Woolman v. Kijakazi

Filing 17

ORDER ON REPORT-RECOMMENDATIONS: the Court hereby ORDERS that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 15) is ADOPTED in its entirety for the reasons set forth herein; and the Court further ORDERS that Plaintiff's motion fo r judgment on the pleadings (Dkt. No. 11) is DENIED; and the court further ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 13) is GRANTED; and the Court further ORDERS that the Commissioner's decision is AFFIRMED; and the Court further ORDERS that the Clerk of the Court shall entered Judgment in Defendant's favor and close this case. IT IS SO ORDERED. Signed by U.S. District Judge Mae A. D'Agostino on 9/25/2024. (sbb)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
KIM W.,
Plaintiff,
vs.

5:23-CV-688
(MAD/ML)

MARTIN J. O'MALLEY, as Commissioner of
Social Security,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

HILLER COMERFORD INJURY &
DISABILITY LAW
6000 North Bailey Avenue - Suite 1a
Amherst, New York 14226
Attorney for Plaintiff

JUSTIN M. GOLDSTEIN, ESQ.

SOCIAL SECURITY ADMINISTRATION
Office of General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
Attorney for Defendant

FERGUS J. KAISER, ESQ.

Mae A. D'Agostino, U.S. District Judge:
ORDER
Plaintiff, Kim W., commenced this action pursuant to 42 U.S.C. § 405(g) seeking review
of the decision of the Commissioner of Social Security (the "Commissioner") denying her
applications for Disability Insurance Benefits and Supplemental Security Income. See Dkt. No. 1.
In a Report-Recommendation dated September 9, 2024, Magistrate Judge Miroslav Lovric
recommended that (1) Defendant's motion for judgment on the pleadings be granted; and (2) the

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Commissioner's decision be affirmed. See Dkt. No. 15. On September 23, 2024, Plaintiff filed
objections to the Report-Recommendation. See Dkt. No. 16.
When a party files specific objections to a magistrate judge's report-recommendation, the
district court makes a "de novo determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." 28 U.S.C. § 636(b)(1). However,
when a party declines to file objections or files "[g]eneral or conclusory objections or objections
which merely recite the same arguments [that he presented] to the magistrate judge," the court
reviews those recommendations for clear error. O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL
933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations and footnote omitted); see McAllan v. Von Essen,
517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007). After the 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).
Neither party objects to the factual or procedural background or legal framework set forth
in the Report-Recommendation. The Court finds no clear error in those portions of Magistrate
Judge Lovric's decision and assumes the parties' familiarity with the same.
"Plaintiff objects to Judge Lovric's analysis of the law and facts relating to the ALJ's step
four findings, exclusion of postural limitations, and residual functional capacity (RFC) finding"
and argues that "[t]he R&R is based upon clear errors[.]" Dkt. No. 16 at 1. Most of Plaintiff's
objections concern arguments that were raised to, and considered by, Magistrate Judge Lovric.
See id. The portions of the Report-Recommendation dealing with those arguments will be
reviewed for clear error. See Taylor v. Astrue, 32 F. Supp. 3d 253, 261 (N.D.N.Y. 2012).
However, Plaintiff does raise one issue which she asserted in her opening brief that appears
unaddressed by Magistrate Judge Lovric: the ALJ's unexplained rejection of postural limitations.

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See id. at 17.; see also Dkt. No. 15. As it was not addressed in the Report-Recommendation, that
issue will be reviewed de novo. See Charles v. Cnty. of Nassau, 116 F. Supp. 3d 107, 121
(E.D.N.Y. 2015); Joshua M. v. Comm'r of Soc. Sec., No. 5:22-CV-1274, 2024 WL 1341106, *1
(N.D.N.Y. Mar. 29, 2024).
First, Plaintiff argues that the ALJ erred in concluding that Plaintiff's past work constituted
substantial gainful employment, particularly because the ALJ did not consult a vocational expert
in making that determination. See Dkt. No. 16 at 6-14. Plaintiff objects to Magistrate Judge
Lovric affirming this portion of the ALJ's decision. See id.
Magistrate Judge Lovric explained that Plaintiff worked at two places relevant to this
issue: Burger King and Little Caesars. See Dkt. No. 15 at 10-11. Magistrate Judge Lovric
addressed Plaintiff's argument that these jobs did not constitute substantial gainful employment.
Id. at 10-13. The Court finds no clear error in Magistrate Judge Lovric's analysis or conclusion on
this issue.
As an initial matter, Plaintiff agrees that Magistrate "Judge Lovric identified the proper
three-prong test for past relevant work." Dkt. No. 16 at 6; see also Dkt. No. 15 at 10 (citing SSR
82-62, Titles II and XVI: A Disability Claimant's Capacity to do Past Relevant Work, In General,
1982 WL 31386 (Jan. 1, 1982)). Part of the determination of whether past relevant work
constitutes substantial gainful employment concerns the plaintiff's earnings from the past job. See
Caiozzo v. Astrue, No. 11-CV-2461, 2012 WL 2921187, *2 (E.D.N.Y. July 13, 2012) ("A
claimant is generally presumed to have engaged in substantial gainful activity if his monthly
earnings are above an administratively-determined threshold").
In her opening brief, Plaintiff argued that she did not make enough money at Burger King
for the work to constitute substantial gainful employment. See Dkt. No. 11 at 8. She reiterates

