Hitchcock v. Commissioner of Social Security

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_____________________________________
KRISTEN M. H.,
Plaintiff,
v.
No. 1:24-CV-01020
COMMISSIONER OF SOCIAL SECURITY, 	(BKS/PJE)
Defendant.
_____________________________________
APPEARANCES: 	OF COUNSEL:
Olinsky Law Group 	HOWARD D. OLINSKY, ESQ.
250 South Clinton Street, Suite 210
Syracuse, New York 13202
Attorneys for plaintiff
Social Security Administration 	VERNON NORWOOD, ESQ.
Office of the General Counsel 	SHANNON FISHEL, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for defendant
PAUL J. EVANGELISTA
U.S. MAGISTRATE JUDGE
REPORT-RECOMMENDATION AND ORDER1
Kristen M. H.,2 (“plaintiff”) brings this action pursuant to 42 U.S.C. §§ 405(g) and
1383(c)(3) seeking review of a decision by the Commissioner of the Social Security
Administration (“the Commissioner”) denying her applications for disability insurance
1 This matter was referred to the undersigned for Report-Recommendation in accordance with General
Order 18 and N.D.N.Y. L.R. 72.3(e).
2 Pursuant to guidance from the Committee on Court Administration and Case Management of the Judicial
Conference of the United States, which the Northern District of New York adopted in 2018 to better protect
personal and medical information of non-governmental parties, this Report-Recommendation and Order
will identify plaintiff’s last name by initial only.
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benefits (“DIB”) and supplemental security income (“SSI”). 	See Dkt. No. 1. 	Plaintiff
moves 	for 	the 	Commissioner’s 	decision to 	be 	vacated and 	remanded 	for 	further
proceedings. See Dkt. No. 10. The Commissioner moves for the decision to be affirmed.
See Dkt. No. 18. For the following reasons, it is recommended that plaintiff’s cross-motion
be granted, the Commissioner’s cross-motion be denied, and the Commissioner’s
decision be remanded for further proceedings.3
I. Background
On September 25, 2019, plaintiff filed Title II and Title XVI applications for SSI and
DIB, alleging a disability onset date of June 19, 2019. See T. at 231-44.4 On December
20, 2019, the Social Security Administration (“SSA”) denied plaintiff’s claims. 	See id. at
129-38. On January 22, 2020, plaintiff sought reconsideration, which the SSA denied on
July 8, 2020. See id. at 144-68. Plaintiff appealed and requested a hearing. See id. at
169-70. 	On October 29, 2020, a hearing was held before Administrative Law Judge
(“ALJ”) Dale Black-Pennington. See id. at 33-64. On December 3, 2020, the ALJ issued
an unfavorable decision. See id. at 12-32. On June 24, 2024, the Appeals Council denied
plaintiff’s request for review, and the decision became final. See id. at 1-6. Plaintiff timely
commenced this action on August 20, 2024. See Dkt. No. 1.
II. Legal Standards
A. Standard of Review
3 Under General Order 18, once issue has been joined, an action such as this is considered procedurally
as if cross-motions for judgement on the pleadings have been filed pursuant to Rule 12(c) of the Federal
Rules of Civil Procedure.
4 “T.” followed by a number refers to the pages of the administrative transcript. See Dkt. No. 8. Citations
to the administrative transcript refer to the pagination in the bottom, right-hand corner of the page. Citations
to the parties’ briefs refers to the pagination generated by the Court’s electronic filing and case management
program, located at the header of each page.
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“In reviewing a final decision of the Commissioner, a district court may not
determine de novo whether an individual is disabled.” 	Joseph J. B. v. Comm’r of Soc.
Sec., No. 1:23-CV-652 (BKS/CFH), 2024 WL 4217371, at *1 (N.D.N.Y. Aug. 29, 2024),
report and recommendation adopted, No. 1:23-CV-652 (BKS/CFH), 2024 WL 4216048
(N.D.N.Y. Sept. 17, 2024) (citing 42 U.S.C. §§ 405(g), 1388(c)(3)); see also Wagner v.
Sec’y of Health & Human Servs., 906 F.2d 856, 860 (2d Cir. 1990). 	“Rather, the
Commissioner’s determination will only be reversed if the correct legal standards were
not applied, or it was not supported by substantial evidence.” 	Id. (citing Johnson v.
