Rosario v. O'Malley

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
___________________________________________
JOSEPH M. R.,
Plaintiff,
v. 	5:24-CV-1065
(FJS/ML)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
____________________________________________
APPEARANCES 	OF COUNSEL
HILLER COMERFORD INJURY 	JUSTIN M. GOLDSTEIN, ESQ.
& DISABILITY LAW 	IDA COMERFORD, ESQ.
6000 North Bailey Avenue – Suite 1a
Amherst, New York 14226
Attorneys for Plaintiff
SOCIAL SECURITY ADMINISTRATION 	JASON P. PECK, ESQ.
OFFICE OF GENERAL COUNSEL 	VERNON NORWOOD, ESQ.
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for Defendant
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court are Magistrate Judge Lovric's Report-Recommendation, see
Dkt. No. 17, Plaintiff's objections thereto, see Dkt. No. 18, and Defendant's response to Plaintiff's
objections, see Dkt. No. 20.
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II. BACKGROUND
Plaintiff brought this action under pursuant to 42 U.S.C. 42 U.S.C. § 405(g). He sought
judicial review of Defendant's final decision denying his application for Disability Insurance
Benefits ("DIB"). This Court referred the matter to Magistrate Judge Lovric for a Report-
Recommendation.
Both parties filed briefs, see Dkt. Nos. 12, 15, 16. After a thorough review of the parties'
arguments, the Administrative Record ("AR"), and the ALJ's decision denying Plaintiff's
application, Magistrate Judge Lovric issued a Report-Recommendation in which he
recommended that the Court deny Plaintiff's motion for judgment on the pleadings, grant
Defendant's motion for judgment on the pleadings, and affirm the Commissioner's decision. See
generally Dkt. No. 17. Plaintiff timely filed objections to those recommendations, see Dkt. No.
18; and Defendant filed a memorandum of law in opposition to Plaintiff's objections, see Dkt.
No. 20.
III. DISCUSSION
A. 	Initial arguments before Magistrate Judge Lovric
In his brief, Plaintiff raised several challenges to the ALJ's disability determination. He
argued that the ALJ failed to evaluate his subjective allegations and testimony properly. See Dkt.
No. 12 at 23-25. He also argued that the ALJ did not properly evaluate the available medical
opinion evidence which resulted in an RFC determination that was not supported by substantial
evidence. See id. at 10-23. Finally, Plaintiff argued that the ALJ did not properly investigate
conflicts between the Vocational Expert ("VE")'s testimony and the Dictionary of Occupational
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Titles ("DOT"), resulting in a step-five determination that was not supported by substantial
evidence. See id. at 6-10.
To the contrary, Defendant argued that the ALJ properly evaluated all of the record
evidence, resulting in an RFC and disability determination that were supported by substantial
evidence. See Dkt. No. 15 at 5-19.
B. 	Plaintiff's objections to Magistrate Judge Lovric's Report-Recommendation
In his objections to Magistrate Judge Lovric's Report-Recommendation, Plaintiff admits
that he is renewing the arguments he made in his brief and his reply brief and is relying on the
procedural status and statement of facts that he provided in his brief. See Dkt. No. 18 at 1.
C. 	Defendant's response to Plaintiff's objections
Defendant responds to Plaintiff's objections by noting that these objections "merely
rehash challenges which Judge Lovric considered and rejected." See Dkt. No. 20 at 1.
Furthermore, Defendant asserts that "[P]laintiff does not identify any material errors in the R&R
nor the ALJ's evaluation . . . [and], therefore, [t]he Court . . . should dismiss Plaintiff's objections
and adopt Judge Lovric's thorough and well-reasoned R&R in its entirety because Plaintiff has
not shown any material error either in the R&R []or the ALJ's decision." See id.
D. 	Standard of review
The Court reviews de novo those portions of a magistrate judge's report and
recommendations that have been properly preserved with a specific objection. See Petersen v.
Astrue, 2 F. Supp. 3d 223, 228 (N.D.N.Y. 2012) (citing Fed. R. Civ. P. 72(b)(2); 28 U.S.C.