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this argument in her objections. See Dkt. No. 16 at 8. Magistrate Judge Lovric concluded that
any error in finding that the Burger King position constituted substantial gainful employment was
harmless because Plaintiff's work at Little Caesars passed the earnings threshold. See Dkt. No. 15
at 12-13. Plaintiff does not challenge this conclusion. See Dkt. No. 16 at 8-14. The Court finds
no clear error in the determination because Plaintiff has not identified a requirement that all of her
past relevant work must constitute substantial gainful employment. See SSR 82-62, 1982 WL
31386; see e.g., Albano v. Colvin, 99 F. Supp. 3d 355, 369 (E.D.N.Y. 2015) (discussing the ALJ's
reliance on only one past job as past relevant work).
Plaintiff next challenges the characterization of her Little Caesars job as a "Fast-foods
worker" because it "was clearly a composite job, and, if not, the occupation as a Fast-foods
Worker was not an accurate classification." Dkt. No. 16 at 9. Magistrate Judge Lovric stated that
"this argument is unpersuasive. Plaintiff testified that she began as a crew member at Little
Caesars before being promoted within less than a year. . . . Therefore, the ALJ had a reasonable
basis to conclude that Plaintiff's time as a crew member met the durational requirement to qualify
as past relevant work." Dkt. No. 15 at 12. Plaintiff argues that "this finding does not address the
factual and legal issues relating to Plaintiff's past work being a composite job." Dkt. No. 16 at 9.
"'A composite job combines significant elements of two or more jobs, and has no
counterpart in the'" Dictionary of Occupational Titles. Susan M. v. Comm'r of Soc. Sec., No.
1:18-CV-0623, 2019 WL 2754480, *5 (N.D.N.Y. July 2, 2019) (quoting Noelle v. Comm'r of Soc.
Sec., 15-CV-1301, 2017 WL 9509957, *6 (N.D.N.Y. Feb. 13, 2017)). "'If the ALJ finds that a
plaintiff's past relevant work is a composite job, then it cannot suffice at step four as work 'as
generally performed in the national economy.'" Sherry F. v. Comm'r of Soc. Sec., No. 5:21-CV1389, 2022 WL 18831487, *7 (N.D.N.Y. Nov. 3, 2022) (quotation and citation omitted).

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"[W]here a job is a composite job, it is error for the ALJ to find that the claimant is disabled
merely because she can perform the least demanding aspects of her past relevant work." Susan
M., 2019 WL 2754480, at *5 (citing Long v. Berryhill, No. 16-CV-0760, 2018 WL 618119, *4-5
(W.D.N.Y. Jan. 30, 2018)). "[I]f the ALJ or the Court had found that Plaintiff's former job was a
composite job, then the ALJ would have been required to conduct a Step Five analysis." Sherry
F., 2022 WL 18831487, at *7 n.3.
Plaintiff is correct that Magistrate Judge Lovric did not review this issue in great detail.
However, as explained by Magistrate Judge Lovric, even if the ALJ erred by not categorizing
Plaintiff's work at Little Caesars as a composite job, any error is harmless because the ALJ made
an alternative step five finding. See Dkt. No. 15 at 13; see also Shepard v. Astrue, No. 5:10-CV323, 2011 WL 5419852, *8 n.2 (D. Vt. Oct. 12, 2011) (collecting cases); Brandon v. Colvin, No.
5:15-CV-0386, 2016 WL 4532148, at *10 (N.D.N.Y. Aug. 29, 2016) (citing Marrero v. Comm'r
of Soc. Sec., No. 18-CV-229, 2019 WL 5208121, *2 (W.D.N.Y. Oct. 16, 2019)). In her
objections, Plaintiff argues that Magistrate Judge Lovric's harmlessness conclusion is incorrect
because the step five finding is based on the RFC and the RFC determination is not supported by
substantial evidence. See Dkt. No. 16 at 14.
Plaintiff's challenges to the ALJ's RFC determination revolve around the ALJ's conclusion
that her breast cancer and treatment are non-severe impairments. See id. Magistrate Judge Lovric
appropriately addressed this argument. See Dkt. No. 15 at 14-17. He concluded that "the ALJ
had substantial evidence to conclude that Plaintiff's breast cancer and chemotherapy treatment
were non-severe impairments" and "any error in addressing Plaintiff's breast cancer and related
treatment would be harmless, because the ALJ still considered Plaintiff's breast cancer in
combination with her other impairments as part of her RFC determination." Id. at 15-16. Courts

