Opinion
17 Civ. 943 (PMH) (AEK)
04-13-2021
KEVIN G. FUREY, Plaintiff, v. ANDREW SAUL, [1] COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION
TO: THE HONORABLE PHILIP M. HALPERN, U.S.D.J.
This case was originally referred to Magistrate Judge Lisa Margaret Smith on July 25, 2017. ECF No. 13. The order of reference was reassigned to the undersigned on October 16, 2020.
Plaintiff Kevin G. Furey brings this action pursuant to 42 U.S.C. § 405(g), seeking judicial review of the final decision of Defendant Commissioner of Social Security (the “Commissioner”), which denied his application for disability insurance benefits (“DIB”). ECF No. 1. Plaintiff moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, and the Commissioner moved for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. ECF Nos. 11, 16. For the reasons that follow, I respectfully recommend that Plaintiff's motion (ECF No. 11) be DENIED, the Commissioner's motion (ECF No. 16) be GRANTED, and that judgment be entered in favor of the Commissioner.
BACKGROUND
I. Procedural Background
On November 16, 2013, Plaintiff filed for DIB, alleging May 23, 2013, as the onset date of his disability. Administrative Record (“AR”) 58; but see AR 146-47 (indicating that Plaintiff filed for DIB on November 18, 2013). Plaintiff claimed he was disabled due to bilateral knee, bilateral shoulder, and bilateral hip impairments; a lower back impairment; a herniated disc; carpal tunnel bilaterally in his hands; and rheumatoid arthritis. AR 59, 163. After the Social Security Administration (the “SSA” or “Agency”) denied his claim, AR 58, 91-99, Plaintiff requested a hearing before an administrative law judge (“ALJ”), AR 90, which was held on August 13, 2015, AR 31-57. On September 9, 2015, the ALJ issued a decision finding that Plaintiff was not disabled within the meaning of the Social Security Act (the “Act”) from the alleged onset date through the date of the decision. AR 9-26. Plaintiff subsequently filed a request for review of that decision with the SSA's Appeals Council, which was denied on December 14, 2016. AR 1-4, 7, 203-05. That made the ALJ's September 9, 2015, decision the final decision of the Commissioner. The instant lawsuit, seeking judicial review of the ALJ's decision, followed.
Citations to “AR” refer to the certified copy of the administrative record filed by the Commissioner. ECF No. 10.
Plaintiff filed an earlier application for DIB on January 30, 2010, in connection with a work-related injury that occurred on March 13, 2008. AR 69-86. On June 30, 2011, an ALJ denied that application, AR 72-80, and on May 21, 2012, the Appeals Council denied review of the ALJ's decision, AR 81-86. Although the 2010 application is not the subject of this case, some of the medical records related to that earlier injury are included in the administrative record for this matter.
II. Medical Evidence
A. Treating Sources
1. Westmed Medical Group
Dr. Michael Cushner and Dr. Jonathan Gordon, orthopedic surgeons affiliated with Westmed Medical Group (“Westmed”), treated Plaintiff for complaints of right shoulder, hip, and low back pain. AR 232-319, 321-43, 346-51, 358-88, 400-12, 441-44, 448-51, 455-57, 460-62, 465-66, 469-71, 474-76, 479, 482-84, 487-89, 492-94, 497-99, 515, 566-68, 570-88, 590-93.
On May 23, 2013, Plaintiff saw Dr. Cushner for an initial Workers' Compensation examination. AR 267-70 (duplicates at ¶ 368-71, 374-77, 400-03, 404-07, 408-11). Plaintiff stated that he had hurt his hips and right shoulder at work on March 5, 2013, but that he continued to work until May 21, 2013. AR 267. Upon examination, Plaintiff was able to elevate his right shoulder to 140 degrees. AR 267. Plaintiff had signs of shoulder impingement, but his right shoulder was stable. AR 267. Plaintiff was able to elevate his left shoulder to 175 degrees. AR 267. Plaintiff had some limitations in range of motion in his lumbar spine and tenderness in his posterior superior iliac spine. AR 267. He had tenderness with abduction of the trochanteric bursa. AR 267. Prior x-rays of the pelvis and lumbosacral spine showed degenerative changes but no evidence of acute fracture, dislocation, or lesion. AR 267. Dr. Cushner diagnosed Plaintiff with bilateral hip strain and right shoulder pain/internal derangement. AR 267. According to Dr. Cushner's report, Plaintiff was prescribed physical therapy as well as certain medications to treat pain, relieve symptoms of arthritis, and relax muscles. AR 249 (duplicates at ¶ 372, 378, 412), 267, 269-70.
Dr. Cushner's reference to shoulder elevation presumably refers to shoulder flexion, which is measured by having a patient hold his or her arms straight, with palms against the sides of the body, and then having the patient raise his or her arms to the highest point they can over the head. Normal range of motion for shoulder flexion is 180 degrees. See Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion (last visited 3/31/2021).
Shoulder impingement occurs when the rotator cuff, a group of muscles and tendons that attach the upper arm bone to the shoulder, “catches or rubs against” the acromion, a bone at the top of the shoulder. See Shoulder Impingement, Healthline, https://healthline.com/health/shoulderimpingementhht (last visited 3/31/2021).
The trochanteric bursa is the small, fluid-filled sac covering the bony point of the hip bone. Hip Bursitis, OrthoInfo, https://orthoinfo.aaos.org/en/diseases--conditions/hip-bursitis (last visited 3/30/2021).
Through the end of 2013, Dr. Cushner and Dr. Gordon regularly saw Plaintiff and kept him on medications, physical therapy (“PT”), and chiropractic care for his complaints of shoulder, hip, and back pain. AR 271-74, 279-82, 291-302, 311-19, 322-24, 334-43, 346-51, 358-88, 400-12. Upon physical examinations, Plaintiff was able to elevate his right shoulder from 125 to 140 degrees with no instability of the joint. AR 271, 279, 291, 295, 299, 311, 316, 323, 341, 347, 349. He continued to show signs of impingement in the right shoulder. AR 271, 279, 291, 295, 299, 311, 316, 323, 341, 347, 349. Plaintiff was able to elevate his left shoulder to 165 degrees or greater. AR 271, 279, 291, 295, 299, 311, 316, 323, 341, 347, 349. Plaintiff also had tenderness in his trapezius muscles, more so on the right than left, with movement of his neck. AR 271, 279, 291, 295, 299, 311, 316, 323, 341, 347, 349. He was able to flex forward in his lumbar spine from 45 to 50 degrees. AR 271, 280, 292, 295, 299, 311, 316, 323, 341, 347, 349. Plaintiff was able to flex his hips 100 degrees; internal and external rotation was limited due to pain. AR 272, 280, 292, 295, 299, 311, 316, 323, 341, 347, 349. Plaintiff continued to experience tenderness with abduction of his trochanteric bursa. AR 271, 280, 292, 295, 399, 311, 316, 323, 341, 347, 349.
The treatment records note that Plaintiff stopped receiving PT for his hips because it exacerbated his pain. See, e.g., AR 380. It is unclear from the medical records how long Plaintiff went for PT-there are only 10 pages of PT treatment records, and they appear to cover only two appointments in June 2013 and one appointment in July 2013. AR 413-22. By Plaintiff's October 16, 2013 office visit with Dr. Gordon, PT of the shoulders and/or lumbar spine is no longer listed as part of the treatment plan. See AR 482-84.
Some of these records are duplicate copies of one another, e.g., AR 271-74, 359-62, and 384-87 (duplicates of a medical record from a 6/25/2013 examination by Dr. Cushner); AR 358, 373, 388, 465, and 466 (duplicates of a medical note dated 7/8/2013 by Dr. Cushner); AR 316-19, 363-66, and 379-82 (duplicates of a medical record from a 6/13/2013 examination by Dr. Cushner), AR 322-24 and 566-68 (duplicates of a medical record from a 9/4/2013 examination by Dr. Gordon).
The normal range of motion for hips is 0 to 125 degrees for flexion (moving the thigh forward, towards the chest) and 0 to 45 degrees for both external rotation (putting the leg into a butterfly position) and internal rotation (curling the leg into the fetal position). What is Hip Range of Motion? Verywell Health, https://www.verywellhealth.com/hip-rom-5111354# (last visited 3/31/2021).
Dr. Cushner and Dr. Gordon reported that Plaintiff was out of work due to severe pain and discomfort and was “totally disabled due to his occupation.” AR 267, 272, 280, 292, 296, 300, 312, 317, 324 (duplicate at ¶ 568), 342, 348; see also AR 467-68, 472-73, 480-81, 485-86. They assessed a Workers' Compensation disability of 100 percent. AR 467-68, 472-73, 480-81, 485-86.
On October 22, 2013, an MRI of the right shoulder, ordered by Dr. Cushner, and performed by Dr. Michael Singer, showed supraspinatus tendinosis, a partial to full-thickness tear of the posterior fibers of the supraspinatus tendon proximal to the insertion, and a partial articular surface tear of the supraspinatus tendon at the insertion. AR 321 (duplicates at ¶ 329-30, 505-06). Following the MRI, at Plaintiff's next appointment with Dr. Cushner on November 5, 2013, they discussed the possibility of Plaintiff getting a right shoulder arthroscopy. See AR 487-89. Treatment notes for Plaintiff's final appointment with Dr. Cushner on September 18, 2014 state that Plaintiff “is waiting for approval for right shoulder arthroscopy, ” AR 460, but there is no indication that any shoulder surgery was ever performed.