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§ 636(b)(1)(C)). "To be 'specific,' the objection must, with particularity, 'identify [1] the
portions of the proposed findings, recommendations, or report to which it has an objection and
[2] the basis for the objection.'" Id. (quoting N.D.N.Y. Local Rule 72.1(c)) (footnote omitted). If
the parties do not file any specific objections, this Court reviews a magistrate judge's report-
recommendation for clear error. See id. at 229 (citing Fed. R. Civ. P. 72(b), Advisory Committee
Notes: 1983 Addition). Likewise, if an objection simply rehashes "the same arguments made by
the objecting party in its original papers submitted to the magistrate judge, the Court subjects that
portion of the report-recommendation challenged by those arguments to only a clear error
review." Id. at 228-29 & n.6 (collecting cases). "'When performing such a "clear error" review,
"the court need only satisfy itself that there is no clear error on the face of the record in order to
accept the recommendation."'" Dezarea W. v. Comm'r of Soc. Sec., No. 6:21-CV-01138
(MAD/TWD), 2023 WL 2552452, *1 (N.D.N.Y. Mar. 17, 2023) (quoting Canady v. Comm'r of
Soc. Sec., No. 1:17-CV-0367, 2017 WL 5484663, *1 n.1 (N.D.N.Y. Nov. 14, 2017) (citing Fed.
R. Civ. P. 72(b), Advisory Committee Notes: 1983 Addition; Batista v. Walker, No. 94-CV-2826,
1995 WL 453299, *1 (S.D.N.Y. July 31, 1995))). After appropriate review, "the court may
accept, reject or modify, in whole or in part, the findings or recommendations made by the
magistrate judge." 28 U.S.C. § 636(b)(1)(C).
E. 	Analysis
As Plaintiff concedes, his objections to Magistrate Judge Lovric's recommendations are,
in sum and substance, the same arguments that he raised in his initial brief. Thus, the Court need
only satisfy itself that there is no clear error on the face of the record.
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After establishing the correct legal standard for analyzing a plaintiff's subjective
complaints of pain, Magistrate Judge Lovric found that substantial evidence supported the ALJ's
analysis of Plaintiff's subjective complaints. First, he found that Plaintiff's argument that the ALJ
had ignored his description of his symptoms and the resulting functional limitations in favor of a
less restrictive RFC determination was based on a selective reading of the medical record and a
misrepresentation of his activities of daily living was "contradicted by the ALJ's decision, which
include[d] an extensive discussion of relevant treatment notes, including Plaintiff's subjective
assessments of his own condition and the evaluation of multiple medical professionals." See
Dkt. No. 17 at 10 (citing T. 13-15). Magistrate Judge Lovric pointed to several parts of the
Administrative Record that supported the ALJ's decision in this regard. See id. (citing T. 13-15;
T. 15, 403, 980; T. 14, 377, 412, 420, 504, 544, 643, 645, 733, 766-767, 794, 1006-1007).
Magistrate Judge Lovric also noted that,
[i]n addition to the longitudinal medical record, the ALJ also
considered Plaintiff's statements regarding his daily activities
including childcare and taking care of his home, along with
treatment notes from December 2020, March 2021, October 2021,
December 2021, and January 2022 wherein Plaintiff described an
increased ability to sit, stand, walk, and engage in ordinary
physical activities such as grocery shopping as he progressed in
treatment.
See id. at 11-12 (citing T. 363, 378, 389, 451, 538, and 544) (footnote omitted).
Magistrate Judge Lovric found that "[t]his coincided with medical professionals who
found an increased ability to perform work tasks, including lifting up to forty pounds to shoulder
level, and up to twenty pounds overhead, and Plaintiff's participation in vocational training to
return to the workforce." See id. at 12 (citing T. 1004-1005, 1014).
Based on this record evidence, Magistrate Judge Lovric concluded that "the ALJ's
decision and the hearing transcript demonstrate[d] an appropriate evaluation of Plaintiff's
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subjective complaints, by comparing them to Plaintiff's daily activities, his medical treatments
and follow-up care, pain medication, imaging reports, and the medical opinion evidence." See
id. (citing Judelsohn v. Astrue, No. 11-CV-388S, 2012 WL 2401587, at *6 (W.D.N.Y. June 25,
2012) ("Failure to expressly consider every factor set forth in the regulations is not grounds for
remand where the reasons for the ALJ's determination of credibility are sufficiently clear and
specific to conclude that he considered the entire evidentiary record.")).