Bowen, 817 F.2d 983, 985-86 (2d Cir. 1987)); see also Berry v. Schweiker, 675 F.2d 464,
467 (2d Cir. 1982). “Substantial evidence is ‘more than a mere scintilla,’ meaning that in
the record one can find ‘such relevant evidence as a reasonable mind might accept as
adequate to support a conclusion.’” Id. (quoting Halloran v. Barnhart, 362 F.3d 28, 31 (2d
Cir. 2004) (per curiam) (citing Richardson v. Perales, 402 U.S. 389, 401 (1971))). 	“The
substantial evidence standard is a very deferential standard of review . . . [This] means
once an ALJ finds facts, we can reject [them] only if a reasonable factfinder would have
to conclude otherwise.” 	Id. (quoting Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443,
448 (2d Cir. 2012) (per curiam)) (internal quotations marks omitted). 	“Where there is
reasonable doubt as to whether the Commissioner applied the proper legal standards,
the decision should not be affirmed even though the ultimate conclusion is arguably
supported by substantial evidence.” Id. (citing Martone v. Apfel, 70 F. Supp. 2d 145, 148
(N.D.N.Y. 1999) (citing Johnson, 817 F.2d at 986)). 	“However, if the correct legal
standards were applied and the ALJ’s finding is supported by substantial evidence, such
finding must be sustained ‘even where substantial evidence may support the plaintiff’s
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position and despite that the court’s independent analysis of the evidence may differ from
the [Commissioner’s].’” Id. (quoting Rosado v. Sullivan, 805 F. Supp. 147, 153 (S.D.N.Y.
1992)).
B. Determination of Disability
“Every individual who is under a disability shall be entitled to a disability . . . benefit
. . . .” 	42 U.S.C. § 423(a)(1)(E). 	Disability is defined as the “inability to engage in any
substantial gainful activity by reason of any medically determinable physical or mental
impairment . . . which has lasted or can be expected to last for a continuous period of not
less than 12 months[.]” 	Id. § 423(d)(1)(A). 	“A medically-determinable impairment is an
affliction that is so severe that it renders an individual unable to continue with his or her
previous work or any other employment that may be available to him or her based upon
age, education, and work experience.” Joseph J. B., 2024 WL 4217371, at *2 (citing 42
U.S.C. § 423(d)(2)(A)). “Such an impairment must be supported by ‘medically acceptable
clinical and laboratory diagnostic techniques.’” 	Id. (citing 42 U.S.C. § 423(d)(3)).
“Additionally, the severity of the impairment is ‘based on objective medical facts,
diagnoses[,] or medical opinions inferable from [the] facts, subjective complaints of pain
or disability, and educational background, age, and work experience.’” 	Id. (quoting
Ventura v. Barnhart, No. 04-CV-9018 (NRB), 2006 WL 399458, at *3 (S.D.N.Y. Feb. 21,
2006) (citing Mongeur v. Heckler, 722 F.2d 1033, 1037 (2d Cir. 1983))).
The Second Circuit employs a five-step analysis, based on 20 C.F.R. § 404.1520,
to determine whether an individual is entitled to disability benefits:
First, the [Commissioner] considers whether the claimant is currently
engaged in substantial gainful activity.
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If he [or she] is not, the [Commissioner] next considers whether the claimant
has a “severe impairment” which significantly limits his [or her] physical or
mental ability to do basic work activities.
If the claimant suffers such an impairment, the third inquiry is whether,
based solely on medical evidence, the claimant has an impairment which is
listed in Appendix 1 of the regulations. If the claimant has such an
impairment, the [Commissioner] will consider him [or her] disabled without
considering 	vocational 	factors 	such 	as 	age, 	education, 	and 	work
experience; the [Commissioner] presumes that a claimant who is afflicted
with a “listed” impairment is unable to perform substantial gainful activity.
Assuming the claimant does not have a listed impairment, the fourth inquiry
is whether, despite the claimant’s severe impairment, he [or she] has the
residual functional capacity to perform his [or her] past work.
Finally, if the claimant is unable to perform his [or her] past work, the
[Commissioner] then determines whether there is other work which the
claimant could perform . . .
Berry, 675 F.2d at 467 (spacing added). 	“If at any step a finding of disability or non-
disability can be made, the SSA will not review the claim further.” Joseph J. B., 2024 WL
4217371, at *2 (quoting Barnhart v. Thomas, 540 U.S. 20, 24 (2003)). “The plaintiff bears
the initial burden of proof to establish each of the first four steps.” Id. (citing DeChirico v.