“The supraspinatus muscle is a rotator cuff muscle located in the shoulder, specifically in the supraspinatus fossa, a concave depression in the rear portion of the scapula, or shoulder blade.” Supraspinatus, Healthline, https://www.healthline.com/human-body-maps/supraspinatus-muscle#1 (last visited 3/30/2021). Tendinosis, or tendonosis, is “a chronic condition involving deterioration of collagen (a structural protein) in the tendons” and is caused by “chronic overuse of a tendon.” Recognizing the Symptoms of Tendonosis, Healthline, https://www.healthline.com/health/tendonosis (last visited 3/30/2021).
Arthroscopy is “a surgical procedure orthopaedic surgeons use to visualize, diagnose, and treat problems inside a joint.” Arthroscopy, OrthInfo, https://orthoinfo.aaos.org/en/treatment/arthroscopy/ (last visited 3/30/2021).
On September 23, 2013, rheumatologist Dr. Harry Weinstein saw Plaintiff to evaluate his complaints of pain in all of his joints, and in particular his complaints of bilateral hand pain. AR 252-55 (duplicate at ¶ 325-28). Plaintiff had slight limitation of his shoulder movement and his trochanteric bursa and knees were tender. AR 254. AR 254. Dr. Weinstein listed the following diagnoses: carpal tunnel syndrome, mild trochanteric bursitis, pain in one or more joints (arthralgia), lumbar radiculopathy, which was worse on the right side, and shoulder pain. AR 254-55. He recommended that Plaintiff continue taking medication to relieve symptoms of arthritis. AR 255.
Although Dr. Weinstein's treatment note is ambiguous, it appears that these entries are intended to apply to both right and left upper and lower extremities. See AR 252 (noting “Troch bursitis of both hips, worse on Rt side”).
Plaintiff continued to see Dr. Cushner and Dr. Gordon periodically in 2014. AR 283-87, 331-33 (duplicates at 492-94, 583-85), 448-51, 455-57, 460-62. Findings at these appointments were similar to those reported in 2013, and Plaintiff was maintained on various medications, including medications to treat pain, relax muscles, and relieve symptoms of arthritis. AR 283-87, 331-33, 448-51, 455-57, 460-62. In addition, there was some tenderness in Plaintiff's right biceps groove, but biceps strength was “5/5.” AR 449, 456, 460. According to notes from some of these medical visits, as well as corresponding Workers' Compensation Progress Reports, Plaintiff was working again, with moderate limitations, and had a Workers' Compensation temporary impairment of 50 percent. AR 331-33 (examination notes for 1/9/2014) (duplicates at 492-94, 583-85), 446-47 (Workers' Compensation Progress Report based on 7/2/2014 examination), 448-51 (examination notes for 7/2/2014), 453-54 (Workers' Compensation Progress Report based on 8/21/2014 examination), 455-57 (examination notes for 8/21/2014), 458-59 (Workers' Compensation Progress Report based on 9/18/2014 examination), 460-62 (examination notes for 9/18/2014), 490-91 (Workers' Compensation Progress Report based on 1/9/2014 examination), 495-96 (Workers' Compensation Progress Report based on 5/5/2014 examination).
In addition, on May 5, 2014, physician's assistant (“PA”) Adam Barile examined Plaintiff for Worker's Compensation purposes and assessed a 50 percent temporary impairment based on bilateral hip strain, right shoulder injuries, and Lyme disease. AR 586-93 (duplicate of AR 586-88 is at AR 497-99). The findings in this examination were again similar to those reported in 2013 and in other examinations performed in 2014. AR 586-93. PA Barile noted that Plaintiff was working with a moderate disability. AR 591. On July 9, 2014, however, PA Cora Piselli made a note in the medical chart that Plaintiff was fully disabled and could not work from July 2, 2014 to September 1, 2014. AR 515.
2. Kenneth Blank, D.C.
From September 2013 through November 2014, Plaintiff received chiropractic treatment from Dr. Kenneth Blank. AR 208-30 (duplicates at ¶ 521-23, 525-47), 547-64. Upon initial evaluation, Dr. Blank reported findings of a deviated segment and subluxations of the lumbar spine. AR 208. There was moderate hypertonicity in the cervical and thoracic spines, severe hypertonic contraction in the lumbar paraspinal muscles bilaterally, and a complete spasm of the lumbar paraspinal muscles on the left side. AR 208. Plaintiff reported “exquisite” pain upon palpation of the lumbar spine. AR 208. Multiple tests designed to assess pain in the legs, hips, and associated joints were all reported as positive bilaterally. AR 208. Plaintiff reported severe pain with all shoulder movements. AR 208. Muscle strength was “+5/5” in the upper extremities and “+4/5” in the lower extremities. AR 208-09. There was decreased sensation to brush stroke in the L3-S1 dermatomes on the right. AR 209. Dr. Blank assessed segmental/somatic dysfunction in the lumbar/lumbosacral spine and neuritis or radiculitis in the thoracic spine. AR 209.
A subluxation is “a partial dislocation (as of one of the bones in a joint).” https://www.merriam-webster.com/dictionary/subluxation (last visited 3/30/2021).
Hypertonicity, or hypertonia, is “an unusual increase in muscle tension making stretching difficult or impossible.” https://www.thefreedictionary.com/hypertonia (last visited 3/30/2021).
Neuritis is “an inflammatory or degenerative lesion of a nerve marked especially by pain, sensory disturbances, and impaired or lost reflexes.” https://www.merriamwebster.com/dictionary/neuritis (last visited 3/30/2021).
Radiculitis is “inflammation of a nerve root.” https://www.merriamwebster.com/medical/radiculitis (last visited 3/30/2021).
Plaintiff saw Dr. Blank for treatment consisting of chiropractic adjustments, electrical muscle stimulation, range of motion exercise, and hydrotherapy. AR 208-30, 547-64. Dr. Blank's findings were largely unchanged over the course of Plaintiff's treatment, variously consisting of reports of hypertonicity, tightness, tension and/or spasm in the spine. AR 208-30, 547-64. Plaintiff reported periods of improvement as well as exacerbations or worsening of his symptoms. AR 208-30, 547-64.
On September 24, 2013, a lumbar MRI ordered by Dr. Blank showed straightening of the lumbar lordosis, which could have represented muscular spasm; bilateral lateral recess narrowing at the L4-L5 level secondary to a broad disc bulge, dorsal bony ridge complex, and bilateral facet hypertrophy; and a L5-S1 central disc herniation and central annular fissure, which was causing compression on the thecal sac and the descending left L5 nerve root and bilateral lateral recess narrowing. AR 390-91 (duplicates at ¶ 392-93, 512-13). Dr. Blank completed Workers' Compensation Progress Reports assessing a 100 percent temporary impairment. AR 428-29 (duplicate at ¶ 434-35), 430-33, 517-20.
3. Dr. Michael Singer
In October 2013 and January 2014, Dr. Michael Singer, who performed the MRIs on Plaintiff's right shoulder and lumbar spine, completed Workers' Compensation reports stating that Plaintiff could not work due to his right shoulder pain and his lower back pain. AR 501-04, 508-11.
B. Consultative/Independent Medical Examiners
1. Dr. Richard Semble
In connection with an earlier work-related injury that Plaintiff sustained on March 13, 2008, see footnote 4, supra, Dr. Richard Semble performed a Workers' Compensation independent orthopedic examination on February 15, 2012, in which he noted that Plaintiff had no significant complaints regarding his right shoulder or right knee. AR 353. At that time, Plaintiff related difficulty squatting, but denied any difficulty walking. AR 353. Plaintiff's range of motion of the right knee was normal, and he had excellent strength in flexion and extension. AR 353. Dr. Semble did note some generalized anterior pain of the right knee. AR 353. Plaintiff also had diffuse tenderness along the anterior aspect of his left shoulder, and had active forward flexion of his shoulder to 90 degrees, and active abduction to 100 degrees, with pain at the extreme end of motion in both instances. AR 353. Nevertheless, he had “5/5” strength in both forward flexion and abduction of his left shoulder, though Plaintiff's external rotation of the left shoulder was limited to 60 degrees bilaterally. AR 353. Dr. Semble opined that Plaintiff would be unable to perform work that required vigorous use of the left arm overhead, but that he could work in a position that did not require overhead lifting. AR 354. He further opined that Plaintiff had reached maximum medical improvement and had “ a permanency with regards to the left shoulder rotator cuff tear; 40%; inclusive of rotator cuff tear & loss of range of motion.” AR 354.
The normal range of motion for shoulder abduction, which is measured by having a patient raise his or her arm out from the side of the body, starting with the palm against the side of the body, is 150 degrees, which places the hand above the head with the arm straight. Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion (last visited 3/31/2021).
The normal range of motion for external rotation of the shoulder is 90 degrees. Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion (last visited 3/31/2021).
