Opinion
20-CV-6528 (LTS)(RWL)
12-17-2021
YULONDA HOPSON, Plaintiff, v. COMMISSIONER OF SOCIAL SECURITY, Defendant.
REPORT AND RECOMMENDATION TO HON. LAURA TAYLOR SWAIN: SOCIAL SECURITY APPEAL
ROBERT W. LEHRBURGER, UNITED STATES MAGISTRATE JUDGE
Plaintiff Yulonda Hopson, represented by counsel, commenced the instant action against the Commissioner of the Social Security Administration (the “Commissioner”) pursuant to the Social Security Act (the “Act”), 42 U.S.C. § 405(g), seeking review of the Commissioner's decision that Hopson is not entitled to supplemental security income benefits (“SSI”) under 42 U.S.C. § 423 et seq. Hopson moves for judgment on the pleadings pursuant to Rule 12(c) of the Federal Rules Of Civil Procedure, seeking an order awarding benefits or, in the alternative, remanding the case for a new hearing and decision. (Dkt. 22.) The Commissioner cross-moves for judgment on the pleadings and asks the Court to affirm the Commissioner's decision. (Dkt. 23.) For the reasons explained below, this Court respectfully recommends that Hopson's motion be DENIED, that the Commissioner's motion be GRANTED, and that judgment be entered in favor of the Commissioner.
APPLICABLE LAW
Before providing a recitation of the factual and procedural history, it is helpful to summarize the standard of review and legal principles that apply to disability claims. 1
A. Standard Of Review
A United States District Court may affirm, modify, or reverse (with or without remand) a final decision of the Commissioner. 42 U.S.C. § 405(g); Skrodzki v. Commissioner Of Social Security Administration, 693 Fed.Appx. 29, 29 (2d Cir. 2017) (summary order). The inquiry is “whether the correct legal standards were applied and whether substantial evidence supports the decision.” Butts v. Barnhart, 388 F.3d 377, 384 (2d Cir. 2004); see also Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012) (same).
“‘Failure to apply the correct legal standard constitutes reversible error, including, in certain circumstances, failure to adhere to the applicable regulations.'” Douglass v. Astrue, 496 Fed.Appx. 154, 156 (2d Cir. 2012) (quoting Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008) (remanding for noncompliance with regulation, which resulted in incomplete factual findings)). Courts review de novo whether the correct legal principles were applied and whether the legal conclusions made by the Administrative Law Judge (“ALJ”) were based on those principles. See Johnson v. Bowen, 817 F.2d 983, 986 (2d Cir. 1987) (reversing where the court could not “ascertain whether [the ALJ] applied the correct legal principles ... in assessing [plaintiff's] eligibility for disability benefits”); Townley v. Heckler, 748 F.2d 109, 112 (2d Cir. 1984) (reversing where the Commissioner's decision “was not in conformity with the regulations promulgated under the Social Security Act”); Thomas v. Astrue, 674 F.Supp.2d 507, 510-11 (S.D.N.Y. 2009) (reversing for legal error after de novo consideration).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the court must “‘conduct a plenary review of the administrative record to determine if there is substantial evidence, considering the record as a whole, to support the Commissioner's decision.'” Brault v. Social Security Administration, Commissioner, 683 F.3d 443, 447 2 (2d Cir. 2012) (per curiam) (quoting Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009)). Substantial evidence is defined as “‘more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.'” Schaal v. Apfel, 134 F.3d 496, 501 (2d Cir. 1998) (quoting Richardson v. Perales, 402 U.S. 389, 401, 91 S.Ct. 1420, 1427 (1971)); see also Biestek v. Berryhill, __ U.S. __,, 139 S.Ct. 1148, 1154 (2019) (reaffirming same standard). “The substantial evidence standard means once an ALJ finds facts, [the court] can reject those facts only if a reasonable factfinder would have to conclude otherwise.” Brault, 683 F.3d at 448 (internal quotation marks omitted) (emphasis in original); see also 42 U.S.C. § 405(g) (“findings of the Commissioner of Social Security as to any fact, if supported by substantial evidence, shall be conclusive”).
To be supported by substantial evidence, the ALJ's decision must be based on consideration of “all evidence available in [the claimant]'s case record.” 42 U.S.C. § 423(d)(5)(B). The Act requires the ALJ to set forth “a discussion of the evidence” and the “reasons upon which [the decision] is based.” 42 U.S.C. § 405(b)(1). While the ALJ's decision need not “mention[ ] every item of testimony presented, ” Mongeur v. Heckler, 722 F.2d 1033, 1040 (2d Cir. 1983) (per curiam), or “‘reconcile explicitly every conflicting shred of medical testimony, '” Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010) (quoting Fiorello v. Heckler, 725 F.2d 174, 176 (2d Cir. 1983)), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Commissioner Of Social Security, 557 F.3d 79, 82-84 (2d Cir. 2009) (mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (overlooking and mischaracterizing evidence); Ruiz v. Barnhart, 3 No. 01-CV-1120, 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (ignoring evidence).
Where evidence is deemed susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld. Rutherford v. Schweiker, 685 F.2d 60, 62 (2d Cir. 1982). The court must afford the Commissioner's determination considerable deference and “may not substitute its own judgment for that of the [Commissioner], even if it might justifiably have reached a different result upon a de novo review.” Jones v. Sullivan, 949 F.2d 57, 59 (2d Cir. 1991) (quoting Valente v. Secretary Of Health And Human Services, 733 F.2d 1037, 1041 (2d Cir. 1984)); Dunston v. Colvin, No. 14-CV-3859, 2015 WL 54169, at *4 (S.D.N.Y. Jan. 5, 2015) (same) (quoting Jones, 949 F.2d at 59), R. & R. adopted, 2015 WL 1514837 (S.D.N.Y. April 2, 2015). Accordingly, if a court finds that there is substantial evidence supporting the Commissioner's decision, the court must uphold the decision, even if there is also substantial evidence for the claimant's position. Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010). “The [c]ourt, however, will not defer to the Commissioner's determination if it is the product of legal error.” Dunston, 2015 WL 54169 at *4 (internal quotation marks omitted) (citing, inter alia, Douglass, 496 Fed.Appx. at 156; Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999)).