Callahan, 134 F.3d 1177, 1180 (2d Cir. 1998) (citing Berry, 675 F.2d at 467)). 	“If the
inquiry progresses to the fifth step, the burden shifts to the Commissioner to prove that
the plaintiff is still able to engage in gainful employment somewhere.” 	Id. (citing
DeChirico, 134 F.3d at 1180 (citing Berry, 675 F.2d at 467)).
III. The ALJ’s Decision
Applying the five-step disability sequential evaluation, the ALJ determined that
plaintiff “has not engaged in substantial gainful activity since June 19, 2019, the alleged
onset date.” T. at 18. At step two, the ALJ found that plaintiff “has the following severe
impairments: epilepsy, depression disorder, and anxiety disorder.” Id. At step three, the
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ALJ determined that plaintiff “does not have an impairment or combination of impairments
that meets or medically equals the severity of one of the listed impairments in 20 CFR
Part 404, Subpart P, Appendix 1.” Id.
Before reaching step four, the ALJ concluded that plaintiff retained the residual
functional capacity (“RFC”) to
to perform a full range of work at all exertional levels but with the following
nonexertional limitations: Occasionally climb ramps/stairs, balance, stoop,
kneel, crouch and crawl. 	Never climb ladders/ropes/scaffolds[.] 	Avoid
concentrated exposure hazards such as unprotected heights/heavy moving
mechanical parts or machinery and industrial vibrations. 	Must avoid
concentrated exposure to temperature extremes, bright lights, and loud
noises, motorized vehicle, diving, or swimming[.] 	[A]ble to understand,
remember, and apply (URA) simple and some detailed instructions and
directions. [A]ble to perform routine tasks . . . have occasional contact with
co-workers and the public . . . and . . . occasionally manage change to the
work place environment.
T. at 20. At step four, the ALJ found that plaintiff “is unable to perform any past relevant
work.” Id. at 25. At step five, the ALJ determined that “[c]onsidering the claimant’s age,
education, work experience, and residual functional capacity, there are jobs that exist in
significant numbers in the national economy that the claimant can perform.” Id. The ALJ
concluded that plaintiff “has not been under a disability, as defined in the Social Security
Act, from June 19, 2019, through the date of this decision.” Id. at 26.
IV. Discussion
A. The Parties’ Arguments
Plaintiff argues that the ALJ erred by relying on the vocational expert’s (“VE”)
testimony as it was contradictory, inconsistent, and precluded “meaningful judicial review.”
Dkt. No. 10 at 5; see id. at 9. 	Plaintiff further argues that the VE’s testimony “strongly
suggests, if not outright admits, that [she] could not perform the three office setting jobs
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based on the proper RFC limitation for no concentrated exposure to ‘bright’ lights.” Id. at
9 (citing T. at 61-62). Plaintiff explains that the ALJ noted that she suffered from epilepsy
and migraines and limited her RFC to exclude jobs that required concentrated exposure
to bright lights. See id. at 7 (citing T. at 20, 58). 	However, the VE interpreted the ALJ’s
bright light limitation as meaning “unusually bright lights” or “extremely bright lights,” a
“less restrictive” limitation than assigned by the ALJ. Id. at 7-8 (citing T. at 61-62). Plaintiff
claims that all jobs the VE testified she could perform, i.e. mail clerk, marker II, and an
office helper, include exposure to bright light. See id. at 9. Plaintiff also contends that the
VE testified that working as an office helper “may require ‘some photocopying’” and
“photocopying is an activity that exposes the worker to ‘unusually bright lights.” 	Id.
(quoting T. at 61-62).
