Soc. Sec., 2022 WL 845751, at *4 (S.D.N.Y. Mar. 21, 2022). "[O]nce an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise." Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012) (emphasis in original) (quotation marks omitted). Thus, the substantial evidence standard is "a very deferential standard of review." Id.
A claimant's RFC is based on all of the relevant medical and other evidence in the record, including his credible testimony, objective medical evidence, and medical opinions from treating and consulting sources. 20 C.F.R. §§ 404.1520(a)(3), 404.1545(a)(3), 416.920(a)(3), 416.945(a)(3). Although necessarily informed by the medical evidence in the record, "[a]n RFC finding is administrative in nature, not medical, and its determination is within the province of the ALJ[.]" Curry v. Comm'r of Soc. Sec., 855 Fed.Appx. 46, 48 n.3 (2d Cir. 2021).
A. The ALJ Did Not Err at Step Three
At the third step of the sequential evaluation, the ALJ considers each of the claimant's severe impairments. If he has an impairment that meets or equals one of the Listings, the ALJ must find him disabled, regardless of age, education, or work experience. 20 C.F.R. §§ 404.1520(d), 416.920(d). However, "[f]or a claimant to show that his impairment matches a listing, it must meet all of the specified medical criteria. An impairment that manifests only some of those criteria, no matter how severely, does not qualify." Sullivan v. Zebley, 493 U.S. 521, 530 (1990) (emphasis in original); accord Scully v. Berryhill, 282 F.Supp.3d 628, 636 (S.D.N.Y. 2017) (ALJ properly found that plaintiff's impairments did not meet or medically equal Listing 1.04 where there was no evidence of nerve root compression).
Listing 1.04 (Disorders of the Spine), "no longer exists." Aguirre v. Saul, 568 F.Supp.3d 477, 484 n.2 (S.D.N.Y. 2021). It was replaced with Listing 1.15, effective April 2, 2021. See 85 Fed.Reg. 78164, 78164 (Dec. 3, 2020). However, because Listing 1.04 was applicable at the time of the ALJ's Decision, I review the Decision under that rule. See Yucekus v. Comm'r of Soc. Sec., 829 Fed.Appx. 553, 555 (2d Cir. 2020) (summary order) (courts "apply the version of the social security regulations and rulings in effect at the time of the ALJ's decision.").
To satisfy Listing 1.04, a claimant was required to show: a "disorder[] of the spine . . . resulting in compromise of a nerve root (including the cauda equina) or the spinal cord," with either: (a) "[e]vidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss . . . accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine)" (Listing 1.04A), (b) spinal arachnoiditis (Listing 1.04B), or (c) lumbar spinal stenosis which results in an inability to ambulate effectively (Listing 1.04C). 20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04 (May 22, 2018).
Although plaintiff suffers from degenerative disc disease (one of the disorders included within Listing 1.04), there is no evidence in the record of "spinal arachnoiditis" or "lumbar spinal stenosis . . . resulting in inability to ambulate effectively," as required to meet Listing 1.04B or C. That leaves only Listing 1.04A, which required:
Evidence of nerve root compression characterized by neuro-anatomic distribution of pain, limitation of motion of the spine, motor loss (atrophy with associated muscle weakness or muscle weakness) accompanied by sensory or reflex loss and, if there is involvement of the lower back, positive straight-leg raising test (sitting and supine).20 C.F.R. Pt. 404, Subpt. P, App. 1 § 1.04A. Prior to his decompression surgery on June 20, 2019, plaintiff complained of radiating leg pain, that is, "neuro-anatomic distribution of pain." (R. 547.) But that symptom resolved after the surgery, which relieved the pressure on the nerves. (R. 588.) At his follow-up visits, and at the hearing before the ALJ, plaintiff reported that his leg pains were gone. (R. 738, 741, 56-57.). His counsel agreed, explaining at the hearing that plaintiff's "radicular symptoms have subsided." (R. 48.) Moreover, Listing 1.04A requires "sensory or reflex loss." Here, both Dr. Auerbach and Dr. Healy found no sensory deficits and no diminished reflexes. (R. 394, 547, 568.). Consequently, the ALJ did not err in finding that plaintiff did not meet Listing 1.04.