B. Legal Principles Applicable To Disability Determinations
Under the Act, every individual meeting certain requirements and considered to have a “disability” is entitled to disability insurance benefits. 42 U.S.C. § 423(a)(1). The Act defines disability as an “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 12 months.” 42 U.S.C. § 423(d)(1)(A). A claimant's impairments must be 4 “of such severity that he is not only unable to do his previous work but cannot, considering his age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy.” 42 U.S.C. § 423(d)(2)(A).
To determine whether an individual is disabled and therefore entitled to disability benefits, the Commissioner conducts a five-step inquiry. 20 C.F.R. § 416.920(4). First, the Commissioner must determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 416.920(4)(i), (b). If so, the claimant is not eligible for benefits and the inquiry ceases.
If the claimant is not engaged in any such activity, the Commissioner proceeds to the second step and must determine whether the claimant has a “severe impairment, ” which is an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities. 20 C.F.R. § 416.920(4)(ii), (c). If the claimant does not have an impairment or combination of impairments that are “severe, ” the claimant is not entitled to benefits and the inquiry ceases. Id.
If the claimant has a severe impairment or combination of impairments, the Commissioner continues to step three and must determine whether the impairment or combinations of impairments is, or medically equals, one of those included in the “Listings” of the regulations contained at 20 C.F.R. Part 404, Subpart P, Appendix 1. If the claimant's impairment or impairments meet or medically equal one of those listings, the Commissioner will presume the claimant to be disabled, and the claimant will be eligible for benefits. 20 C.F.R. § 416.920(4)(iii), (d).
If the claimant does not meet the criteria for being presumed disabled, the Commissioner continues to step four and must assess the claimant's residual functional 5 capacity (“RFC”), the claimant's ability to perform physical and mental work activities on a sustained basis despite his or her impairments, and determines whether the claimant possesses the RFC to perform the claimant's past work. 20 C.F.R. § 416.920(4)(iv), (f), (h). If so, the claimant is not eligible for benefits and the inquiry ceases.
If the claimant is not capable of performing his prior work, the Commissioner must continue to step five and determine whether the claimant is capable of performing other available work. 20 C.F.R. § 416.920(4)(v), (g), (h). If the claimant can perform other available work, the claimant is not entitled to benefits. 20 C.F.R. § 416.920 (4)(v). The claimant bears the burden of proof for the first four steps. Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013). Once the claimant has established that she is unable to perform her past work, however, the Commissioner bears the burden of showing at the fifth step that “there is other gainful work in the national economy which the claimant could perform.” Balsamo v. Chater, 142 F.3d 75, 80 (2d Cir. 1998) (internal quotation marks omitted).
PROCEDURAL HISTORY
Hopson filed an application for SSI on August 1, 2016, alleging disability since January 1, 2003, due to lupus, asthma, and hypertension. (R. 268, 347.) After her claim was denied on initial review (R. 280), Hopson requested a hearing before an 6 Administrative Law Judge (“ALJ”). (R. 292.) ALJ John Aletta conducted a remote hearing on July 2, 2019, where Hopson, represented by counsel, testified as did a vocational expert (“VE”), Courtney Olds. (R. 124-68.) On July 24, 2019, the ALJ issued a decision, finding that Hopson was not disabled. (R. 13-27.)
Hopson previously applied for SSI and was denied. (See R. 268 (listing earlier applications and proceedings); R. 256-62 (earlier ALJ decision, after remand, denying benefits, Jan. 15, 2014) (the “2014 Decision”).) Only the August 1, 2016 application is at issue in this action.
“R.” or “Record” refers to the Administrative Record. “Pl. Mem.” refers to the Memorandum In Support Of Plaintiff's Motion For Judgment On The Pleadings. (Dkt. 22.) “Def. Opp.” refers to the Memorandum Of Law In Opposition To Plaintiff's Motion For Judgment On The Pleadings And In Support Of the Commissioner's Cross-Motion For Judgment On The Pleadings. (Dkt. 24.) Plaintiff did not file a reply.
Hopson timely appealed the ALJ's decision to the Appeals Council. In doing so, she submitted additional medical records, even though her attorney had represented to the ALJ that the record was complete. (R. 127.) The Appeals Council ruled that the additional records would have made no difference to the outcome of Hopson's case and denied her appeal on June 22, 2020, thus making the ALJ's decision the final decision of the Commissioner. (R. 2.) Hopson timely challenged the Commissioner's decision by filing her complaint in this action on August 18, 2020. (Dkt. 4.)
The Court has reviewed the entire Record and determined that the Commissioner's summary of the record is largely accurate although not necessarily fully comprehensive. (See Pl. Mem. at 2-8.) Plaintiff did not present a formal summary of the record and, not having filed a reply, did not dispute the Commissioner's statement of the Record. The facts set forth below largely track the Commissioner's summary, supplemented or altered by the Court based on the Court's independent review of the record. To be clear, the Court has not accepted any fact put forth by the Commissioner that is not supported by the Record.
Hopson was born on July 19, 1966. (R. 23.) At the time of the hearing, she lived with her adult son in a fifth-floor apartment that she accessed by climbing stairs. (R. 129.) Her highest level of education is the ninth grade. (R. 129.) In 2005 to 2006, Hopson worked independently as a hair braider from her home. (R. 130.) She has not worked since 2006. (R. 134.) As of the time of her hearing, she was taking several medications, including steroids. (R. 135-36.) 7
A. The Medical Record
Hopson has been receiving treatment for hypertension and other matters from Dr. Leroy Herbert at Harlem Hospital Center (“HHC”) since at least September 2010. (R. 63940.) There are records of appointments with and evaluation by Dr. Herbert for at least fifty visits at fairly regular intervals during that time period. (R. 532-639.)
On July 6, 2011, Hopson reported experiencing “chronic fatigue after taking her medications.” (R. 635.) On August 10, 2011, Hopson presented with complaints of “intermittent fatigue requiring bedrest” and, in addition to hypertension, was diagnosed with systemic lupus erythematosus (“SLE” or “lupus”). (R. 634.) Hopson next reported intermittent fatigue on June 29, 2012. (R. 607.)