The Commissioner argues that the ALJ’s determination should be affirmed. See
generally Dkt. No. 18. 	The Commissioner states that the VE’s “testimony provides
substantial evidence in support of the ALJ’s step-five finding.” Dkt. No. 18 at 10. The
Commissioner claims that, even if the VE’s testimony “was somewhat imprecise,” a
“reasonable reading of the testimony establishes that the [VE] specifically eliminated from
consideration any occupations that required exposure to lighting that was beyond a
normal or average level of brightness, with normal brightness being established as
florescent office lighting that are ‘bright enough to be working and see.’” 	Id. (citing T. at
62). 	The Commissioner asserts that “the [VE’s] experience provides a sufficient
foundation for his testimony that Plaintiff remained able to perform the identified
occupations, particularly where the DOT did not address lighting,” id. (citations omitted),
and that “[p]laintiff prefers her own interpretation of bright lighting.” 	Id. at 13. 	The
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Commissioner claims that “beyond [plaintiff’s] own testimony, there was no evidence she
was sensitive to lighting.” 	Id. at 13. 	The Commissioner avers that plaintiff “never
complained of the lighting in any medical office setting”; “went outside daily”; and engages
in craft activities daily, which “presumably would require normal or brighter lighting to work
with the small jewelry components.” Id. at 12 (internal citations omitted).
B. Vocational Expert’s Testimony and Step Five
“At step five of the disability analysis, the burden of proof shifts to the ALJ to
demonstrate that there is other work in the national economy that plaintiff can perform.”
Reisinger v. Comm’r of Soc. Sec., No. 7:16-CV-428 (ATB), 2017 WL 2198965, at *9
(N.D.N.Y. May 18, 2017) (citing Butts v. Barnhart, 388 F.3d 377, 383 (2d Cir. 2004)). “In
the ordinary case, the ALJ carries out this fifth step by applying the applicable Medical-
Vocational Guidelines (‘the Grids’).” 	Id. (citing Butts, 388 F.3d at 383) (citing Rosa v.
Callahan, 168 F.3d 72, 78 (2d Cir. 1999))). “But if plaintiff has non-exertional impairments,
and if those non-exertional impairments ‘significantly limit the range of work’ permitted by
his exertional impairments, the ALJ may be required to consult a [VE].” Id. (quoting Bapp
v. Bowen, 802 F.2d 601, 605-06 (2d Cir. 1986)).
If the ALJ consults with a VE, the VE may “opine on the jobs a hypothetical person
of the claimant’s age, education, and RFC could perform in the national economy.” Peter
W. v. Comm’r of Soc. Sec., No. 6:20-CV-1551 (TWD), 2022 WL 523744, at *11 (N.D.N.Y.
Feb. 22, 2022) (citing 20 C.F.R. § 404.1560(b)(2)) (“[A] vocational expert . . . may offer
expert opinion testimony in response to a hypothetical question about whether a person
with the physical and mental limitations imposed by the claimant’s medical impairments
can meet the demands of the claimant’s previous work.”); accord Bapp, 802 F.2d at 606
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(“If nonexertional limitations significantly diminish [the claimant’s] ability to perform the full
range of ‘light work,’ then the ALJ should require the Secretary to present either the
testimony of a [VE] or other similar evidence regarding the existence of jobs in the national
economy for an individual with claimant’s limitations.”).
“The ALJ may rely on a VE’s testimony regarding the availability of work as long
as the hypothetical facts the expert is asked to consider are based on substantial
evidence and accurately reflect the plaintiff’s limitations.” Reisinger, 2017 WL 2198965,
at *9 (citing Calabrese v. Astrue, 358 F. App’x. 274, 276 (2d Cir. 2009) (summary order)).
“Where the hypothetical is based on an ALJ’s RFC analysis, which is supported by
substantial facts, the hypothetical is proper.” Id. (citing Calabrese, 358 F. App’x. at 276-
277).
“When assessing the requirements of a particular occupation, an ALJ should
primarily rely upon the DOT [Dictionary of Occupational Titles], but may also use VE
testimony to resolve more complex vocational issues.” Peter W., 2022 WL 523744, at *11
(citing Antonio P. v. Comm’r of Soc. Sec., No. 3:21-CV-62 (SALM), 2021 WL 5768545, at
*8 (D. Conn. Dec 6, 2021) (citing SSR 00-4p)). “SSR 00-4p provides VE testimony should
generally be consistent with the occupational information contained in the DOT, and when
there is an apparent unresolved conflict, the ALJ must obtain a reasonable explanation
for the conflict before relying on the [vocational expert’s testimony].” Id. (quoting Murray
v. Colvin, No. 15-CV-6384 (MWP), 2016 WL 5335545, at *13 (W.D.N.Y. Sept. 23, 2016)
(quoting SSR 00-4p,)) (internal quotation marks omitted). “Where, however, the DOT is
silent on an issue, there is no actual conflict between the VE testimony and the DOT” and
an ALJ may rely on a VE’s testimony. 	Id. (citing Reisinger, 2017 WL 2198965, at *10);
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Pahl v. Colvin, No. 12-CV-3168 (WMS), 2013 WL 3761545, *6 (W.D.N.Y. July 16, 2013)
(internal quotation marks omitted) (“[I]t is not error for the ALJ to rely on the VE’s testimony
. . . so long as there is no actual conflict between the VE’s testimony and the [DOT]. No
such conflict existed here because the DOT does not address the” limitation in question.).