Dr. Semble re-evaluated Plaintiff on December 11, 2013 to address his prior right knee and left shoulder injuries of March 13, 2008, as well as his March 5, 2013 right shoulder injury. AR 355-57. Plaintiff reported that after the right shoulder injury, he “was out of work and then again returned to work until November [2013].” AR 355. Dr. Semble noted that Plaintiff had been told that he needed a repeat operation on his right shoulder. AR 356. According to Plaintiff, he had not re-injured either his left shoulder or his right knee on March 5, 2013. AR 356. With regard to Plaintiff's right knee, there was no effusion, synovitis, or synovial thickening; there was 0 to 150 degrees of motion with no instability to valgus or varus stress; and there was no joint line tenderness. AR 356. Dr. Semble noted that the “7.5% loss [to the right knee] as previously suggested remains the same.” AR 356. Examination of the left shoulder indicated generalized rotator cuff atrophy. AR 356. Plaintiff again had 90 degrees of forward flexion and 100 degrees of active abduction of his left shoulder, and again had “5/5” strength in forward flexion and abduction. AR 356. Dr. Semble noted that his prior estimate of 40 percent loss to the left shoulder remained. AR 356. With respect to Plaintiff's right shoulder, Dr. Semble stated, “as there has been an intervening injury, I have no way of determining whether there would be any change with regards to [Plaintiff's] initial schedule loss [of 0]” in connection with the March 13, 2008 injury claim. AR 356. Still, as to the right shoulder, he noted that “[c]learly there is a worsening condition when compared to the previous examination . . . attributable to the injury of 3/5/13 . . . .” AR 356.
2. Dr. Marc Berezin
On October 18, 2013, orthopedic surgeon Dr. Marc Berezin performed a Workers' Compensation independent medical examination. AR 394-97. He noted that Plaintiff complained of constant back pain, pain when going from a sitting to standing position and when trying to get into and out of a car, and pain when standing and sitting. AR 395. Plaintiff reported that he was unable to sleep more than one hour and had pain running down his right leg to his foot. AR 395. Plaintiff complained of right knee clicking and pain when squatting. AR 395. He also reported right-sided groin and hip pain, complained of neck pain and stiffness, and described pain with lifting and with activity. AR 395. In addition, Plaintiff reported left shoulder pain and stiffness from a prior injury, which had increased. AR 395. Plaintiff had been prescribed pain medication but stated that he preferred not to take it. AR 395. Dr. Berezin noted that after Plaintiff's injury on March 5, 2013, Plaintiff continued to work until May 23, 2013, but that he was not working at the time of the examination. AR 395. According to Plaintiff, he had no complaints regarding his right shoulder, back, hip, or right knee prior to the March 5, 2013 accident at work. AR 395.
This is in contrast to Dr. Semble's report of December 11, 2013, which noted that after the March 5, 2013 injury, Plaintiff continued to work until November 2013. AR 355.
Upon examination, Plaintiff ambulated independently with a non-antalgic gait. AR 396. Plaintiff had cervical and lumbar tenderness, but no spasm. AR 396. In the cervical spine, Plaintiff's range of motion for forward flexion (dropping the chin to the chest) was normal, though he had some limitations in range of motion for extension (dropping the head back) and lateral rotation. AR 396. There were no motor or sensory deficits in the upper or lower extremities. AR 396. Reflexes were intact and equal in both the upper and lower extremities, and there was no muscle atrophy in the upper extremities. AR 396. Plaintiff had low back pain with straight leg raising, and hip range of motion was limited due to back pain. AR 396. In both shoulders, Plaintiff had tenderness anteriorly; forward flexion to 90 degrees; internal rotation to the lower lumbar spine; external rotation to the neck; adduction to 45 degrees; extension to 45 degrees; pain with abduction; and positive impingement signs. AR 396.
The normal range of motion for shoulder adduction (moving the arms toward the middle of the body) is 30 to 50 degrees, and the normal range of motion for shoulder extension (starting with the palms next to the body and lifting the arms to the highest point behind the back) is between 45 and 60 degrees. Understanding the Normal Shoulder Range of Motion, Healthline, https://www.healthline.com/health/shoulder-range-of-motion (last visited 3/31/2021).
Dr. Berezin noted that Plaintiff had “diffuse body complaints with preexisting conditions to his right shoulder and hack, ” but he could not “causally relate” Plaintiff's “current complaints” to a work- related accident on March 5, 2013, because there was no medical documentation in the immediate aftermath of that injury. AR 396. Thus, he declined to provide a medical opinion regarding the extent of Plaintiff's limitations resulting from the March 5, 2013 accident. AR 396.
3. Dr. Richard Goccia
On February 4, 2014, Dr. Richard Goccia conducted an orthopedic examination at the request of the SSA. AR 423-26. Plaintiff reported that in March 2013 he suffered work-related injuries to his back and right shoulder; that he was diagnosed with three herniated discs in his lower back and was being evaluated for surgery; that he had rotator cuff repairs in both of his shoulders; that his hips were sore because of the herniated discs in his lower back; and that his shoulder discomfort radiated into the right side of his neck. AR 423. Plaintiff reported taking narcotics and anti-inflammatory medications, which had some effect. AR 423. Plaintiff reported a history of surgical procedures on both knees and diagnoses of osteoarthritis and rheumatoid arthritis, which primarily affected his hands and fingers. AR 423. With respect to activities of daily living, Plaintiff stated that his girlfriend, with whom he lived, did the cooking, cleaning, laundry, and shopping. AR 424. Plaintiff stated that he showered and dressed himself and that he had last worked three weeks prior to the examination. AR 424.
Upon physical examination, Plaintiff appeared to be in no acute distress; he had a normal gait and station; he did not need an assistive device; he was able to change for the examination and get on and off the examination table without assistance; and he was able to rise from a chair without difficulty. AR 424. He declined to try to squat, but he could walk on his heels and toes without difficulty. AR 424. Dr. Goccia found full ranges of motion in the cervical spine, and no pain, spasm, or trigger points. AR 425. In Plaintiff's thoracic and lumbar spine, he had flexion to 60 degrees, full extension, lateral flexion bilaterally, and rotary movements bilaterally; there was no tenderness or spasm; no scoliosis or kyphosis; no trigger points; and straight leg raising was negative bilaterally. AR 425. In the upper extremities, Plaintiff had limited forward flexion of the shoulders to 90 degrees and otherwise full ranges of motion. AR 425. In the upper and lower extremities, muscle strength was 5/5; there was no muscle atrophy or sensory abnormality; and reflexes were physiologic and equal. AR 425. Also in his upper extremities, Plaintiff's shoulders had forward elevation to 90 degrees; he had full range of motion of his elbows, forearms, wrists, and fingers bilaterally; and he had no joint inflammation, effusion, or instability. AR 425. In his lower extremities, Plaintiff had full range of motion in his hips. knees, and ankles bilaterally, and he had no joint effusion, inflammation, or instability. AR 425.
Dr. Goccia diagnosed low back pain, right shoulder pain, bilateral hip pain, neck pain, right knee swelling, and rheumatoid arthritis by history. AR 425. He found that Plaintiff's prognosis was fair. AR 425. He opined that Plaintiff was “mildly limited for activities which require[ ] squatting and working overhead.” AR 425.
III. Other Evidence
A. Agency Forms
On January 30, 2014, Plaintiff completed a “Function Report, ” AR 171-81. In it, Plaintiff reported that his injuries interfered with his sleep due to pain, but he denied having any problems with his personal care. AR 172. He stated that he prepared microwaveable foods on a daily basis but that his girlfriend did most of the cooking because he was not able to stand up for long periods of time; he also indicated that he did light dusting, cleaning, and laundry, but that he needed his girlfriend's help for these tasks. AR 173-74. Plaintiff reported that he went outside daily and traveled by riding in a car, but that he could not go out alone. AR 174. He went shopping on a monthly basis. AR 175. He read on a daily basis but was not physically active due to his injuries. AR 175. Plaintiff reported seeing friends on a daily basis and going to the doctor's office and seeing his mother three times each week. AR 176.
Plaintiff was asked to explain any effect that his injuries had on his abilities with respect to sitting, climbing stairs, kneeling, squatting, reaching, and using his hands, but he did not list any. AR 177. He stated that he was able to do “minimal” lifting. AR 176. Asked to explain how his injuries affected his abilities with respect to standing and walking, he responded, “Yes.” AR 176.
Plaintiff reported that he used a cane, but that it was not prescribed by a doctor. AR 177-78. He stated that he could walk for 10-15 minutes before needing to stop and rest and that he then needed to rest for 5-10 minutes before walking again. AR 178. Plaintiff reported that he first started having pain in March 2013 and that the pain began to affect his activities in May 2013. AR 179. He stated that on a daily basis, he experienced stabbing pain in his lower back and hips that radiated into his neck and hips. AR 179-80. Plaintiff reported that since June 2013, he was taking multiple medications on a daily or as needed basis without experiencing any side effects. AR 180-81. Plaintiff said that stretching also relieved his pain. AR 181.