Hopson again complained of intermittent fatigue in April and May 2013 and was referred to Dr. Meggan MacKay in the rheumatology department of HHC for evaluation of SLE. (R. 602, 615-20.) Dr. MacKay noted that Hopson had previously been diagnosed with lupus nephritis (a type of lupus affecting the kidneys) in 2003 based on the levels of protein in her urine. (R. 615, 619.) A kidney biopsy to confirm the 2003 diagnosis, however, was attempted but not completed due to Hopson's difficulty with the procedure. (R. 615.) Dr. MacKay questioned the lupus diagnosis, because blood tests done at the time were largely negative. (R. 615 (“all serologies except for a positive Ro antibody were negative at that time.”), R. 619 (“the diagnosis of lupus nephritis in the absence of autoantibodies, low complement or a kidney biopsy is not clear to me.”).)
Dr. MacKay noted that Hopson had been treated with steroids to which she had responded well but was having difficulty tapering off of them. (R. 615, 619.) Dr. MacKay's physical examination of Hopson was normal, and laboratory tests relevant to lupus were 8 negative. (R. 615.) Dr. MacKay concluded, “while [Hopson] may have had SLE years ago and responded well to medication, I do not see evidence for active SLE at this time.” (R. 615, see also 619 (“There is no evidence of active SLE at this time and no evidence of chronic damage.”).) Dr. Herbert and Dr. MacKay agreed to a “very slow” steroid taper since Hopson had been on them so long and would need time to adjust to the lower doses. (R. 615.) When Hopson returned to Dr. Herbert for a routine follow-up on May 17, 2013, she again reported intermittent fatigue. (R. 602.) Dr. Herbert's notes indicate that Hopson was slowly reducing her dose of steroids, specifically prednisone. (R. 602.)
In December 2015, x-rays were taken of Hopson's right shoulder. The films showed no fracture, dislocation, or subluxation, but there was “high riding of the right shoulder suggestive of underlying rotator cuff injury.” (R. 436.) Bone density and architecture were normal, as was the surrounding soft tissue. There was no joint effusion, and the acromioclavicular joint was intact. (R. 436.) The x-ray analyst recommended a follow-up MRI “if clinically indicated.” (R. 436.) The Record does not contain any evidence indicating that a follow-up MRI of her right shoulder was ever taken or clinically indicated.
In January 2016, Hopson was in a car accident, after which she experienced pain in her right buttock and posterior leg. (R. 456.) She visited the HHC emergency department. Physical examination found tenderness in her lumbar region, but she was able to bend 90 degrees and had full strength and range of motion in her legs. (R. 457.) Hopson declined pain medication and was discharged with a recommendation to follow up with her primary care doctor. (R. 457.) 9
On January 22, 2016, Hopson was evaluated by Dr. Albert Villafuerte, a physiatrist, for low back pain. (R. 482-84.) The examination revealed tenderness and tightness in the lumbar paraspinal muscles, and limited range of motion in the lumbar spine. (R. 483.) Hopson had a straight leg raise test that elicited pain in the bilateral lumbar areas, and a slight decrease in muscle strength in her right hip and knee. (R. 483.) The examination was otherwise unremarkable. (R. 483.) Dr. Villafuerte recommended an x-ray of the lumbar spine and physical therapy. (R. 484.) Hopson attended physical therapy for her back weekly from January 2016 through May 2016. (R. 487-520.) An MRI of Hopson's lumbar spine from March 2016 showed posterior lumbar disc bulging at several levels. (R. 485.)
During the time since Hopson filed her application on August 1, 2016, and when the hearing was held on July 2, 2019, Hopson received routine medical care from Dr. Herbert, primarily related to hypertension. (R. 534-71.) Dr. Herbert's notes generally characterized Hopson's blood pressure as being “under good control.” (E.g., R. 543, 548, 550, 556, 570.) Of the seventeen or so visits with Dr. Herbert that Hopson had over the relevant time period, the records show that Hopson reported intermittent fatigue to Dr. Herbert twice, once on August 5, 2016 and then on August 25, 2017. (R. 556, 570.)
B. Medical Opinions
The Record contains two relevant medical source opinions: one from a consultative doctor who examined Hopson once, and the other from Hopson's long-time treating physician, Dr. Herbert. 10
1. Sharon Revan, M.D. - Consultative Examiner
Dr. Sharon Revan performed a consultative internal medicine examination of Hopson on October 4, 2016. (R. 472-75.) Hopson reported a history of hypertension, asthma, stomach ulcers, and lupus as well as a history of right lower back pain since the January 2016 car accident. (R. 472.) Dr. Revan noted that Hopson has “lupus affecting her kidneys, diagnosed in 2003” and that Hopson was treated with prednisone. (R. 472.) She further noted a history of hospitalizations for lupus in 2003, 2007, 2010, and 2015. (R. 472.) Hopson's then current medications included prednisone 9 mg daily, a diuretic (hydrochlorothiazide), pain patches, albuterol (for asthma), low dose aspirin, and famotidine (for stomach ulcers). (R. 473.)
On examination, Hopson had full range of motion in her back except for lumbar flexion, which was ninety degrees. (R. 474.) She had a positive straight leg raise test on the right leg at forty-give degrees. (R. 474.) The examination was otherwise unremarkable, including findings of full range of motion in the shoulders, as well as full strength in the upper and lower extremities. (R. 472-75.)
Dr. Revan assessed that Hopson has no limitations with the upper extremities for fine and gross motor activity, and moderate limitations with walking and climbing stairs due to shortness of breath. (R. 475.) Dr. Revan also assessed limitations with sitting and lying down due to back pain. (R. 475.) Finally, Dr. Revan assessed mild to moderate limitations with activities of daily living due to fatigue. (R. 475.)
2. Leroy Herbert, M.D. - Treating Doctor
Hopson's treating provider, Dr. Herbert, provided a “whom it may concern” letter, dated August 25, 2017. (R. 477.) The body of the letter, in its entirety, reads as follows: 11
I am writing this follow-up letter on behalf of my patient, Ms. Yulanda Hopson. She has multiple medical problems such as: Systemic Lupus Erythematosis (SLE), Hypertension and Anemia. She has been suffering from these illnesses since 2003. She has had multiple complications from the SLE. The patient underwent a MRI of the low back on 3/13/2016. It showed multiple posterior peripheral bulges at levels L2/3, L3/4, L4/5, L5/S 1. She also suffers from frequent bouts of fatigue. The fatigue is secondary to a combination of the Lupus and the medications: (Prednisone and Hydrochlorothiazide). The continued fatigue makes it very difficult for her to maintain consistent employment.(R. 477.)