B. Any Error in Evaluating Plaintiff's Subjective Statements Was Harmless
In his brief, plaintiff argues that the ALJ failed to conduct a "detailed analysis" of plaintiff's subjective statements regarding his pain and other symptoms before coming to the "boilerplate" conclusion that plaintiff's statements were "not entirely consistent with the medical evidence and other evidence in the record." Pl. Mem. at 21 (quoting R. 19). In particular, plaintiff charges that the ALJ did not discuss all of the factors set forth in SSR 96-7P, and failed to consider plaintiff's "strong work history" prior to his accident. Pl. Mem. at 21-23 (citing SSR 96-7P, 1996 WL 374186 (S.S.A. July 2, 1996)).
When assessing a claimant's statements about the intensity, persistence, or functionally limiting effects of his symptoms, the ALJ should consider, in addition to any objective medical evidence that substantiates the claimant's statements, the following types of evidence:
1. The individual's daily activities; 2. [t]he location, duration, frequency, and intensity of the individual's pain or other symptoms; 3. [f]actors that precipitate and aggravate the symptoms; 4. [t]he type, dosage, effectiveness, and side effects of any medication the individual takes or has taken to alleviate pain or other symptoms; 5. [t]reatment, other than medication, the individual receives or has received for relief of pain or other symptoms; 6. [a]ny measures other than treatment the individual uses or has used to relieve pain or other symptoms (e.g., lying flat on his or her back, standing for 15 to 20 minutes every hour, or sleeping on a board); and 7. [a]ny other factors concerning the individual's functional limitations and restrictions due to pain or other symptoms.SSR 96-7P, 1996 WL 374186, at *3.
As with any finding of fact, an ALJ's assessment of a claimant's subjective complaints regarding his pain and other symptoms is entitled to substantial deference by the reviewing court. Rivera v. Berryhill, 2018 WL 4328203, at *10 (S.D.N.Y. Sept. 11, 2018) (citing Osorio v. Barnhart, 2006 WL 1464193, at *6 (S.D.N.Y. May 30, 2006)). Thus, a court may not "second-guess" the ALJ's decision to discount a claimant's statements about his symptoms "where the ALJ identified specific record-based reasons for his ruling," Stanton v. Astrue, 370 Fed.Appx. 231, 234 (2d Cir. 2010), and where his determination is supported by substantial evidence. Selian v. Astrue, 708 F.3d 409, 417 (2d Cir. 2012).
Plaintiff is correct that where an ALJ discredits the claimant's testimony, the basis for the finding must be "set forth with sufficient specificity to permit intelligible plenary review of the record." Agapito v. Colvin, 2014 WL 774689, at *3 (S.D.N.Y. Feb. 20, 2014) (quoting Williams, 859 F.2d at 260-61); see also Ferraris v. Heckler, 728 F.2d 582, 587 (2d Cir. 1984) ("[T]he crucial factors in any determination must be set forth with sufficient specificity to enable [the reviewing court] to decide whether the determination is supported by substantial evidence."). However, the ALJ "is not required to explicitly address each and every statement made in the record that might implicate his evaluation of the claimant's credibility as long as the evidence of record permits the court to glean the rationale of an ALJ's decision." Morgan v. Comm'r of Soc. Sec., 2022 WL 3044861, at *15 (S.D.N.Y. July 8, 2022) (quotingMorales v. Berryhill, 484 F.Supp.3d 130, 151 (S.D.N.Y. 2020)), report and recommendation adopted sub nom. Morgan v. Kijakazi, 2022 WL 3044576 (S.D.N.Y. Aug. 2, 2022); see also Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (where "the evidence of record permits us to glean the rationale of an ALJ's decision, we do not require that he have mentioned every item of testimony presented to him or have explained why he considered particular evidence unpersuasive or insufficient"); Lane v. Saul, 2020 WL 3965257, at *9 (S.D.N.Y. Mar. 16, 2020) ("listing each of the seven factors is not necessary where the decision shows the ALJ evaluated Plaintiff's credibility by considering all of the relevant evidence"), report and recommendation adopted, 2020 WL 1876325 (S.D.N.Y. Apr. 15, 2020).