B. Hearing Testimony
An administrative hearing was held before ALJ Vincent M. Cascio on August 13, 2015. AR 31-57. Plaintiff was 52 years old at the time of the hearing, which he attended with his attorney. AR 35, 37. Plaintiff testified that he had a general equivalency diploma (GED). AR 38. He testified that he had been employed as an ironworker and that he had last worked in July 2015, on a job that lasted five and a half weeks; according to Plaintiff, because of the pain in his back, he missed work one day each week, maybe left early, and never worked overtime, and eventually was laid off. AR 38, 45. Plaintiff testified that he was able to do the job because his friends “were carrying me” and “they were taking it easy on me.” AR 42, 45. Plaintiff said that on the job he was lifting pieces that weighed only three to five pounds, “nothing strenuous.” AR 46. He stated that prior to this period of employment, the last time he had worked was in 2013. AR 38-39. However, after the ALJ referred Plaintiff to earnings records and medical record entries that documented work activity in 2014, Plaintiff acknowledged working for several weeks in 2014. AR 52-55.
Plaintiff testified that he lived with his girlfriend. AR 37. He stated that he was able to drive and drove to the hearing, and that he also drove into New York City from Rockland County for work, though he had trouble getting out of his car after driving, followed by trouble walking once he got out of the car. AR 37, 39. Plaintiff testified that he was no longer working because of back pain, there was no light duty work in his field of ironwork, and he was “computer illiterate.” AR 39-40, 43.
Plaintiff testified that he had been, but was no longer, taking pain medication. AR 41. He estimated that he could walk a quarter of a mile before he had to stop because of pain in his hips and lower back. AR 41. He testified to having discomfort sitting at the hearing after about 15 to 20 minutes, and that after driving to the hearing for 40 minutes, he could not get out of his car. AR 41-42. Plaintiff stated that if he stood in one spot for 20 minutes, his knees went numb and that he had bad arthritis in both knees. AR 42, 46. He said he could lift 10 to 15 pounds. AR 42. Plaintiff testified that he had hip problems when going up and down stairs. AR 42. He said that doctors had diagnosed him with arthritis and impingements in his hips as well as arthritis in his hands. AR 42. He said that he could not lift either of his arms over his head, especially his right arm, but he could write his name and make a fist with either hand, just “not too tight.” AR 43. When asked by his counsel why there was a gap in his medical records from almost a year before the hearing, Plaintiff responded that it was for financial reasons, that “every time I go it's $150 and he's telling me the same thing and then handing me a jar of pills . . . . I don't have the money to do it.” AR 46.
In terms of activities of daily living, Plaintiff testified that he could shower and dress himself but that he did not really cook and did “very little” shopping. AR 43-44. He said that he did not do housework or laundry, and that his girlfriend did it instead. AR 44. Plaintiff testified that he ate out (got takeout food); watched television, although not much because sitting around hurt; and read the newspaper. AR 44.
Vocational expert Josiah Pearson testified at the administrative hearing. AR 47-52. The ALJ asked Mr. Pearson to hypothetically consider an individual of Plaintiff's age, education, and work experience, who could perform a full range of light work but who could only occasionally climb ramps and stairs; occasionally balance, stoop, and crouch; and occasionally reach, including overhead reaching with the right upper extremity, but who could never crawl, kneel, or climb ladders, scaffolds, or ropes, and had to avoid unprotected heights and hazardous machinery. AR 49. Mr. Pearson opined that such an individual would be able to perform three jobs from the United States Department of Labor's Dictionary of Occupational Titles involving light, unskilled work: (1) furniture rental consultant (50, 808 jobs nationally); (2) counter clerk (22, 744 jobs nationally); and (3) usher (19, 389 jobs nationally). AR 49-50.
Upon being questioned by Plaintiff's attorney, Mr. Pearson testified that there would be no jobs available for this hypothetical individual if he or she had to take off from work one day a week or had to be “off task” for 20 percent of the work day. AR 51-52.
APPLICABLE LEGAL PRINCIPLES
I. Standard of Review
The scope of review in an appeal from a Social Security disability determination involves two levels of inquiry. First, the court must review the Commissioner's decision to determine whether the Commissioner applied the correct legal standards when determining that the plaintiff was not disabled. Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). “Failure to apply the correct legal standards is grounds for reversal.” Pollard v. Halter, 377 F.3d 183, 189 (2d Cir. 2004) (quoting Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984)) (internal quotation marks omitted).
Second, the court must decide whether the Commissioner's decision was supported by substantial evidence. Green-Younger v. Barnhart, 335 F.3d 99, 105-06 (2d Cir. 2003). “Substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Id. at 106 (internal quotation marks and citations omitted). When determining whether substantial evidence supports the Commissioner's decision, it is important that the court “carefully consider[] the whole record, examining evidence from both sides.” Tejada, 167 F.3d at 774 (citing Quinones v. Chater, 117 F.3d 29, 33 (2d Cir. 1997)). “It is not the function of a reviewing court to decide de novo whether a claimant was disabled.” Melville v. Apfel, 198 F.3d 45, 52 (2d Cir. 1999) (citation omitted). If the “decision rests on adequate findings supported by evidence having rational probative force, [the court] will not substitute [its own] judgment for that of the Commissioner.” Veino v. Barnhart, 312 F.3d 578, 586 (2d Cir. 2002).
II. Determining Disability
The Act defines the term “disability” as the “inability to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than twelve months.” 42 U.S.C. § 423(d)(1)(A). An individual is disabled under the Act if he or she suffers from an impairment which is “of such severity that he [or she] is not only unable to do his [or her] previous work but cannot . . . engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A). “ʻ[W]ork which exists in the national economy' means work which exists in significant numbers either in the region where such individual lives or in several regions of the country.” Id.
Regulations issued pursuant to the Act set forth a five-step process that the Commissioner must follow in determining whether a particular claimant is disabled. The Commissioner first considers whether the claimant is engaged in “substantial gainful activity.” 20 C.F.R. §§ 404.1520(a)(4)(i), (b). If the claimant is so engaged, then the Commissioner will find that the claimant is not disabled; if the claimant is not performing substantial gainful activity, then the Commissioner proceeds to the second step. Id. At step two, the Commissioner determines the medical severity of the claimant's impairments. 20 C.F.R. § 404.1520(a)(4)(ii). A severe impairment is “any impairment or combination of impairments which significantly limits [the claimant's] physical or mental ability to do basic work activities.” 20 C.F.R. § 404.1520(c). If the claimant suffers from any severe impairment, the Commissioner, now at step three, must decide if the impairment meets or equals a listed impairment; listed impairments are presumed severe enough to render an individual disabled, and the criteria for each listing are found in Appendix 1 to Part 404, Subpart P of Social Security regulations. 20 C.F.R § 404.1520(a)(4)(iii), (d).
If the claimant's impairments do not satisfy the criteria of a listed impairment at step three, the Commissioner must then determine the claimant's residual functional capacity (“RFC”). 20 C.F.R. § 404.1520(e). A claimant's RFC represents “the most [he or she] can still do despite [his or her] limitations.” 20 C.F.R. § 404.1545(a)(1). After determining the claimant's RFC, the Commissioner proceeds to the fourth step to determine whether the claimant can perform his or her past relevant work. 20 C.F.R. § 404.1520(a)(4)(iv), (e)-(f). If the claimant cannot perform his or her past relevant work, the Commissioner proceeds to step five to consider the claimant's RFC, age, education, and work experience to determine whether he or she can adjust to other work. 20 C.F.R. § 404.1520(a)(4)(v), (g).
The claimant bears the burden of proof on the first four steps of this analysis. DeChirico v. Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998). If the ALJ concludes at an early step that the claimant is not disabled, he or she need not proceed with the remaining steps. Williams v. Apfel, 204 F.3d 48, 49 (2d Cir. 2000). If the fifth step is necessary, the burden shifts to the Commissioner to show that the claimant is capable of performing other work. DeChirico, 134 F.3d at 1180 (citation omitted).
DISCUSSION
Presently before the Court are Plaintiff's motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure and the Commissioner's motion for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. As discussed below, the Court finds that the Commissioner's decision was supported by substantial evidence, and therefore respectfully recommends that Plaintiff's motion be denied, the Commissioner's motion be granted, and that judgment be entered in favor of the Commissioner.
I. The ALJ's Decision
The ALJ employed the five-step analysis described above and issued a decision finding that Plaintiff was not disabled from the alleged onset date of May 23, 2013, through the date of the decision, September 9, 2015. AR 12-26. At the first step of the sequential analysis, the ALJ found that Plaintiff had not engaged in substantial gainful activity since the alleged onset date. AR 14. At the second step, the ALJ determined that Plaintiff had the severe impairments of “L4-5 disc bulge; L5-S disc herniation; right shoulder supraspinatus full thickness tear; mild degenerative joint disease of the bilateral hips; status post right knee surgery (3 times); status left knee surgery (2 times) and bilateral shoulder surgeries.” AR 14. At the third step, the ALJ determined that none of Plaintiff's impairments or any combination of impairments met or medically equaled the severity of a listed impairment found in 20 C.F.R. Part 404, Subpart P, Appendix 1. AR 15-16.
The ALJ noted that Plaintiff alleged a history of Lyme disease, early Dupuytren's contractures in both of his palms, carpal tunnel syndrome, and asthma, but he found that these conditions were nonsevere. AR 15. Plaintiff has not specifically contested those findings as part of his submissions in this matter.