C. Hearing Testimony
Hopson testified that she last worked as a self-employed hair braider in 2006, which entailed mostly standing and some sitting, and lifting less than ten pounds. (R. 130-34.) She testified that since she was diagnosed with lupus she had been extremely fatigued and unable to do anything consistently. (R. 134.) She reported experiencing vertigo that made her dizzy most of the time and pain in her knees, arms, ankles, and lower back. (R. 134-35.) Hopson testified that she took prednisone, hydrocortisone for hypertension, albuterol for asthma, magnesium for vertigo, and famotidine for ulcers, and that the steroids caused extreme fatigue. (R. 135-37.) Hopson stated that her asthma was exacerbated by excessive walking, dust, or odors, that she could not lift more than ten pounds, and that sometimes bending and stooping were difficult. (R. 139-40.)
Hopson testified that she lived with her adult son, who did most of the cooking and shopping, but that she could prepare food for herself, do her own laundry, and otherwise take care of personal needs. (R. 141-42.) She stated that she did not socialize much, but that she sometimes visited her sister or grandchildren. (R. 144-45.) Hopson testified that she injured her back in a car accident in 2016 and that the pain had worsened over time. (R. 146.) In response to questions about her right shoulder, Hopson said that she 12 experiences pain there on a regular basis, mostly in the mornings after waking up. (R. 147-48.) She stated that she did exercises for the shoulder, often wore a sling (although did not have one on the day of the hearing), and had trouble reaching overhead. (R. 148.)
In general, Hopson reported having good days and bad days, but the bad days were more common (18 to 22 days a month), and that she engaged in zero activity about ten days a month due to constant fatigue. (R. 149.) She testified that she experienced constant fatigue that “doesn't go away” and that she naps about an hour every day. (R. 150-51.) Hopson also said she had dizzy spells every couple of weeks that lasted for about forty-five minutes until her medication took effect. (R. 150.)
Hopson testified that whenever she tried to work in the early to mid-2000's, she ended up in the hospital. (R. 152-53.) She asserted that she could work well for three weeks but then end up sick for the next two months. (R. 152.)
The only other testimony at the hearing was that of the VE. The VE testified that Hopson's past work as a hair braider was skilled and “light” in exertional nature both as actually performed by Hopson and classified by the Dictionary of Occupational Titles (“DOT”). (R. 157.) The ALJ asked the VE to consider a hypothetical individual with Hopson's vocational profile and who could perform light work except only occasionally climb ramps and stairs, ropes, or scaffolds; frequently balance, stoop, kneel, crouch, or crawl; never work unprotected heights; and never tolerate concentrated exposure to dust, odors, fumes, gases, or other pulmonary irritants. (R. 157-58.) The VE testified that such an individual would be able to perform Plaintiff's past work as a hair braider. (R. 158.) The VE acknowledged, however, that if the same hypothetical person were limited to only 13 occasional use of their dominant arm, the person would not be able work as a hair braider. (R. 165.)
The VE also testified that such a hypothetical individual could perform other work that existed in sufficient numbers in the national economy, such as the unskilled light jobs of mail sorter, office helper, and cafeteria attendant. (R. 159.) The VE added that a worker who needed to be off task up to fifteen percent of the workday would not be competitively employable (R. 163); nor would a person who was likely to be absent from work more than four times a month due to medical conditions. (R. 165.)
D. The ALJ's Decision
The ALJ followed the requisite five-step sequential analysis. At step one, the ALJ found that Hopson had not engaged in substantial gainful activity since her August 1, 2016 application date. (R. 18.) At step two, the ALJ found that only Hopson's degenerative disc disease was a severe, medically-determined impairment during the relevant period. (R. 18.) In reaching that conclusion, the ALJ found that several of Hopson's impairments, including asthma and hypertension, were not severe, because they did not limit Hopson's abilities to perform basic work activities. (R. 18-19.) The ALJ further found that Hopson's lupus was not a medically determinable impairment because it was not shown by medically acceptable clinical or laboratory diagnostic techniques as required by regulation. (R. 19 (citing 20 C.F.R. § 416.908).) The ALJ specifically cited the finding of Dr. MacKay, that although Hopson had had lupus in the past, there no longer was evidence of active lupus. (R. 19, citing R. 615.)
At step three, the ALJ determined that Hopson's impairments, either singly or in combination, did not meet or medically equal the criteria of an impairment set forth in the 14 Listings. (R. 19-20.) Next, the ALJ considered Plaintiff's treatment history and evaluated the medical opinions of record. The ALJ gave “partial weight” to the opinion of consultative examiner Dr. Revan. (R. 21.) The ALJ credited Dr. Revan's opinion that Hopson had no limitations in her upper extremities, moderate limitations with walking and climbing stairs due to shortness of breath, and mild to moderate limitations with activities of daily living due to fatigue. (R. 21.) The ALJ gave the opinion only partial weight, however, because Dr. Revan examined Hopson only once. (R. 21-22.)
The ALJ afforded “little weight” to the opinion of Hopson's treating physician, Dr. Herbert, who stated that Hopson's continued fatigue made it very difficult for her “to maintain consistent employment.” (R. 22.) The ALJ reasoned that the opinion was “vague, ” did not provide a function-by-function analysis, reached a conclusion reserved to the Commissioner, and was inconsistent with Hopson's activities of daily living, including preparation of food for herself, doing laundry, going up five flights of stairs to the apartment where she lived, going shopping, and visiting others. (R. 22.)
The ALJ then determined that Hopson had the residual functional capacity to perform light work with some additional limitations, including occasional climbing of ramps, stairs, ladders, ropes or scaffolds; at most frequent balancing, stooping, kneeling, crouching, or crawling; no working at unprotected heights; and no concentrated exposure to dust, fumes, odors, gases or other pulmonary irritants. (R. 20-22.) At step four, the ALJ determined that Hopson had past relevant work as a hair braider. (R. 22-23.)