Even where the ALJ has committed legal error in his evaluation of the plaintiff's subjective statements, that error may be disregarded as harmless where "substantial evidence supported the ALJ's overall credibility determination." Suttles v. Colvin, 654 Fed.Appx. 44, 47 (2d Cir. 2016) (summary order); see also Snyder v. Colvin, 667 Fed.Appx. 319, 320 (2d Cir. 2016) (summary order) (notwithstanding ALJ's error in failing to consider why plaintiff did not seek mental health treatment, remand was not required, because "the credibility determination was supported by other substantial record evidence"); Estrella v. Berryhill, 2019 WL 1367757, at *3 (E.D.N.Y. Mar. 26, 2019) (ALJ's error in credibility evaluation was harmless because his finding "is supported by substantial evidence"); Kuchenmeister v. Berryhill, 2018 WL 526547, at *19 (S.D.N.Y. Jan. 19, 2018) (ALJ's error in relying on plaintiff's inconsistent attendance at therapy when determining plaintiff's credibility was harmless because the ALJ's "overall determination to discount plaintiff's subjective complaints is supported by substantial evidence, even if plaintiff's inconsistent attendance at therapy sessions is ignored"); Messina v. Astrue, 2009 WL 4930811, at *7 (S.D.N.Y. Dec. 21, 2009) ("Even if the ALJ failed to consider [the plaintiff]'s work record as a factor in his credibility determination, it is harmless error, as substantial evidence in the record supports the ALJ's credibility assessment."). Additionally, errors in assessing a claimant's credibility will be deemed harmless where "the ALJ did not discredit any material portions of Plaintiff's testimony." Cillari v. Colvin, 2015 WL 1433371, at *20 (S.D.N.Y. Mar. 30, 2015) (affirming Commissioner's denial of benefits even though the ALJ's credibility assessment was "brief and rather opaque").
In this case, the ALJ did not wholly reject plaintiff's subjective statements regarding his symptoms. As plaintiff points out (Pl. Mem. at 23), the ALJ expressly relied on "claimant's allegations" to limit his RFC to sedentary work, notwithstanding that Drs. Wallace and Vinluan both found plaintiff capable of light work. (R. 19.) Dr. Healy's opinion - that plaintiff had only "moderate" limitations in sitting, standing, walking, bending, lifting, and climbing stairs (R. 39395) - would also have supported an RFC for light work, as "[c]ourts in this circuit repeatedly have held." Gabrielle C. v. Commissioner of Soc. Sec., 2023 WL 5200159, at *2 (W.D.N.Y. Aug. 14, 2023) (collecting cases); see also White v. Berryhill, 753 Fed.Appx. 80, 82 (2d Cir. 2019) (summary order) (consultative examiner's opinion that plaintiff had moderate limitations in standing, sitting, and performing "other activities" supported RFC for light work); Garcia, 2022 WL 4234555, at *15 ("moderate limitations in, inter alia, standing, walking[,] and bending do not preclude performance of light work").
To be sure, there were portions of plaintiffs testimony that the ALJ did not accept, including, for example, that he could only lift seven or eight pounds, could only stand for "[m]aybe about half an hour," and sometimes had to "lay down for a few hours." (R. 56, 58.) As to these statements, plaintiff is correct that the ALJ failed to conduct a "detailed analysis," and did not expressly evaluate each such statement in light of the seven factors listed in SSR 96-7P. Pl. Mem. at 21. However, the ALJ did set out the facts on which he relied, thus permitting the Court to "glean the rationale" of his credibility finding. Morgan, 2022 WL 3044861, at *15. For example, the ALJ noted that plaintiffs radicular symptoms, as well as most of his knee pain, resolved after his two surgeries in 2019; that even before the back surgery, he required no pain medication - and walked to his pre-operative appointment (despite a reported exercise tolerance of "5 blocks"); that he ambulated with no assistive devices; and that he worked daily, albeit on a part-time basis, delivering salads, and was able to travel to his job site in Manhattan from his home in the Bronx by subway. (R. 17-18.) I therefore conclude that the ALJ adequately "evaluated Plaintiff's credibility by considering all of the relevant evidence." Lane, 2020 WL 3965257, at *9.
Although plaintiff's part-time work did not constitute "substantial gainful activity," the ALJ was entitled to take it into consideration when evaluating plaintiff's subjective statements. See Johnston v. Colvin, 2015 WL 657774, at *9 (S.D.N.Y. Feb. 13, 2015) (ALJ properly considered plaintiff's "ability to work part-time" and did not err in "rel[ying] on such evidence in assessing her credibility"), report and recommendation adopted, 2015 WL 1266895 (S.D.N.Y. Mar. 18, 2015).