C. Analysis
As discussed above, the ALJ determined that plaintiff “has the [RFC] to perform a
full range of work at all exertional levels” but with the “nonexertional limitation[]” that she
“[m]ust avoid concentrated exposure to . . . bright lights . . . .” 	T. at 20. 	The ALJ then
relied on the VE’s testimony to conclude that based on plaintiff’s “age, education, work
experience, and [RFC]” she could work as a mail clerk, marker II, or office helper. Id. at
26.
During plaintiff’s hearing, she was asked about any limitations on her ability to
work. 	See T. at 43. 	Plaintiff testified that she was limited by light and that “bright lights
give [her] headaches.” Id. at 43, 52. More specifically, she stated that her light sensitivity
is such that “every light in [her] house has dimmers on them so [she] can dim the lights.”
Id. at 52. Plaintiff also testified that she cannot use a computer for “more than a half hour”
and if she does use screens, she “dim[s] it all the way down.” 	Id. 	The ALJ then asked
the VE hypotheticals, including a claimant that “[m]ust avoid exposure to . . . bright lights.”
Id. at 58. Plaintiff’s representative asked the VE:
Q: 	And for clarification, the Judge included bright lights and loud noises.
What, how a[re] bright lights and loud noises quantified in your
experience or in the DOT?
A: 	The DOT does quantify noise levels. It does not address bright lights
per se. so, I applied any indication, any environments, which might
require unusually bright lights, or flashing lights such as using a
photocopy machine, or cameras, that sensitive environment.
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Q: 	You did not consider overhead florescent lights for example in an
office setting. Do you consider that normal light as opposed to bright
light?
A: 	Yes, I consider that normal light.
Q: 	And does that vary from environment to environment overhead
lighting?
A: 	To some extent, yes it would.
Q: 	And would that potentially erode the numbers that you provided?
A: 	I mean it varies, no I don’t think so. I think any office is going to have
a, you know, with some variation but it’s not going to be extremely
bright. It’s going to be bright, you now, bright enough to be working
and see, but you know, I guess that’s subject to interpretation.
Q: 	Okay. And does the mail clerk and office worker job require the use
or sometimes, I shouldn’t some sometimes I apologize. 	Does it
require the use of keyboard, computer equipment, or photocopy
machines as you’ve indicated?
A: 	Keyboards, yes. 	Not necessarily photocopy machines the offer
helper might do some photocopying but typically not.
T. at 61-62.
As the DOT does not consider light limitations, there is no conflict between the
VE’s testimony and the DOT, and the ALJ is permitted to rely on the VE’s testimony in
determining whether there are jobs in the national economy that plaintiff can perform.
See Berry, 675 F.2d at 467; Joseph J. B., 2024 WL 4217371, at *2 (citing DeChirico, 134
F.3d at 1180 (citing Berry, 675 F.2d at 467)); Peter W., 2022 WL 523744, at *11 (citing
Reisinger, 2017 WL 2198965, at *10); Pahl, 2013 WL 3761545, *6. 	However, the
undersigned concludes that the ALJ erred in relying on the VE’s testimony because the
VE’s testimony does not “accurately reflect the plaintiff’s limitations.” Reisinger, 2017 WL
2198965, at *9 (citing Calabrese, 358 F. App’x. at 276). The VE opined that despite her
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light limitation, plaintiff had the ability to work as a mail clerk, marker II, or office helper.
See T. at 58-60. Yet, the VE’s analysis of plaintiff’s light limitation is unclear at best.
The ALJ defined plaintiff’s light limitation as avoiding “concentrated exposure” to
“bright light.” 	T. at 58. 	Instead, the VE focused his analysis on “unusually bright lights”
and “flashing lights.” Id. at 61. It appears that the VE added additional, more restrictive
conditions on plaintiff’s light limitation the ALJ established and did not explain whether
“unusually bright lights” and “flashing lights” are the same as “bright light.” Id. at 58-63.