Finally, relying on the VE's testimony that someone with Hopson's RFC could be a hair braider, the ALJ found Plaintiff could perform her past relevant work. (R. 22-23.) The ALJ nevertheless proceeded to step five and found that there were additional jobs 15 that Hopson could perform that existed in significant numbers in the national economy, as testified to by the VE. (R. 23.) Accordingly, the ALJ found that Hopson was not disabled. (R. 24.)
DISCUSSION
The Commissioner's determination should be affirmed because it is supported by substantial evidence. Hopson contends otherwise, advancing two primary arguments. Hopson asserts that the ALJ erred by (1) giving Dr. Herbert's opinion only little weight, in violation of the “treating physician rule” (Pl. Mem. at 8-13); and (2) determining Hopson's RFC without accounting for her right shoulder impairment and failing “to address her lupus-related fatigue” (Pl. Mem. at 13-15). Although not framed as separate bases for reversal, Hopson also argues (3) that the ALJ erred in concluding that Hopson's lupus was not medically determinable (Pl. Mem. at 2, 5, 9); and (4) that the Appeals Council erred by declining to accept as exhibits the additional medical records submitted on administrative appeal (Pl. Mem. at 3-4). None of these arguments stand up to scrutiny.The Court addresses them in the order in which they fall within the five-step sequential analysis.
To the extent Hopson makes additional arguments in her opposition, the Court has considered them and found them to be without merit.
A. The ALJ Properly Determined That Hopson's Lupus Was Not A Medically Determinable Impairment.
Step 2 of the sequential analysis requires an ALJ to determine whether the claimant has any “medically determinable” impairment. Here, the ALJ found that Hopson's SLE was not medically determinable. Hopson argues that the ALJ's finding is not supported by substantial evidence because Hopson had been diagnosed with lupus, 16 experienced severe fatigue, and continuously was prescribed prednisone, a steroid often taken for lupus. While there is evidence in the Record suggestive of Hopson's having lupus during the relevant period, substantial evidence supports the ALJ's conclusion that the impairment was not medically determinable. The Court therefore has no basis to reject the ALJ's determination in that regard.
A “medically determinable” impairment is one that results from anatomical, physiological, or psychological abnormality “that can be shown by medically acceptable clinical and laboratory diagnostic techniques.” 20 C.F.R. § 416.921; see also Social Security Ruling (SSR) 96-4p, 1996 WL 374187, at *1. As the regulations explain, “a physical or mental impairment must be established by objective medical evidence from an acceptable medical source.” 20 C.F.R. § 416.921. The regulations further caution that the Commissioner “will not use [the claimant's] statement of symptoms, a diagnosis, or a medical opinion to establish the existence of an impairment(s).” Id.
Hopson cites a Second Circuit decision for the proposition that medically acceptable clinical and laboratory diagnostic techniques include a patient's report of complaints. (Pl. Mem. at 8, citing Green-Younger v. Barnhart, 335 F.3d 99, 107 (2d Cir. 2003).) That case, however, did not concern the standard for medically determinable impairments; rather it held that a treating source opinion supported by clinical diagnostic techniques could also rely on subjective complaints. See Green-Younger, 335 F.3d at 107 (“The fact that Dr. Hefland also relied on Green-Younger's subjective complaints hardly undermines his opinion”). In Green-Younger, the court noted that plaintiff's impairments were supported by medically acceptable clinical and laboratory diagnostic techniques. See Id. (referring to American College of Rheumatology guidelines, MRI results, and an unopposed presumption that the diagnosis of a fibromyalgia specialist was based on use of “proper diagnostic techniques”). Here, in contrast, and as discussed further below, the record lacks such support for Hopson's having active lupus after Dr. MacKay concluded that there was no evidence of active SLE in 2013. (R. 615.)
The ALJ found that the Record did not include the requisite objective evidence to show that Hopson had lupus during the relevant period. (R. 19.) In reaching that 17 conclusion, the ALJ specifically pointed to Dr. MacKay's finding in 2013 that, although Hopson may have had lupus years ago and responded well to medication, he did not see evidence of active lupus at that time. (R. 19.) Dr. MacKay's observations were based on a number of objective criteria that indicate the type of clinical and laboratory diagnostics relevant to determining the existence of lupus: protein levels in urine, kidney biopsy, blood tests, and detection of antibodies. (R. 615, 619.) Hopson references no such objective evidence to support a lupus impairment since Dr. MacKay's findings.
Instead, Hopson relies on Dr. Herbert's opinion stating that SLE is one of Hopson's medical problems and that it has caused multiple complications. (See Pl. Mem. at 9-10, R. 477.) But Dr. Herbert's opinion is precisely the type of evidence the regulations say will not be used to assess whether a claimant has a medically determinable impairment. 20 C.F.R. § 416.921 (the agency “will not use ... a medical opinion to establish the existence” of an impairment). Although a medical opinion can be important in assessing how a medically determinable impairment limits a claimant, see generally 20 C.F.R. § 416.927, it is not a substitute for the acceptable clinical or laboratory techniques needed to establish the impairment in the first place. See David F. v. Commissioner of Social Security, No. 20-CV-6479, 2021 WL 2985152, at *3 (W.D.N.Y. July 15, 2021) (“Plaintiff's reliance on the two opinions without discussing any other evidence of record is insufficient for this Court to overturn the ALJ's determination because the regulations clearly provide that a medically determinable impairment cannot be established by a medical opinion, a claimant's statement of symptoms, or a diagnosis, and, instead, must be demonstrated by clinical and laboratory diagnostic techniques, and by objective medical evidence, such as signs and/or laboratory findings obtained from acceptable medical sources”). Nor are 18 Hopson's having been diagnosed with lupus or her experiencing fatigue. 20 C.F.R. § 416.921 (the agency “will not use [the claimant's] statement of symptoms [or] a diagnosis to establish the existence” of an impairment); see Jeffrey G. v. Commissioner, No. 5:20-CV-1016, 2021 WL 4844146, at *6 (N.D.N.Y. Oct. 18, 2021) (affirming ALJ's finding that claimant's carpal tunnel syndrome was not medically determinable based on claimant's report of symptoms in the absence of diagnostic test results).