Finally, Magistrate Judge Lovric stated that "[t]he ALJ recognized that Plaintiff still
experienced neck and arm pain at varying degrees but accepted the consensus of multiple
medical professionals that this pain did not preclude Plaintiff from performing a reduced level of
light work." See id. (citing Dumas v. Schweiker, 712 F.2d 1545, 1552 (2d Cir. 1983) (". . .
disability requires more than mere inability to work without pain. To be disabling, pain must be
so severe, by itself or in conjunction with other impairments, as to preclude any substantial
gainful employment.")). In sum, Magistrate Judge Lovric concluded that, "because the ALJ's
findings are supported by substantial evidence, [the ALJ's] decision to discount Plaintiff's
subjective testimony is entitled to substantial deference." See id. (citing Wendy L. B. v. Kijakazi,
No. 5:22-CV-0708 (DNH/DEP), 2023 WL 3728557 at *7 (N.D.N.Y. May 5, 2023), rep't and rec.
adopted, 2023 WL 3722011 (N.D.N.Y. May 30, 2023)).
Next, Magistrate Judge Lovric reviewed the ALJ's evaluation of the medical opinion
evidence. He began by summarizing the relevant medical opinions in the record and the ALJ's
evaluation of each of those opinions. See id. at 13. In doing so, he summarized the medical
opinions of Consultative Examiner Dr. Elke Lorensen, State Agency Medical Consultant Dr. T.
Schmidt-Deyoung, State Agency Medical Consultant Dr. M. Kirsch, and Independent Medical
Examiner Dr. Daniel Carr. See id. at 13-17.
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Next, he discussed the ALJ's evaluation of the relevant medical opinions. In that regard,
he noted that "the ALJ summarized treatment notes from 2021, 2022, and 2023 that documented
an improvement in Plaintiff's functional limitations as he responded to a treatment regimen that
included physical therapy, chiropractic treatment, epidural injections, and pain medication." See
Dkt. No. 17 at 22 (citing T. 13-14). Magistrate Judge Lovric explained that, in the ALJ's
"evaluation of the medical opinions . . ., the ALJ explained that the opinions of Dr. Lorensen, Dr.
Schmidt-Deyoung, and Dr. Kirsch were 'consistent with other substantial evidence, including the
evidence . . . regarding the claimant's positive response to non-surgical treatments, as well as the
functional capacity suggested by the claimant's activities of daily living.'" See id. at 22 (citing T.
15). After doing so, he found that, "[i]n light of the ALJ's thorough evaluation of the treatment
records that clearly informed his evaluation of the medical opinion evidence, this Court can
readily glean how the ALJ weighed the consistency and supportability factors of the medical
opinions addressing Plaintiff's physical limitations." See id. Thus, he concluded that, "even if
this Court were to agree with Plaintiff that the ALJ committed a procedural error, such error
would be harmless." See id. (citing John L.M. v. Kijakazi, No. 5:21-CV-368 (BKS/TWD), 2022
WL 3500187, *3 (N.D.N.Y. Aug. 18, 2022) (". . . reading the ALJ's decision as a whole, the
Court can glean the ALJ's consideration of the consistency of [the medical] opinion from his
analysis of the medical evidence showing benign physical examinations . . . . The Court therefore
concludes that the substance of the regulation was not traversed and the ALJ's procedural error in
addressing the consistency factor does not require remand.")). Accordingly, Magistrate Judge
Lovric concluded that "the record before this Court establishes that the ALJ resolved conflicts
between the objective medical record, medical opinion evidence, and hearing testimony by
placing the greatest reliance on that evidence that he deemed most consistent with Plaintiff's
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overall treatment record and activities. In doing so, the ALJ appropriately evaluated the
conflicting medical evidence and plaintiff's testimony and made an RFC finding that was
consistent with the overall record." See id. at 22-23 (citing Matta v. Astrue, 508 F. App'x 53, 56
(2d Cir. 2013) (although ALJ's conclusion did not perfectly correspond with any of the opinions
of medical sources, ALJ was entitled to weigh all of the evidence available to make an RFC
finding that was consistent with the record as a whole)).
Therefore, Magistrate Judge Lovric concluded that, "[i]n light of the ALJ's thorough
analysis, . . . [the ALJ's] RFC determination that Plaintiff could perform less than the full range
of light work was supported by substantial evidence[.]" See id. at 24.