According to the ALJ, Plaintiff retained the RFC to perform light work, as defined in 20 C.F.R. § 404.1567(b), with the exceptions that he could only occasionally climb stairs and ramps; only occasionally balance, stoop, and crouch; only occasionally reach, including overhead reaching with his right upper extremity; could never crawl, kneel, or climb ladders, scaffolds, and ropes; and had to avoid unprotected heights and machinery. AR 16.
“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.” 20 C.F.R. § 404.1567(b).
The ALJ determined Plaintiff's RFC by applying the two-step framework described in 20 C.F.R. § 404.1529. AR 16. The ALJ provided an extensive summary of the evidence in the record, including Plaintiff's statements about his symptoms and activities of daily living as well as the medical records. AR 17-22. The ALJ evaluated Plaintiff's credibility and found “several reasons why the claimant's allegations of debilitating symptoms[] should be deemed to be not wholly credible.” AR 22. In so doing, the ALJ considered Plaintiff's statements about his daily activities, which were “not limited to the extent one would expect, given the complaints of disabling symptoms and limitations”; treatment notes indicating that Plaintiff reported only mild to moderate pain; medical evidence of no muscle atrophy; medical opinion evidence showing only mild limitations; and Plaintiff's “relatively healthy” appearance at the hearing. AR 22-23. The ALJ noted that Plaintiff provided inaccurate information regarding whether he had worked between his alleged onset date of May 23, 2013, and July 2015, which “suggests that much of what the claimant has alleged may be similarly unreliable.” AR 23. The ALJ then cited the medical evidence in the record, noting that Plaintiff's medical treatment “has been essentially routine.” AR 23.
The ALJ specified that the first step in this process is to determine “whether there is an underlying medically determinable physical or mental impairment(s)-i.e., an impairment(s) that can be shown by medically acceptable clinical and laboratory diagnostic techniques-that could reasonably be expected to produce the claimant's pain or other symptoms.” AR 16. While the ALJ did not make an express finding regarding an underlying medically determinable impairment, the ALJ's decision to focus on the second step of the analysis makes clear that he implicitly concluded that Plaintiff satisfied this first requirement. The ensuing discussion of the evidence in this section of the ALJ's decision addresses the second step of the analysis, namely, that “once an underlying physical or mental impairment(s) that could reasonably be expected to produce the claimant's pain or other symptoms has been shown, [the ALJ] must evaluate the intensity, persistence, and limiting effects of the claimant's symptoms to determine the extent to which they limit the claimant's functioning, ” and “whenever statements about the intensity, persistence, or functionally limiting effects of pain or other symptoms are not substantiated by objective medical evidence, the [ALJ] must make a finding on the credibility of the statements based on a consideration of the entire case record.” AR 16.
With respect to the medical records, the ALJ stated that although his decision did not discuss in detail every single progress note from the extensive medical record, “each note, and the subjective allegations and clinical findings contained within, ha[ve] been considered in making this decision, even if not expressly summarized in this decision.” AR 17.
In weighing the medical evidence, the ALJ noted that “the record does not contain any non-conclusory opinions, which are supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant is currently disabled.” AR 23. The ALJ gave “little weight” to the opinions of Plaintiff's treating physicians, Drs. Cushner and Gordon, other examining physicians, including Drs. Singer and Semble, and physician assistants Barile and Piselli, “as their opinions were rendered for a different government program with different standards, ” i.e., Workers' Compensation, and “their opinions are inconsistent with the medical examinations, which were generally benign.” AR 23. As the ALJ noted, “the claimant was working as an iron worker when many of the opinions expressed that he was totally disabled.” AR 23. “Little weight” was also given to the opinion of Dr. Blank, Plaintiff's treating chiropractor, since he was “not an acceptable medical source”; his opinion was “rendered for a different government program with different standards”; and his opinion was “inconsistent with the medical examinations, which were generally benign.” AR 23.
In contrast, the ALJ gave “great weight” to the opinion of consultative medical examiner Dr. Goccia, because the opinion was consistent with Dr. Goccia's findings as well as findings from the examinations by Drs. Semble and Berezin. AR 23. The ALJ found that Dr. Goccia's opinion supported the RFC determination. AR 23.
Citing agency policy, the ALJ gave “no weight” to the RFC determination made by a State agency Single Decision Maker, or SDM (AR 59-68). See AR 23-24. “SDMs are non-physician disability examiners who may make the initial disability determination in most cases without requiring the signature of a medical consultant.” Rivera v. Comm'r of Soc. Sec., 394 F.Supp.3d 486, 494-95 (S.D.N.Y. 2019) (internal quotation marks and citation omitted). “As of May 2010, ALJs have been instructed that RFC determinations by SDMs should not be afforded any evidentiary weight at the administrative hearing level.” Id. at 495 (internal quotation marks and citation omitted).
At the fourth step, citing the hearing testimony of the vocational expert, the ALJ found that Plaintiff was unable to perform his past relevant work as an ironworker, which was heavy in exertional level and skilled. AR 24.
At the fifth step, the ALJ noted that if Plaintiff “had the residual functional capacity to perform the full range of light work, a finding of ‘not disabled' would be directed by Medical-Vocational Rule 202.14.” AR 25. But the ALJ concluded that Plaintiff's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” AR 25. Thus, “[t]o determine the extent to which these limitations erode the unskilled light occupational base, the [ALJ] asked the vocational expert whether jobs exist in the national economy for an individual with [Plaintiff's] age, education, work experience, and residual functional capacity.” AR 25. The vocational expert determined Plaintiff could perform the light, unskilled jobs of (1) furniture rental consultant (50, 808 jobs nationally); (2) counter clerk (22, 744 jobs nationally); and (3) usher (19, 389 jobs nationally). AR 25. Relying upon the vocational expert's testimony, the ALJ found that Plaintiff could adjust to other work that existed in significant numbers in the national economy. AR 25-26. The ALJ therefore concluded that Plaintiff was not disabled from the alleged onset date, May 23, 2013, through the date of the decision, September 9, 2015. AR 26.
II. The ALJ's RFC Determination and Evaluation of Medical Opinion Evidence
Plaintiff seeks to reverse the Commissioner's decision and enter judgment in his favor, or remand the matter to the Agency for further administrative proceedings. He contends that (1) the ALJ's decision is not supported by substantial evidence; and (2) the ALJ improperly evaluated the medical opinion evidence. ECF No. 12 (“Pl.'s Mem.”). Plaintiff asserts that the ALJ's decision is not supported by substantial evidence because “the totality of the evidence” supports a finding that Plaintiff's RFC “was limited to at the most sedentary work for this entire period.” Pl.'s Mem. at 6. Plaintiff then proceeds to merely recite the medical record evidence that he believes supports this conclusion. See id. at 6-12. Further, Plaintiff asserts that the ALJ “failed to indicate why he discounted the totality of the opinions rendered by [his] treating physicians, and created an RFC that is without support in the file.” Id. at 12. In other words, Plaintiff argues that the ALJ failed to apply the proper legal standard to his consideration of the medical opinion evidence. Id. at 12-14.
The Commissioner seeks to have his final decision affirmed, and maintains that the ALJ's decision is supported by substantial evidence and is based upon the application of correct legal standards. ECF No. 17 (“Def.'s Mem.”) at 16-20.
As a general matter, an ALJ is directed to consider “every medical opinion” in the record, regardless of its source. 20 C.F.R. § 404.1527(c). Yet not every medical opinion is assigned the same weight. Under Social Security regulations, the opinions of a treating source as to the nature and severity of a claimant's impairments are generally, but not always, entitled to “more weight” relative to those from other treatment providers. See id. at § 404.1527(c)(2); Diaz v. Shalala, 59 F.3d 307, 313 (2d Cir. 1995). Such opinions are given controlling weight if they are “well-supported by medically acceptable clinical and laboratory diagnostic techniques and [are] not inconsistent with the other substantial evidence” in the record. 20 C.F.R. § 404.1527(c)(2); Rugless v. Comm'r of Soc. Sec., 548 Fed.Appx. 698, 700 (2d Cir. 2013) (summary order). Conversely, opinions from treating sources “need not be given controlling weight where they are contradicted by other substantial evidence in the record.” Veino, 312 F.3d at 588; Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004) (a treating source opinion is not afforded controlling weight if it is “not consistent with other substantial evidence in the record, such as the opinions of other medical experts.”).
In the event that a treating source's opinion is not given controlling weight, the ALJ must still consider various factors to determine the appropriate amount of deference to assign to that opinion. These factors include: (i) the length of the treatment relationship and the frequency of examination; (ii) the nature and extent of the treatment relationship; (iii) the extent to which the medical source provides relevant evidence to support an opinion; (iv) the extent to which the opinion is consistent with the record as a whole; (v) whether the opinion is given by a specialist; and (vi) other factors which may be brought to the attention of the ALJ. 20 C.F.R. § 404.1527(c)(2)(i)-(ii), (c)(3)-(c)(6). The ALJ need not provide a “slavish recitation of each and every factor where the ALJ's reasoning and adherence to the regulation are clear.” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013) (summary order); see also Martinez-Paulino v. Astrue, No. 11 Civ. 5485 (RPP), 2012 WL 3564140, at *16 (S.D.N.Y. Aug. 20, 2012) (“It is not necessary that the ALJ recite each factor explicitly, only that the decision reflects application of the substance of the rule.”) (citing Halloran, 362 F.3d at 32). Nonetheless, the Commissioner must “always give good reasons in [his or her] notice of determination or decision for the weight [he or she] give[s] [a claimant]'s treating source's medical opinion.” 20 C.F.R. § 404.1527(c)(2). “Failure to provide ‘good reasons' for not crediting the opinion of a claimant's treating physician is a ground for remand.” Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) (citation omitted). Certain findings, however, such as whether a claimant is disabled, are reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1).