I further conclude that substantial evidence in the record "supported the ALJ's overall credibility determination," and thus that if the ALJ erred in failing to set out his reasoning in more detail, that error was harmless. Suttles, 654 Fed.Appx. at 47. As the Commissioner points out, Def. Mem. at 2-3, plaintiff reported to the SSA that he went out "often," and had no difficulty driving. (R. 282.) He confirmed in his January 3, 2020 disability report, and again at his January 24, 2020 appointment with Dr. Healy, that he was no longer taking any pain medication, prescription or non-prescription. (R. 304, 392.). And although he told the ALJ that he saw his physical therapist twice a week and his chiropractor twice a week (R. 59), he never identified his chiropractor or supplied any records of ongoing chiropractic treatment. Nor, for that matter, did his physical therapy records support his claim of treatment twice a week. On this record, the ALJ was not required to find the plaintiff "fully credible," Pl. Mem. at 23, and the Court is not required to remand for a more detailed analysis.
Vista's records reflected four physical therapy appointments in January 2020 and three in February 2020, the last month for which records were supplied. (R. 398-415.)
C. Substantial Evidence Supported the ALJ's RFC Determination
The ALJ must assess the claimant's RFC based on all the relevant medical and other evidence of record, taking into consideration the limiting effects of all the claimant's impairments. See SSR 96-8p, 1996 WL 374184, at *2, *5. The relevant evidence includes the claimant's medical history, "effects of treatment," reports of the claimant's "daily activities," "[m]edical source statements," "effects of symptoms," and "[e]vidence from attempts to work," among other things. Id. at *5.
Regardless of how many medical source statements the ALJ receives - or the weight he assigns to them - the determination of the claimant's RFC is reserved to the ALJ, who is not required to accept, or follow, any one medical opinion. See Camille v. Colvin, 652 Fed.Appx. 25, 29 n.5 (2d Cir. 2016) (summary order) ("An ALJ may accept parts of a doctor's opinion and reject others."). "[I]t is the ALJ's prerogative to make an RFC assessment after weighing the evidence and the District Court may not reverse provided there is substantial evidence in the record to support her findings." Moronta v. Comm'r of Soc. Sec., 2019 WL 4805801, at *19 (S.D.N.Y. Sept. 30, 2019) (quotingMitchell v. Astrue, 2010 WL 3070094, at *5 (W.D.N.Y. Aug. 4, 2010)).
In this case, there is substantial evidence to support the ALJ's RFC determination, and hence his conclusion that plaintiff was not disabled. (R. 20.) Plaintiffs treatment records, as noted above, demonstrate that his surgeries successfully resolved his sciatica (referred leg pain) and substantially resolved his knee pain, and that while he continued to experience low back pain and stiffness, these symptoms resulted in only moderate limitations, consistent with the ALJ's RFC formulation, which prescribed sedentary work with additional accommodations, including the "option to sit or stand, with the claimant able to sit or stand for 30 minutes at a time but would need to switch for 10 minutes before resuming original posture." (R. 16.) Additionally, the ALJ found that plaintiff could only occasionally "climb ramps or stairs, stoop, kneel, crouch, and crawl," and could "never climb ladders, ropes or scaffolds." (Id.)
Plaintiffs argument that the ALJ erred in formulating plaintiff's RFC because "he did not consider Mr. Davis' cervical herniations," Pl. Mem. at 19, is unavailing. The ALJ specifically noted that plaintiff's cervical MRI revealed "impingement and disc herniation" (R. 17), that plaintiff had continuing back pain, and that his "[c]ervical spine motion was limited." (R.18.) Moreover, as the Commissioner points out, the "operative question" in determining disability under the Act is not the names or number of diagnoses present but the "functional limitations" caused by plaintiff's impairments. Def. Mem. at 11. Here, the ALJ's RFC formulation clearly took plaintiffs cervical impairment into account and appropriately accommodated them.
Nor did the ALJ err by "failing to consider the amount of plaintiff's monthly absences and time off task." Pl. Mem. at 12. Although plaintiff testified that he would need to attend four appointments per week (R. 59), the underlying medical records do not support the need for such frequent treatment. Dr. Auerbach recommended physical therapy, but said nothing about chiropractic treatment. (R. 811.) Moreover, as noted above, plaintiff's medical records show that he attended physical therapy once a week (not twice). (See generally R. 398-415.) There are no medical records evidencing regular chiropractic appointments.
Even if plaintiff did require four therapy appointments per week, there is no reason to believe that they could not be scheduled outside of working hours. Significantly, the record before the ALJ included no "medical opinion finding [that plaintiff] would need to miss work to attend his medical appointments." Jason R. v. Comm'r of Soc. Sec., 2021 WL 1131265, at *6-7 (W.D.N.Y. Mar. 24, 2021) (collecting cases and noting that in the absence of such opinion evidence, courts routinely reject the argument that the ALJ erred by failing to account for "excessive absences"); see also Glowacki v. Comm'r of Soc. Sec., 2021 WL 2980526, at *5 (W.D.N.Y. July 15, 2021) (rejecting plaintiff's "assertion that he could not have attended work on a sustained basis from his onset date forward because of the amount and timing of the medical treatment he received" where "there is no medical opinion from a treating doctor about Plaintiff's need to miss work or that the appointments need[ed] to take place during work hours.").