As evidence of her lupus, Hopson also relies on her continuing to be prescribed prednisone, a steroid often prescribed in connection with lupus. (Pl. Mem. at 4, 10.) The mere fact that one takes medication, however, does not demonstrate whether the person taking the medication has or does not have the underlying condition for which it is prescribed. And medication, particularly in the absence of an objective evaluation of the medication's effect on the body, is not itself a “clinical and laboratory diagnostic technique” for assessing the existence of an impairment.
Substantial evidence supports the ALJ's finding that SLE was not one of Hopson's medically determinable impairments. But even if the ALJ had erred, the error would be harmless. An error at step two of the sequential analysis is harmless where the ALJ proceeds past the second step and considers the combined effects of all of the claimant's conditions in the remaining steps of the sequential evaluation. Reices-Colon v. Astrue, 19 523 Fed.Appx. 796, 798 (2d Cir. 2013); Stanton v. Astrue, 370 Fed.Appx. 231, 233 n.1 (2d Cir. 2010). The ALJ did exactly that.
Hopson conflates the argument that the ALJ erred in finding that SLE was not one of her medically determinable impairments with the argument that the ALJ erred in not finding the SLE impairment to be severe. (Pl. Mem. at 9.) An ALJ reaches the question of severity of an impairment only after it has been established that the impairment exists. 20 C.F.R. § 416.921 (“After we establish that you have a medically determinable impairment(s), then we determine if your impairment(s) is severe”).
In assessing Hopson's RFC, the ALJ considered the symptoms - fatigue in particular - that Hopson attributes to lupus and the medications she takes. (R. 20-21 (“She reported that she is fatigued, she is dizzy most of the time”); R. 21 (“She reported that her side effects include extreme fatigue”).) At the same time, the ALJ found that Hopson's statements concerning the intensity, persistence and limiting effects of her various symptoms were not entirely consistent with the medical evidence and other evidence in the record. (R. 21, 22.) He thus was at liberty to not credit Hopson's statements about the extent of her symptoms. See Rutkowski v. Astrue, 368 Fed.Appx. 226, 230 (2d Cir. 2010) (holding that ALJ did not err in finding claimant less than credible, and commenting that an “ALJ is entitled to find a claimant not credible if his testimony contradicts the record”). Additionally, the ALJ considered Dr. Revan's opinion that Hopson's limitations due to fatigue were only mild to moderate, and afforded little weight to Dr. Herbert's opinion regarding the severity of Hopson's fatigue. (R. 21-22.) Because the ALJ considered the purported side effects of Hopson's lupus and medications in assessing her RFC, any error at step two was harmless.
B. The ALJ Complied With The Treating Physician Rule
The ALJ afforded Dr. Herbert's opinion little weight. Hopson contends that was error because the ALJ failed to afford the opinion controlling weight as required by the “treating physician rule.” The Court does not agree. 20
Under the law applicable to Hopson's application, the treating physician rule generally required deference to the medical opinion of a claimant's treating physician. Halloran v. Barnhart, 362 F.3d 28, 32 (2d Cir. 2004); see Scott v. Commissioner of Social Security, No. 19-CV-01105, 2020 WL 1489830, at *9 (S.D.N.Y. March 27, 2020) (“Treating physicians' opinions are generally accorded deference because treating physicians ‘are likely to be the medical professionals most able to provide a detailed, longitudinal picture' of a claimant's condition and ‘bring a unique perspective to the medical evidence that cannot be obtained from the objective medical findings alone or from reports of individual examinations, such as consultative examinations.'”) (quoting 20 C.F.R. § 416.927(c)(2)). A treating physician's medical opinion is given controlling weight if it is “well supported by medically acceptable techniques and is not inconsistent with substantial evidence in the record.” Rodriguez v. Colvin, No. 12-CV-3931, 2014 WL 5038410, at *17 (S.D.N.Y. Sept. 29, 2014) (citing 20 C.F.R. § 416.927(c)(2)); accord Gonzalez v. Apfel, 61 F.Supp.2d 24, 29 (S.D.N.Y. 1999).
The regulations for evaluating medical opinions have been amended for claims filed on or after March 27, 2017. See 20 C.F.R. §§ 416.927, 416.920c.; Revisions to Rules Regarding the Evaluation of Medical Evidence, 82 Fed.Reg. 5844-01, 2017 WL 168819, at *5844, *5867-68 (Jan. 18, 2017). Hopson filed her claim on August 1, 2016. Accordingly, the earlier rules apply.
If the ALJ gives a treating physician's opinion less than controlling weight, the ALJ must give “good reasons” for doing so. Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999). “[T]o override the opinion of the treating physician, [the Second Circuit has] held that the ALJ must explicitly consider, inter alia: (1) the frequen[c]y, length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency 21 of the opinion with the remaining medical evidence; and, (4) whether the physician is a specialist.” Greek v. Colvin, 802 F.3d 370, 375 (2d Cir. 2015) (per curiam) (alterations in original) (quoting Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013)); see also 20 C.F.R. § 416.927(c) (listing factors). However, a “slavish recitation of each and every factor” is unnecessary “where the ALJ's reasoning and adherence to the regulation are clear, ” Atwater v. Astrue, 512 Fed.Appx. 67, 70 (2d Cir. 2013), and the ALJ's determination will be upheld so long as the “substance of the treating physician rule was not traversed.” Estrella v. Berryhill, 925 F.3d 90, 96 (2d Cir. 2019).
Here, the ALJ provided good reasons for giving little weight to Dr. Herbert's opinion. (R. 22 (As the ALJ noted, the opinion “is vague and does not provide a function by function analysis”).) Dr. Herbert's single, summary paragraph states that Hopson “has had multiple complications from the SLE” but does not specify what those complications may be. (R. 477.) Even though the regulations define a “medical opinion” as a statement of both what an applicant “can still do” despite any impairments and whether the applicant has any impairment-related limitations, Dr. Herbert's letter does not include any statement as to what Hopson still can do. And rather than providing an opinion about any specific impairment-related limitations, Dr. Herbert's letter broadly states that Hopson suffers from continued bouts of fatigue that “makes it very difficult for her to maintain consistent employment” (R. 477), an opinion that is properly reserved for the Commissioner and that will “not be given any special significance.” 20 C.F.R. 416.927(d)(1), (3); see Snell, 177 F.3d 128, 134-35 22 (noting that the final question of disability is reserved to the Commissioner).