This citation is to the version of the treating source rule applicable to DIB claims filed before March 27, 2017. Plaintiff filed for DIB on November 16, 2013; accordingly, this version of the treating source rule is the applicable standard for this matter.
Plaintiff argues that the ALJ “improperly disregarded the credible medical evidence of [his] treating physicians, ” and failed to “properly explain why [the ALJ] discounted the opinions of [Plaintiff's] treating physicians at Westmed except for a general statement in his decision.” Pl.'s Mem. at 13-14. This Court disagrees, and finds that the ALJ did not err in applying the treating source rule in this case. A reading of the ALJ's decision in its entirety makes clear that the ALJ properly considered the opinions of Plaintiff's treating sources, including his Westmed treating physicians, Drs. Cushner and Gordon, but did not afford controlling weight to these opinions due to their inconsistencies with other substantial evidence in the record. 20 C.F.R. § 404.1527(c)(2); see also Cohen v. Comm'r of Soc. Sec., 643 Fed.Appx. 51, 53 (2d Cir. 2016) (summary order) (“The Commissioner retains the discretion to reach a conclusion inconsistent with an opinion of a treating physician where that conclusion is supported by sufficient contradictory evidence.”); Snell, 177 F.3d at 133 (“When other substantial evidence in the record conflicts with the treating physician's opinion, . . . that opinion will not be deemed controlling.”).
To begin, the ALJ stated that “the record does not contain any non-conclusory opinions, which are supported by clinical or laboratory evidence, from treating or examining physicians indicating that the claimant is currently disabled.” AR 23. It is appropriate for an ALJ to afford less weight to an opinion that is not thoroughly explained or supported by objective medical evidence. See 20 C.F.R. § 404.1527(c)(3) (explaining that the degree of weight given to a medical opinion is affected by the amount of medical evidence and the quality of the explanation supporting the opinion).
The ALJ thereafter explained that he gave “little weight” to the treating source opinions because they “were rendered for a different government program with different standards, [and that] the definition of disability in a workers' compensation case is not the same as a Social Security disability case.” AR 23. Indeed, the ALJ was not bound to give these opinions controlling weight because, as the ALJ stated, “[w]orkers' compensation cases look only at the claimant's ability to return to the job being performed at the time of injury.” AR 23; see DiPalma v. Colvin, 951 F.Supp.2d 555, 574 (S.D.N.Y. 2013) (in the context of workers' compensation, “disability is defined as the inability to return to past relevant work”) (collecting cases); see also Brodie v. Comm'r of Soc. Sec., No. 19 Civ. 6968 (PAE) (RWL), 2020 WL 5754607, at *7 (S.D.N.Y. Aug. 25, 2020) (“[W]orkers' compensation and social security disability benefits are governed by different standards, and the opinion provided in a workers' compensation claim is not controlling with respect to a claim of disability claim under the Act.”) (internal quotation marks, ellipsis, and citations omitted), adopted sub nom. Brodie v. Saul, 2020 WL 5775234 (S.D.N.Y. Sept. 28, 2020). Moreover, as noted above, and as noted by the ALJ, see AR 23, the determination of whether Plaintiff is disabled is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(1).
Additionally, the ALJ gave “little weight” to the opinions of Plaintiff's treating sources because they were “inconsistent with the medical examinations, which were generally benign”; as noted by the ALJ, Plaintiff “was working as an iron worker when many of the opinions expressed that he was totally disabled.” AR 23. In discussing the medical evidence in the record, the ALJ noted that Dr. Cushner's reports from appointments with Plaintiff in May, June, July, and November 2013 all stated that Plaintiff had a 100 percent temporary disability and was totally disabled due to his occupation of ironworker. But as the ALJ further highlighted, Dr. Cushner reported in January 2014 that Plaintiff said he had gone back to work as an ironworker and found that Plaintiff had only a “moderate disability, ” and again reported on May 5, 2014, that Plaintiff was working and had only “moderate limitations.” AR 18; see AR 279-82, 283-87, 331-33, 368-71, 379-82, 384-88, 586-88. Similarly, the ALJ noted that Dr. Gordon examined Plaintiff in September and October 2013, and on both occasions, Dr. Gordon stated that Plaintiff was totally disabled, AR 18; see AR 311-15, 577-79. Yet Dr. Gordon's report from his examination of Plaintiff on July 2, 2014, noted that Plaintiff had returned to work and had been working even though he had right shoulder pain, and that Plaintiff had only a 50 percent temporary impairment. AR 22; see AR 448-51.
There are two reports related to Plaintiff's appointment with Dr. Cushner on January 9, 2014. One of the reports states that Plaintiff went back to work and has “moderate” limitations, “moderate disability, ” and 50 percent temporary impairment. AR 331-33. The second report, which lists the provider as “Cushner PA, ” states on one page that Plaintiff is “currently out of work” and “totally disabled due to his occupation, ” but on the next page states that Plaintiff has a 50 percent temporary impairment, answers “yes” to the question of whether Plaintiff is currently working, and notes that Plaintiff's limitations are “moderate.” AR 283-87.
The treatment note for May 5, 2014 that the ALJ attributed to Dr. Cushner appears to be a treatment note for an appointment that Plaintiff had with PA Barile, who worked with Dr. Cushner. See AR 586-88; see also AR 590-93 (report from May 5, 2014 appointment with PA Barile). A Workers' Compensation Progress Report submitted by Dr. Cushner based on the May 5, 2014 examination likewise notes that Plaintiff was working and had “moderate” limitations and a 50 percent temporary impairment. See AR 495-96.
The ALJ likewise noted that Plaintiff's chiropractor, Dr. Blank, examined Plaintiff on September 8, 2013, and reported at that time that Plaintiff had a “100% temporary impairment, ” but then reported on January 24, 2014, that Plaintiff said he had been “working full duty work as a construction worker, but he was just laid off from the job.” AR 21; see AR 519, 549. While the Workers' Compensation Progress Reports completed by Dr. Blank for the period from March 8, 2014 to July 23, 2014 noted that Plaintiff had a 100 percent temporary impairment, AR 430-35, Dr. Blank reported in August 2014 that Plaintiff said “his pain was a ‘6,' which on the Visual Analog Pain Scale is just moderate, ” and that after treatment, Plaintiff said he had “a 50% reduction in symptoms, which would reduce his pain to a ‘3' (mild).” AR 21; see AR 556-57. And by his November 2014 appointment with Dr. Blank, Plaintiff said he experienced improvement in his low back pain. AR 21; see AR 564.
Plaintiff's initial appointment with Dr. Blank was actually on September 9, 2013. AR 208 (duplicate at 525), 518.
After citing Dr. Blank's treatment note for November 2014, the ALJ stated that Plaintiff “continued to be treated with chiropractic manipulation.” AR 21. But Plaintiff's counsel stated in a pre-hearing letter to the ALJ that in fact there were no further medical records after 2014, because Plaintiff was “unable to continue to see his doctors due to financial constraints.” AR 199; see also AR 46 (Plaintiff's hearing testimony).
The ALJ further discounted Dr. Blank's opinion on the ground that a chiropractor is not an acceptable medical source under Social Security regulations. AR 23 (citing 20 C.F.R. § 404.1513); see Brodie, 2020 WL 5754607, at *7 (noting that a chiropractor is not an “acceptable medical source” as defined by Social Security regulations) (citing 20 C.F.R. § 404.1502(a)). The ALJ was therefore not required to give his opinion controlling weight. See Brodie, 2020 WL 5754607, at *7 (“While a chiropractor's opinion may be considered, it need not be assigned controlling weight.”) (citations omitted).
“Acceptable medical sources” who could “provide evidence to establish an impairment, ” as defined in the applicable regulation that was in effect until March 27, 2017, included licensed physicians, licensed or certified psychologists, licensed optometrists, licensed podiatrists, and qualified speech-language pathologists. 20 C.F.R. § 404.1513(a) (version effective until March 27, 2017). Chiropractors were not included in the definition of “acceptable medical sources.” The current version of the regulation that lists who qualifies as an “accepted medical source” includes additional categories of medical professionals, but still does not include chiropractors. See 20 C.F.R. § 404.1502(a).