Further, the VE’s testimony regarding plaintiff’s ability to work in an office setting,
considering her light limitation, is vague and inconsistent. It is apparent that working as
a mail clerk, marker II, or office helper occurs in an office setting. 	Plaintiff’s counsel
questioned the VE about the use of “overhead florescent lights” in office settings, but the
VE was unable to explain whether overhead florescent light constitutes “bright light.” Id.
at 62. Although the VE initially stated that overhead florescent light is “normal light” as
opposed to “bright light,” his explanation then described office lighting as “bright” but not
“extremely bright” and “subject to interpretation.” 	Id. at 62. 	This explanation is
inconsistent and frustrates meaningful review. 	See Benbanisti v. Comm’r of Soc. Sec.,
No. 18-CV-0088 (WFK), 2019 WL 13214712, at *4 (E.D.N.Y. Oct. 4, 2019) (“That
testimony . . . is muddled – leaving this Court unable to render a meaningful review.”).
Moreover, the VE testified that working as a mail clerk and office helper required
the use of computers. T. at 62. However, neither the VE, nor ALJ, reconciled computer
use at work with plaintiff’s testimony that she could only use computer screens for thirty
minutes or less and at a low dimness setting. Id. at 52. Similarly, as plaintiff points out,
the VE testified that “using a photocopy machine” involves “unusually bright lights” or
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“flashing lights.” Id. at 61-62. If all office settings would expose plaintiff to bright light, the
mail clerk or office helper roles require use of computers, and an office helper may be
required to complete “some photocopying,” it is unclear how plaintiff could engage in
employment as either a mail clerk, marker II, or office helper because all of these job titles
potentially involve the “concentrated exposure to . . . bright lights.” T. at 20, 62.
Therefore, as the VE’s testimony is vague and inconsistent, and the ALJ relied on
the VE’s testimony, the ALJ’s decision is not supported by substantial evidence, and the
undersigned recommends remanding this matter. 	See T. at 26; see Joseph J. B., 2024
WL 4217371, at *1; June S. v. Comm’r of Soc. Sec., No. 5:17-CV-669 (DJS), 2018 WL
3626423, at *7 (N.D.N.Y. July 27, 2018) (remanding because “the vague and somewhat
inconsistent testimony of the VE” raised questions about the VE’s analysis); Wojcik v.
Colvin, No. 1:15-CV-0641 (MAT), 2016 WL 6775301, at *2 (W.D.N.Y. Nov. 16, 2016)
(internal citation omitted) (“The VE’s testimony . . . was confusing, . . . and it is therefore
unclear whether the ALJ’s reliance on the VE’s testimony supported his ultimate finding
that plaintiff could perform her past relevant work.”); Rosa v. Colvin, No. 3:12-CV-0170
(LEK/TWD), 2013 WL 1292145, at *9-10 (N.D.N.Y. Mar. 27, 2013) (remanding because
the VE’s testimony regarding the numbers of jobs nationally and regionally was unclear
and did not constitute substantial evidence); Marvin v. Colvin, No. 3:12-CV-1779 (GLS),
2014 WL 1293509, at *10 (N.D.N.Y. Mar. 31, 2014) (same).
V. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby:
RECOMMENDED, that plaintiff’s cross-motion (Dkt. No. 10) be GRANTED; and it
is further
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RECOMMENDED, 	that 	the 	Commissioner’s 	cross-motion 	(Dkt. 	No. 	18) 	be
DENIED, and the Commissioner’s decision be reversed and remanded for further
proceedings consistent with this Report-Recommendation and Order; and it is
ORDERED, that the Clerk serve a copy of this Report-Recommendation and Order
on all parties in accordance with Local Rules.
IT IS SO ORDERED.
Pursuant to U.S.C. §636(b)(1) and Local Rule 72.1(c), the parties have fourteen
days within which to file written objections to the foregoing report. Such objections shall
be filed with the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN
FOURTEEN (14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette,
984 F.2d 85, 89 (2d Cir. 1993) (citing Small v. Secretary of Health and Human Servs., 892
F.2d 15 (2d Cir. 1989)); 28 U.S.C. §636(b)(1); FED. R. CIV P. 6(a), 6(e), 72.
Dated: December 5, 2025
Albany, New York
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