In the 2014 Decision (on which the Court does not rely for the instant opinion), a different ALJ also found Dr. Herbert's opinions to be of limited weight and noted that “when Dr. Herbert testified as a medical expert, he stated that he could not comment on the claimant's physical limitations and would only state that the claimant suffers from fatigue.” (R. 260.)
The only supporting objective evidence to which Dr. Herbert's opinion refers is an MRI of Hopson's back, which has no relevance to Hopson's lupus or fatigue. (R. 477 (attributing fatigue to combination of lupus and medication).) And, as explained above, the Record is devoid of any results of “medically acceptable clinical and laboratory diagnostic techniques” to support Dr. Herbert's reference to Hopson having SLE. To the contrary, the only treating doctor who conducted clinical and laboratory tests for lupus concluded that Hopson did not have it. (See R. 19 (ALJ citing R. 615) (“while the claimant may have had lupus years ago and responded well to medication [Dr. MacKay] does not see evidence for active lupus at this time”).) Although that was in 2013, neither Dr. Herbert's treatment notes nor any HHC records reveal any objective clinical or laboratory evidence of active lupus since then.
Hopson correctly points out that the ALJ did not expressly recite every one of the regulatory factors, specifically mentioning the nature and extent of Hopson's treatment relationship with Dr. Herbert, and the frequency of examinations. (Pl. Mem. at 10-11.) The ALJ's analysis, however, provides sufficient assurance that the substance of the treating physician rule “was not traversed.” Estrella, 925 F.3d at 96. As set forth above, the ALJ determined that there was little evidence from the medical record to support Dr. Herbert's opinion, and that Dr. Herbert's opinion was inconsistent with the earlier test results discussed by Dr. MacKay. As for specialization, unlike Dr. MacKay, Dr. Herbert is not a rheumatologist, the specialization that generally treats lupus. Dr. Herbert's specialty thus does not suggest his opinion is entitled to any greater weight than that 23 given by the ALJ. See 20 C.F.R. § 416.927(c)(5) (“We generally give more weight to the medical opinion of a specialist about medical issues related to his or her area of specialty than to the medical opinion of a source who is not a specialist”). That the ALJ did not explicitly discuss Dr. Herbert's specialty - or lack thereof - therefore was harmless.
That is also true with respect to the ALJ's not having explicitly referred to the nature and extent of Hopson's treatment relationship and the frequency of examinations. The medical records demonstrate that Dr. Herbert's treatment of Hopson primarily was focused on her hypertension and other medical issues, rather than fatigue or lupus. (See generally R. 532-640.) Even when Hopson reported intermittent fatigue, the treatment notes do not reflect that Dr. Herbert ever provided treatment for fatigue, other than tapering Hopson's medication dosage in consultation with Dr. MacKay. (See, e.g., R. 556, 570, 576, 602, 615, 634.) And, in approximately 50 visits over the course of more than eight years, Hopson reported intermittent fatigue only seven times. (R. 556, 570, 576-77, 602, 607, 634, 635.) An explicit exposition of the nature, extent, and frequency of Dr. Herbert's treating relationship with Hopson thus would not have changed the outcome. 24
According to HHC medical records, the specific dates on which Hopson reported fatigue are July 6, 2011 (R. 635); August 10, 2011 (R. 634); June 29, 2012 (R. 607); May 17, 2013 (R. 602); February 17, 2016 (R. 576-77); August 5, 2016 (R. 570); August 25, 2017 (R. 556).
The record shows that the ALJ kept duration of relationship and frequency of examinations in mind when evaluating the medical opinions. In affording the opinion of consultative examiner Dr. Revan only partial weight, the ALJ appropriately reasoned that her “findings were based on a single examination, which reduces the longitudinal value of these opinions as they are not based on consistent findings throughout the entire period alleged.” (R. 22.)
One aspect of the ALJ's reasoning with respect to Dr. Herbert's opinion does give the Court pause. As one of the reasons for affording Dr. Herbert's opinion little weight, the ALJ found the opinion inconsistent with Hopson's activities of daily living showing that Hopson could prepare food for herself, do her own laundry, go shopping, visit others, and go up five flights of stairs. (R. 22.) The ALJ should have explained how the performance of those activities was inconsistent with Dr. Herbert's opinion. See Molina v. Colvin, 13-CV-4989, 2014 WL 3445335, at *15 (S.D.N.Y. July 15, 2014) (“There is a big difference[] between an occasional walk or shopping trip and sitting / standing for an eight hour workday”); Woodford v. Apfel, 93 F.Supp.2d 521, 529 (S.D.N.Y. 2000) (explaining that a claimant's performance of basic self-care activities does not contradict assertions of disability). That said, the error was harmless - the ALJ had ample basis to assign the weight he did to Dr. Herbert's opinion even without the reason related to Hopson's daily activities. Accordingly, the ALJ did not err in applying the treating physician rule.
C. The ALJ Properly Determined Hopson's RFC
Hopson challenges the ALJ's RFC finding in two respects. First, Hopson asserts that the ALJ failed to account for Hopson's lupus and associated fatigue. (Pl. Mem. at 13.) Second, Hopson faults the ALJ for failing to mention that Hopson had a right shoulder rotator cuff injury and limited ability to reach with her right arm. (Pl. Mem. at 13-14.) Neither argument can be sustained.
As explained above, the ALJ properly found that lupus was not one of Hopson's medically determinable impairments. Accordingly, there could be no error in not taking lupus or its alleged effects into account when determining Hopson's RFC. An ALJ must consider all impairments, whether severe or nonsevere, in formulating a claimant's RFC. 20 C.F.R. § 416.945(a)(2) (“We will consider all of your medically determinable 25 impairments of which we are aware, including your medically determinable impairments that are not ‘severe [ ]' ... when we assess your [RFC]....”); Parker-Grose v. Astrue, 462 Fed.Appx. 16, 18 (Fed. Cir. 2012) (“RFC determination must account for limitations imposed by both severe and nonsevere impairments”). But whether severe or non-severe, the impairment must be medically determinable. Hopson's lupus was not. In any event, as also explained above, the ALJ did consider Hopson's reported fatigue in assessing her RFC. (R. 20, 21, 22.)