Plaintiff contends that the ALJ improperly relied on the opinions of non-treating physicians, Drs. Semble and Berezin, to support his RFC finding of light work. Pl.'s Mem. at 13. What the ALJ actually stated was that he gave “great weight” to the opinion of a consultative examiner, Dr. Goccia, because it was “consistent with [Dr. Goccia's own] findings as well as findings from Dr. Semble and Dr. Berezen's [sic] examination and supports the residual functional capacity.” AR 23. It is well settled that the opinions of non-treating sources may constitute substantial evidence in support of an ALJ's rational conclusion. Suarez v. Colvin, 102 F.Supp.3d 552, 577 (S.D.N.Y. 2015); see also Diaz, 59 F.3d at 315 (finding that the opinions of three non-treating examining physicians, as well as plaintiff's own testimony and medical tests, constituted substantial evidence in support of the ALJ's conclusion). Furthermore, an ALJ may afford greater weight to the opinions of non-treating examining physicians than to those of treating physicians if the opinions of the non-treating physicians “are more consistent with the underlying medical evidence.” Suarez, 102 F.Supp.3d at 577; see also Diaz, 59 F.3d at 313 n.5 (opinions of non-examining sources may override treating sources' opinions “provided they are supported by evidence in the record”) (citation omitted). And “the opinions of consulting sources may constitute substantial evidence if they are consistent with the record as a whole.” Smith v. Colvin, 17 F.Supp.3d 260, 268 (W.D.N.Y. 2014) (internal quotation marks and citation omitted).
The ALJ described Dr. Goccia's examination report, which noted that as of February 4, 2014 Plaintiff's gait was normal, that he did not use an assistive device, and that he did not need assistance with changing for the examination or getting on and off the examination table. AR 20; see AR 424. Plaintiff likewise had no difficulty getting out of a chair. AR 20; see AR 424. Plaintiff had full range of motion of his cervical spine, with no cervical or paracervical pain, and had full range of motion in his elbows, forearms, wrists, fingers, hips, knees, and ankles. AR 20-21; see AR 425. Plaintiff had some limitations in flexion of his lumbar spine, but he had full extension, lateral flexion, and rotary movement bilaterally, with no spinal or paraspinal tenderness. AR 21; see AR 425. Dr. Goccia reported that Plaintiff's muscle strength was 5/5 in his upper and lower extremities with no evidence of muscle atrophy; the ALJ noted that the absence of atrophy is significant because atrophy “is usually observed when pain is severe and functionally limiting.” AR 21; see AR 425. Plaintiff's sensation was intact, and his reflexes were physiologic and equal. AR 21; see AR 425. The ALJ noted Dr. Goccia's opinion that Plaintiff “was mildly limited for activities which require squatting and working overhead.” AR 21; see AR 425.
During his October 18, 2013 examination, Dr. Berezin found, similar to Dr. Goccia, that Plaintiff ambulated independently with a non-antalgic gait; that Plaintiff had no motor or sensory deficits in the upper or lower extremities; that Plaintiff's reflexes were intact and equal in both the upper and lower extremities; and that Plaintiff had no muscle atrophy in his upper extremities. AR 396. During his February 15, 2012 examination, Dr. Semble noted, similar to Dr. Goccia, that in his left shoulder, which was not affected by the March 2013 workplace injury, Plaintiff had forward flexion to 90 degrees and “5/5” strength in both forward flexion and abduction. AR 353. Dr. Semble similarly opined that Plaintiff could “return to a job that did not require overhead lifting.” AR 354.
Notably, Dr. Goccia's findings and opinion were generally consistent with the medical evidence in the record from Plaintiff's examinations in 2013 and 2014 by treating physicians Drs. Cushner and Gordon. Dr. Goccia found that Plaintiff had forward elevation in his shoulders to 90 degrees, AR 425, and Plaintiff's Westmed medical records note an even greater range of motion, with Plaintiff able to elevate his right shoulder from 125 to 140 degrees and his left shoulder to 165 degrees or more. AR 271, 279, 284, 291, 295, 299, 311, 316, 323, 332, 341, 347, 349, 449, 456, 460. Dr. Goccia found that Plaintiff was able to flex forward in his lumbar spine to 60 degrees, and the Westmed medical records note that Plaintiff was able to flex forward in his lumbar spine anywhere from 45 to 65 degrees. AR 271, 280, 292, 295, 299, 311, 316, 323, 341, 347, 349, 449, 456, 460. Dr. Goccia found that Plaintiff had full range of motion in his hips, and the Westmed medical records note that Plaintiff was able to flex his hips 100 degrees. AR 272, 280, 292, 295, 299, 311, 316, 323, 341, 347, 349. Although Dr. Blank's treatment records frequently noted that Plaintiff experienced tension and muscle spasms along his spine, see, e.g., AR 525, 527, 528, 529, 540, 541, 542, neither Dr. Cushner nor Dr. Gordon found this condition, and Dr. Goccia and Dr. Berezin specifically found no muscle spasm along Plaintiff's spine, see AR 396, 425.
Finally, Plaintiff claims that the ALJ erred because he “cherry picked the evidence to support his conclusion.” Pl.'s Mem. at 13. But an ALJ is not required to “explicitly . . . reconcile every conflicting shred of medical testimony.” Miles v. Harris, 645 F.2d 122, 124 (2d Cir. 1981); see also, e.g., Jones v. Berryhill, 415 F.Supp.3d 401, 415 (S.D.N.Y. 2019); Daniels v. Berryhill, 270 F.Supp.3d 764, 775 (S.D.N.Y. 2017). Nor is an ALJ required to state on the record every reason justifying a decision. Brault v. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 448 (2d Cir. 2012). “An ALJ's failure to cite specific evidence does not indicate that such evidence was not considered.” Id. (internal quotation marks and citation omitted). Here, the ALJ expressly stated that “each note, and the subjective allegations and clinical findings contained within, ha[ve] been considered in making this decision, even if not expressly summarized in this decision.” AR 17. There is nothing inappropriate about the ALJ's decision not to describe each and every item of medical evidence in the voluminous record, and the ALJ applied the correct legal standard despite the fact that he did not do so.
Moreover, although Plaintiff claims that the ALJ “[was] not allowed to pick and choose when reviewing evidence, ” Pl.'s Mem. at 14, an ALJ may “choose between properly submitted medical opinions.” Balsamo v. Chater, 142 F.3d 75, 81 (2d Cir. 1998). And “[g]enuine conflicts in the medical evidence are for the Commissioner to resolve.” Veino, 312 F.3d at 588; see Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012) (“In our review, we defer to the Commissioner's resolution of conflicting evidence.”). It was entirely appropriate for the ALJ to resolve conflicts in the medical evidence between the opinions of Plaintiff's treating sources and consultative examiner Dr. Goccia, particularly when the opinions of the treating sources suffered from all of the deficiencies described above.
“A finding as to RFC will be upheld on review when there is substantial evidence in the record to support the requirements listed in the regulations.” Jiminez v. Astrue, No. 12 Civ. 3477 (GWG), 2013 WL 4400533, at *12 (S.D.N.Y. Aug. 14, 2013) (internal quotation marks and citation omitted). In addition, “[a]n ALJ need not recite every piece of evidence that contributed to the decision, so long as the record ‘permits us to glean the rationale of an ALJ's decision.'” Cichocki v. Astrue, 729 F.3d 172, 178 n.3 (2d Cir. 2013) (per curiam) (quoting Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983)). Here, as noted above, although the ALJ did not “summarize every single progress note in specific detail, ” AR 17, he included an extensive discussion of the medical and non-medical evidence in the record, including MRI results, treatment records, consultative and independent medical examination reports, medical opinion evidence, and Plaintiff's own testimony, as well as an explanation of how he evaluated such evidence, in arriving at his determination of Plaintiff's RFC. See AR 16-24. Furthermore, as already explained, the ALJ properly weighed the medical opinion evidence in the record from both treating and non-treating sources. Accordingly, the ALJ properly determined Plaintiff's RFC, and the ALJ's RFC determination is supported by substantial evidence.
III. Credibility and Step Five Determinations
Although Plaintiff does not challenge either the ALJ's credibility determination or his determination at the fifth step of the analysis that there is other substantial gainful activity that Plaintiff can perform, the Commissioner argues in his motion papers that these determinations were both correct. See Def.'s Mem. at 20-22.
A. Credibility
The regulations set forth a two-step process to assess a claimant's credibility. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). First, the ALJ determines whether the claimant suffers from a “medically determinable impairment that could reasonably be expected to produce [his or her] symptoms, such as pain.” 20 C.F.R. § 404.1529(b). If that is the case, the ALJ then considers “the extent to which [the claimant's] symptoms can reasonably be accepted as consistent with the objective medical evidence and other evidence” of record. 20 C.F.R. § 404.1529(a). The ALJ “is not required to accept the claimant's subjective complaints without question; he [or she] may exercise discretion in weighing the credibility of the claimant's testimony in light of the other evidence in the record.” Genier, 606 F.3d at 49 (citation omitted). “If the ALJ decides to reject subjective testimony concerning pain and other symptoms, he [or she] must do so explicitly and with sufficient specificity to enable the Court to decide whether there are legitimate reasons for the ALJ's disbelief and whether his [or her] determination is supported by substantial evidence.” Donofrio v. Saul, No. 18 Civ. 9968 (ER), 2020 WL 1487302, at *6 (S.D.N.Y. March 27, 2020) (quoting Brandon v. Bowen, 666 F.Supp. 604, 608 (S.D.N.Y. 1987)) (internal quotation marks omitted).