In the cases on which plaintiff principally relies for the proposition that the ALJ should have taken his therapy schedule into account, there was medical opinion evidence on that point. See Guzman v. Comm'r, 2022 WL 2325908, at *10 (S.D.N.Y. June 10, 2022) (plaintiff's treating physician opined that plaintiff would be absent more than once per month); Palin v. Saul, No. 20-CV-1758, Dkt. 26, at 22 (S.D.N.Y. July 29, 2021) (plaintiff's treating physician opined that plaintiff would "miss work more than three days each month"), report and recommendation adopted, No. 20-CV-1758, Dkt. 27 (S.D.N.Y. Sept. 15, 2021); Greek v. Colvin, 802 F.3d 370, 373 (2d Cir. 2015) (plaintiff's treating physician opined that plaintiff would "likely be absent from work more than four days per month"); Iglesias-Serrano v. Colvin, 2016 WL 7441697, at *7 (S.D.N.Y. Dec. 23, 2016) (treating physician opined that plaintiff's "physical ailments could . . . cause her to miss more than one day of work per month").
Moreover, plaintiff has not identified any authority - and the Court has found none -suggesting that whenever a VE testifies that an employer would not tolerate more than a certain number of absences per month (that is, in all or nearly all cases involving VE testimony), the ALJ has duty to recontact the plaintiff's treating physician "to address the issue of how many days month plaintiff would miss work." Pl. Mem. at 13. Such a duty generally arises only when the existing record is inconsistent, or insufficient to make a disability determination. See 20 C.F.R. §§ 404.1520b(b), 416.920b(b); Cichocki v. Astrue, 534 Fed.Appx. 71, 77 (2d Cir. 2013) (summary order) (where "substantial evidence . . . supported his determination, the ALJ was not under a duty to further develop the record"). Here, Dr. Auerbach prescribed physical therapy, and plaintiff attended physical therapy approximately once per week in January and February 2020. I note as well that plaintiff's counsel, who attended the hearing, voiced no objection to the record as it existed that day (R. 47), and never requested that it be supplemented or augmented in any way. Consequently, the ALJ had no obligation either to accommodate plaintiff's asserted therapy schedule in his RFC or to seek additional information from Dr. Auerbach.
D. The Sit/Stand Option Was Appropriate
Plaintiff contends that it was "improper" for the ALJ to include a sit/stand option in plaintiff's RFC formulation, because the jobs identified by the VE were all "unskilled" and SSR 83-12 states that "[u]nskilled types of jobs are particularly structured so that a person cannot ordinarily sit or stand at will." Pl. Mem. at 14 (quoting SSR 83-12, 1983 WL 31253, at *4). As the Commissioner points out, however, SSR 83-12 "addresses situations where the ALJ is using the Medical Vocational Guidelines." Def. Mem. at 8, whereas in this case the ALJ relied on a VE, who testified that all three of the jobs she identified could in fact be performed by an individual who needed a sit/stand option. (R. 20.) This is precisely what SSR 83-12 recommends "[i]n cases of unusual limitation of ability to sit or stand," SSR 83-12, 1983 WL 31253, at *4. Consequently, the ALJ did not err in obtaining, and relying on, VE testimony to support his determination that, even with a required sit/stand option, there are jobs in the national economy that plaintiff can perform. (R. 20.)
VII. CONCLUSION
For the reasons set forth above, I recommend, respectfully, that plaintiff's motion (Dkt. 20) be DENIED, that the Commissioner's motion (Dkt. 23) be GRANTED, and that this action be DISMISSED.
NOTICE OF PROCEDURE FOR FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have 14 days from this date to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b). See also Fed.R.Civ.P. 6(a) and (d). A party may respond to another party's objections within fourteen days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Any such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the Hon. Valerie E. Caproni at 40 Foley Square, New York, New York 10007. Any request for an extension of time to file objections must be directed to Judge Caproni. Failure to file timely objections will result in a waiver of such objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140, 155 (1985); Frydman v. Experian Info. Sols., Inc., 743 Fed.Appx. 486, 487 (2d Cir. 2018) (summary order); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010).