In challenging the ALJ's RFC determination, Hopson focuses primarily on the ALJ's not having mentioned Hopson having a shoulder injury or difficulty reaching with her right arm. (Pl. Mem. at 13-14.) The problem with that argument is that, like Hopson's purported lupus, her alleged shoulder injury is not medically determinable.
The only medical evidence of Hopson's rotator cuff injury is a December 2015 x-ray that showed “high riding of the right humeral head suggestive of underlying rotator cuff injury.” (R. 436.) The radiologist who analyzed the image did not diagnose the injury; rather, he recommended a follow-up MRI “if clinically indicated.” (R. 436.) There is no evidence in the Record that Hopson ever had a shoulder MRI or any other follow-up evaluation to determine if she had a rotator cuff injury. In short, there is no objective medical evidence establishing the existence of an injury to Hopson's shoulder. In the absence of such evidence, a right shoulder impairment is not one of Hopson's medically determinable impairments, and Hopson's complaints of discomfort and wearing a sling do not suffice. See 20 C.F.R. § 416.921.
Moreover, the sole medical examination of Hopson's shoulder, conducted by consulting examiner Dr. Revan, found that Hopson had full range of motion in her 26 shoulders, full strength in the arm, as well as full grip strength and manual dexterity. (R. 474-75.) Dr. Revan opined that Hopson had “no limitation with the upper extremities for fine and gross motor activity.” (R. 475.) There is no opinion to the contrary, not even from Dr. Herbert. And, other than having an x-ray taken, there is no evidence of Hopson ever having been treated for a right shoulder injury. See Navan v. Astrue, 303 Fed.Appx. 18, 20 (2d Cir. 2008) (failure to seek regular treatment for allegedly disabling condition undermined allegations of disability). The ALJ thus did not err in determining Hopson's RFC.
D. The Appeals Council Properly Excluded The Post-Hearing Records
The Appeals Council did not err by declining to accept as exhibits the additional medical records that Hopson failed to submit to the ALJ.
While the Appeals Council will evaluate any evidence it receives, it exhibits and makes part of the official record only evidence that meets specific requirements. Newly submitted evidence thus will not be accepted unless it is new, material, relates to the period in question, and there is a reasonable probability that the evidence would change the outcome of the ALJ's decision. 20 C.F.R. § 416.1470(a)(5). In this case, the Appeals Council reasonably determined that there was not a reasonable probability that the additional records would change the outcome of the ALJ's decision.
The additional records, all from HHC, fall into two categories. One category of 113 pages consisted entirely of copies of HHC documents already included in the record. (R. 2 (“This evidence is not new because it is a copy of records within Exhibits B1F and B5F”).) Being duplicative, this group of records necessarily would not be likely to change the outcome of the ALJ's decision. 27
The second category of additional material consists of 180 pages of HCC records dating as early as February 18, 2012, and as late as March 27, 2019. (R. 2.) The new records relate to Hopson's treatment for various medical conditions, most of which are unrelated to any of the impairment that allegedly underlie Hopson's claim for benefits. (See, e.g., R. 34-35, 80-81, 90-92 (colposcopy), 39-44 (wound care), 70-80, 110-14 (flulike symptoms), 96-106 (left arm pain).) Treatment notes from at least two of the dates of visits reflected in the additional material refer to Hopson's complaints of fatigue. One of those dates - August 18, 2017 (R. 45-55) - is just a week before the fatigue reported in the August 26, 2017 treatment note in the Record. The second date - from October 8, 2018 (R. 107) - adds one more data point for Hopson's reporting fatigue, but represents the only instance of her reporting fatigue during 2018. The ALJ, as explained above, considered Hopson's complaints of fatigue, and there is no reason to believe that records reflecting one or two additional complaints of the same nature would have changed the ALJ's decision.
Hopson nonetheless asserts that the additional records from HHC are material because they contain treatment notes from Dr. Herbert. (Pl. Mem. at 4.) While there are a handful of treatment notes from Dr. Herbert in the records, several are duplicative, and they relate to only two visits, one in February 2011 and one in September 2018, neither of which are relevant to lupus or fatigue. (See R. 30 (gynecology visit); R. 84-86, repeated at R. 87-89, 93-94 (review of lab results and cytology).) Accordingly, the Appeals Council properly concluded that nothing in the additional, non-duplicative records could reasonably have changed the ALJ's analysis. 28
Hopson also emphasizes that the records show that she was taking prednisone, which establishes that her fatigue was medically determinable. (Pl. Mem. at 4-5.) As discussed above, however, the mere fact that Hopson continued to be prescribed prednisone is not the same as “medically acceptable clinical and laboratory diagnostic techniques” required to establish a medically determinable impairment. Moreover, the evidence before the ALJ - including Hopson's hearing testimony and medical records during the relevant period - already established that Hopson was taking prednisone. (See, e.g., R. 135, 535, 602.) The new records from HHC did not add any information that was not already before the ALJ with respect to Hopson's taking prednisone and thus could not be reasonably expected to change the ALJ's decision.
In short, Hopson has failed to show that the Appeals Council erred in determining that there was not a reasonable probability that the new documents submitted to the Appeals Council would have changed the ALJ's decision. Accordingly, the Appeals Council did not err in declining to accept that material as evidence of record. See Graham v. Berryhill, 397 F.Supp.3d 541, 557-60 (S.D.N.Y. 2019) (rejecting complainant's argument that Appeals Council erred in not accepting additional records where those records were cumulative and were unlikely to affect outcome of decision).
CONCLUSION
The ALJ's decision was supported by substantial evidence. Hopson's motion should be DENIED, the Commissioner's motion should be GRANTED, and judgment should be entered in favor of the Commissioner.
DEADLINE FOR OBJECTIONS AND APPEAL
Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(d) of the Federal Rules Of Civil Procedure, the parties shall have fourteen (14) days to file written 29 objections to this Report And Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the Chambers of the Honorable Laura Taylor Swain, United States Courthouse, 500 Pearl Street, New York, New York 10007, and to the Chambers of the undersigned, United States Courthouse, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will result in a waiver of objections and will preclude appellate review. 30