The ALJ must consider all available evidence, including objective medical evidence and information regarding (i) the claimant's daily activities; (ii) the location, duration, frequency, and intensity of his or her symptoms; (iii) any precipitating and aggravating factors; (iv) the type, dosage, effectiveness, and side effects of any medications taken; (v) treatment other than medication used to relieve the claimant's symptoms; (vi) any measures used to relieve his or her symptoms; and (vii) other factors concerning functional limitations and restrictions resulting from the claimed symptoms when evaluating a claimant's credibility. 20 C.F.R. § 404.1529(c)(3)(i)-(vii); SSR 96-7p, 1996 WL 374186, at *34485 (S.S.A. 1996). The ALJ is not required to “discuss all the factors, however, as long as the decision includes precise reasoning, is supported by evidence in the case record, and clearly indicates the weight the ALJ gave to the claimant's statements and the reasoning for that weight.” Simmons v. Comm'r of Soc. Sec., 103 F.Supp.3d 547, 569 (S.D.N.Y. 2015) (internal quotation marks and citation omitted).
SSR 96-7p was superseded by SSR 16-3p, 2016 WL 1119029 (S.S.A. 2016), effective March 16, 2016. Because Plaintiff filed for DIB on November 16, 2013, SSR 96-7p is the appropriate standard to apply in this case.
“It is the role of the Commissioner, not the reviewing court, ‘to resolve evidentiary conflicts and to appraise the credibility of witnesses,' including with respect to the severity of a claimant's symptoms.” Cichocki v. Astrue, 534 Fed.Appx. 71, 75 (2d Cir. 2013) (summary order) (quoting Carroll v. Sec'y of Health & Human Servs., 795 F.2d 638, 642 (2d Cir. 1983)). “While it is not sufficient for the [ALJ] to make a single, conclusory statement that the claimant is not credible or simply to recite the relevant factors, remand is not required where the evidence of record permits us to glean the rationale of an ALJ's decision[.]” Id. at 76 (internal quotation marks and citations omitted). Where an ALJ provides specific reasons for finding a claimant's testimony not credible, the ALJ's credibility determination “is generally entitled to deference on appeal.” Selian v. Astrue, 708 F.3d 409, 420 (2d Cir. 2013) (per curiam) (citations omitted); see Tejada, 167 F.3d at 775-76 (upholding ALJ's credibility determination). Courts “defer to an ALJ's decision to discredit subjective complaints if the decision is supported by substantial evidence.” Watson v. Berryhill, 732 Fed.Appx. 48, 52 (2d Cir. 2018) (summary order) (citing Aponte v. Sec., Dep't of Health and Human Servs., 728 F.2d 588, 591 (2d Cir. 1984)).
Here, the ALJ gave multiple reasons why he found Plaintiff's allegations of debilitating symptoms “not wholly credible.” AR 22. The ALJ first noted that Plaintiff described engaging in daily activities “which are not limited to the extent one would expect, given the complaints of disabling symptoms and limitations.” AR 22. The ALJ cited Plaintiff's testimony that he could walk a quarter of a mile at time and drive to New York City for work-over an hour away from his home- for the period from November 2013 to May 2014, and again in June and July 2015, which showed “the ability to use the shoulders to steer, use hand and foot controls, [and] an ability to turn one's head to back up and change lanes.” AR 22; see AR 39, 41. The ALJ also made note of Plaintiff's Function Report, in which he stated that he could do light cleaning and laundry and that he shopped, and did not indicate any problems with sitting, climbing stairs, kneeling, squatting, reaching, or using his hands. AR 22; see AR 171-81. As set forth above, activities of daily living are among the factors that an ALJ may properly consider in assessing a claimant's credibility. 20 C.F.R. § 404.1529(c)(3)(i); Ayala v. Berryhill, No. 18 Civ. 124 (VB) (LMS), 2019 WL 1427398, at *14 (S.D.N.Y. Mar. 12, 2019) (“[T]he regulations provide for consideration of a claimant's activities of daily living, . . . and an ALJ is entitled to take a plaintiff's activities of daily living into account in making a credibility determination.”) (internal quotation marks, brackets, and citation omitted), adopted sub nom. Ayala v. Comm'r of Soc. Sec. Admin., 2019 WL 1417220 (S.D.N.Y. Mar. 29, 2019).
As part of his credibility determination, the ALJ cited Dr. Blank's treatment notes, which stated that Plaintiff reported lower back pain that was, on average, “a ‘3 to a 6,' which on the Visual Analog Pain Scale is just mild to moderate, ” and the medical evidence in the record from Dr. Berezin and Dr. Goccia, which showed that Plaintiff had no muscle atrophy in either the upper or lower extremities, which “is usually observed when pain is severe and functionally limiting.” AR 22; see AR 396, 425, 553, 556. The ALJ also cited Dr. Semble's statement in his February 2012 report that Plaintiff could “work at a job that did not require overhead lifting, ” and Dr. Goccia's statement in his report that Plaintiff was “only mildly limited for activities which required squatting and working overhead.” AR 22; see AR 354, 425.
The ALJ also considered Plaintiff's hearing testimony regarding whether or not he had worked since the alleged onset date of his disability, finding that “[t]he fact that the claimant provided inaccurate information on a matter so integral to determining disability suggests that much of what the claimant has alleged may be similarly unreliable.” AR 23; see AR 38-39, 53-55. “It is well established . . . that an ALJ may consider a claimant's inconsistent statements on the record, including those pertaining to work history, when arriving at a credibility determination.” Morales v. Berryhill, No. 14 Civ. 2803 (KMK) (LMS), 2018 WL 679566, at *17 (S.D.N.Y. Jan. 8, 2018) (collecting cases), adopted sub nom. Morales v. Comm'r of Soc. Sec., 2018 WL 679492 (S.D.N.Y. February 1, 2018); see Ross v. Colvin, No. 6:13-CV-00755 (NAM/TWD), 2014 WL 5410327, at *18 (N.D.N.Y. Oct. 21, 2014) (“Inconsistent statements . . . undermine a claimant's credibility.”). The ALJ also noted his observation that Plaintiff “betrayed no evidence of debilitating symptoms while testifying at the hearing; and appeared relatively healthy in the hearing, ” though the ALJ properly did not afford undue weight to these observations. AR 23; see SSR 96-7p, 1996 WL at *34488 (“In instances in which the adjudicator has observed the individual, the adjudicator is not free to accept or reject the individual's complaints solely on the basis of such personal observations, but should consider any personal observations in the overall evaluation of the credibility of the individual's statements.”); Schaal v. Apfel, 134 F.3d 496, 502 (2d Cir. 1998) (“Although such observations should be assigned only ‘limited weight,' there is no per se legal error where the ALJ considers physical demeanor as one of several factors in evaluating credibility.”).
Finally, the ALJ considered that the treatment Plaintiff had received for his “allegedly disabling impairments” was “essentially routine, ” AR 23, consisting as it did of medication, physical therapy, and chiropractic treatment. Again, this was a proper factor to consider in making his credibility determination. See Ayala, 2019 WL 1427398, at *14 (“courts in this Circuit routinely uphold credibility determinations in which the ALJ finds a claimant's statements about their symptoms not credible based, inter alia, on a conservative treatment record”) (internal quotation marks, brackets, and citation omitted); see also 20 C.F.R. § 404.1529(c)(3)(iv)-(v).
In sum, the ALJ made a proper assessment of Plaintiff's lack of credibility, and his assessment is supported by substantial evidence.
B. Step Five of the Disability Determination
The ALJ concluded that Plaintiff retained the RFC to perform light work with the exceptions that he could only occasionally climb stairs and ramps; only occasionally balance, stoop, and crouch; only occasionally reach, including overhead reaching with his right upper extremity; could never crawl, kneel, or climb ladders, scaffolds, and ropes; and had to avoid unprotected heights and machinery. AR 16. Thus, as noted by the ALJ, Plaintiff's “ability to perform all or substantially all of the requirements of this level of work has been impeded by additional limitations.” AR 25. For the reasons stated in Section II, supra, the ALJ's RFC determination was proper and supported by substantial evidence. Consequently, the ALJ's decision to use the Medical-Vocational guidelines as a framework for decision-making and consult a vocational expert was proper as well. See Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (“If a claimant has nonexertional limitations that significantly limit the range of work permitted by his [or her] exertional limitations, the ALJ is required to consult with a vocational expert.”) (internal quotation marks and citation omitted). The ALJ's determination, in reliance on the vocational expert's testimony, that Plaintiff could adjust to other work that existed in significant numbers in the national economy was therefore both proper and supported by substantial evidence.
CONCLUSION
For the foregoing reasons, I respectfully recommend that Plaintiff's motion for summary judgment (ECF No. 11) be DENIED, the Commissioner's motion for judgment on the pleadings (ECF No. 16) be GRANTED, and that judgment be entered in favor of the Commissioner.
NOTICE
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from service of this Report and Recommendation to file written objections. See also Fed.R.Civ.P. 6(a), (d) (adding three additional days when service is made by mail). A party may respond to another party's objections within fourteen (14) days after being served with a copy. Fed.R.Civ.P. 72(b)(2). Such objections, and any responses to such objections, shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable Phillip M. Halpern, United States District Court, Southern District of New York, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the Honorable Andrew E. Krause at the same address.
Any request for an extension of time for filing objections or responses to objections must be directed to Judge Halpern, and not to the undersigned.
Failure to file timely objections to this Report and Recommendation will result in a waiver of objections and will preclude appellate review. See Thomas v. Arn, 474 U.S. 140 (1985); Smith v. Campbell, 782 F.3d 93, 102 (2d Cir. 2015).