Finally, Magistrate Judge Lovric addressed Plaintiff's argument that the ALJ did not
adequately resolve the conflict between the Vocational Expert ("VE")'s testimony and the
Dictionary of Occupational Titles ("DOT") with regard to "two of the three light work jobs
identified by the VE, and that the estimated 9,000 racker jobs existing in the national economy
do not, on their own, constitute a significant number of jobs that an individual with Plaintiff's
RFC can perform." See id. at 25-28. At the hearing before the ALJ, "the VE testified that an
individual with Plaintiff's RFC, including the restriction to occasional overhead reaching, could
perform the representative tasks of racker, sealing machine operator, and electronics worker."
See id. at 25 (citing T. 21, 43-45) (footnotes omitted). Magistrate Judge Lovric noted that,
"[a]ccording to the DOT, the position of racker only requires 'occasional' reaching, but the
positions of sealing machine operator and electronics worker require 'frequent' reaching." See id.
at 25-26 (citing Dictionary of Occupational Titles 735.687-026 Racker, 1991 WL 679983; id.
690.685-154, 1991 WL 678535.; id. 726.687-010, 1991 WL 679633).
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Plaintiff argued that the ALJ's reliance on the VE's testimony fell short of the Lockwood
standard. See id. at 26 (citing Dkt. No. 12 at 6-10). Magistrate Judge Lovric disagreed, finding
that Plaintiff's argument was "contradicted by the VE testimony." See id. Magistrate Judge
Lovric explained that, "before responding to the ALJ's RFC determination, the VE testified,
Under the hypothetical, there would be, and of course as you
pointed out, Your Honor, the ten pounds lifting does not meet the
full definition of light work, so my answer on the jobs that I'm
going to be giving you, is based on my knowledge of how these
jobs are performed . . .
See id. (quoting T.43 (emphasis supplied)).
Furthermore, Magistrate Judge Lovric noted that, "[a]fter the VE identified three
representative jobs, the ALJ followed up on apparent conflicts, by asking the VE whether his
testimony was "'consistent with the information in the DOT other than those deviations that
you've already pointed out?'" See id. (quoting T.44). In response, the VE testified that the
"limitation with regard to reaching overhead occasionally, that's not addressed within the
Selected Characteristics of Occupations; it's reaching in all planes, so again, my answer would
be based on my experience in the labor market and knowledge of how the jobs are
performed." See id. (quoting T.44 (emphasis supplied)).
Based on his review of the record in light of Plaintiff's objections, Magistrate Judge
Lovric concluded that the ALJ's development of the record satisfied the Lockwood requirements.
See id. at 27. In this regard, he noted that the problem in Lockwood was that the ALJ left the
conflict unresolved, unlike in this case, in which "the VE['s] testimony squarely addressed the
issue of overhead reaching with reference to his practical knowledge of the specific job
requirements." See id. Thus, Magistrate Judge Lovric found that "the ALJ's inquiry provides
sufficient detail to satisfy Lockwood, consistent with Matthew M." See id. (citing Thomas K. v.
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Comm'r of Soc. Sec., No. 1:22-CV-00673 (TPK), 2025 WL 484178, at *5 (W.D.N.Y. Feb. 13,
2025) (finding "vocational testimony to be sufficient when the expert indicated knowledge of
how the jobs in question were performed and said, based on experience, that someone who had a
particular physical limitation could do either all or some percentage of them.")). For these
reasons, Magistrate Judge Lovric found that "the ALJ fulfilled his obligation to resolve the
conflict between the VE's expert testimony and the DOT at step five, consistent with Lockwood[;
and] [t]he VE's testimony provides a reasonable explanation for the conflict which, in turn,
provides a basis for the ALJ's reliance on it." See id. at 28.
Having reviewed Magistrate Judge Lovric's analysis of the entire record and his
explanation and resolution of Plaintiff's arguments, the Court is satisfied that there is no clear
error on the face of the record. Therefore, the Court accepts Magistrate Judge Lovric's
recommendations.
IV. CONCLUSION
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Lovric's Report-Recommendation, see Dkt. No. 17, is
ADOPTED AND ACCEPTED in its entirety; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings, see Dkt. No. 12, is
DENIED; and the Court further
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ORDERS that Defendant's motion for judgment on the pleadings, see Dkt. No. 15, is
GRANTED; and the Court further
ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and
close this case.
IT IS SO ORDERED.
Dated: March 25, 2026
Syracuse, New York
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