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have repeatedly determined that any error in finding a condition to be severe at step two can be
harmless so long as the ALJ considered the condition at the subsequent steps of his or her
decision. See Reices-Colon v. Astrue, 523 Fed. Appx. 796, 798 (2d Cir. 2013); Nicholas C. v.
Kijakazi, No. 3:21-CV-00420, 2022 WL 1204929, *5 (D. Conn. Apr. 22, 2022) (collecting cases).
Plaintiff argues that any error in the ALJ's step-two determination about her cancer
treatment is not harmless because the ALJ overstated Plaintiff's daily activities and relied on stale
medical opinions in making the RFC determination. See Dkt. No. 16 at 15-23. Magistrate Judge
Lovric analyzed these issues and the Court finds no clear error in his discussion or conclusion.
As to Plaintiff's activities of daily living, Magistrate Judge Lovric reiterated the ALJ's
statements about Plaintiff's capabilities. See Dkt. No. 15 at 18-20. He explained that "[t]he ALJ's
consideration and discussion of the relevant evidence is extensive, and her conclusions are not so
unavailing that a reasonable factfinder would have to conclude otherwise." Id. at 20 (quoting
Brault v. Comm'r of Soc. Sec., 683 F.3d 443, 448 (2d Cir. 2012)) (additional quotation and
quotation marks omitted). Plaintiff does not expand on her conclusory statement that "[t]he ALJ
similarly overstated Plaintiff's daily activities." Dkt. No. 16 at 15. Rather, as explained by
Magistrate Judge Lovric, the ALJ comprehensively discussed Plaintiff's activities of daily living
as set forth in the medical records and Plaintiff's own testimony. See Dkt. No. 8 at 19-20.
The Court likewise finds no clear error in Magistrate Judge Lovric's conclusion about the
ALJ's reliance on medical opinions from state agency medical consultants Alan Auerbach, M.D.,
and Karen Waldman, M.D. As Magistrate Judge Lovric correctly explained, Drs. Auerbach and
Waldman did not review the entire record. See Dkt. No. 12 at 20. However, the ALJ's reliance
on the opinions does not require remand because the ALJ discussed subsequent medical records
that were unavailable to the consultants. See id. at 21-22.

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This is not a circumstance where an ALJ relied on a stale medical opinion and then crafted
an RFC by implementing her own medical judgment based on subsequent medical records. See
Davis v. Berryhill, No. 6:16-CV-06815, 2018 WL 1250019, *3 (W.D.N.Y. Mar. 11, 2018) ("'[A]n
ALJ must rely on the medical findings contained within the record and cannot make his own
diagnosis without substantial medical evidence to support his opinion'") (quoting Goldthrite v.
Astrue, 535 F. Supp. 2d 329, 339 (W.D.N.Y. 2008)). Rather, the ALJ explained her reliance on
various medical opinions which opined that Plaintiff was limited to light work and concluded that
those opinions were consistent "with the record as a whole." Dkt. No. 8 at 20. The ALJ then
discussed records that were completed after Drs. Auerbach and Waldman's opinions. The Court
agrees with Magistrate Judge Lovric that the ALJ's decision on this issue is supported by
substantial evidence.
Next, Plaintiff argues in her opening brief and objections that the ALJ improperly
excluded postural limitations from Plaintiff's RFC. See Dkt. No. 11 at 16; Dkt. No. 16 at 17.
Magistrate Judge Lovric did not address this issue in his Report-Recommendation; therefore, the
Court reviews the issue de novo.
As Plaintiff explains, "Drs. Auerbach and Waldman assessed Plaintiff was limited to
occasional climbing ramps/stairs, occasional climbing ladders/ropes/scaffolds, frequent balancing,
occasional stooping, occasional kneeling, occasional crouching, and occasional crawling." Dkt.
No. 16 at 15 (citing Dkt. No. 8 at 94-95). The ALJ noted in her decision that they opined that
Plaintiff "would be capable of performing light work, subject to some additional postural
limitations." Dkt. No. 8 at 20. Plaintiff argues that "[t]he RFC finding does not include any
postural limitations. The ALJ further noted that [Plaintiff's treating provider, Sam Benjamin,
M.D.,] assessed Plaintiff 'is unable to perform any postural movements at all.' . . . The record

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does not contain an opinion indicating Plaintiff can perform light work without postural
limitations." Dkt. No. 16 at 16 (quotations omitted).
It is true that remand may be warranted if an ALJ fails to explain his or her "reasoning for
adopting or failing to adopt specific limitations." White v. Saul, 414 F. Supp. 3d 377, 382
(W.D.N.Y. 2019); see also Tina T. v. Comm'r of Soc. Sec., No. 5:20-CV-0981, 2022 WL 103119,
*4 (N.D.N.Y. Jan. 11, 2022) ("'[W]hen an ALJ adopts only portions of a medical opinion, he must
explain why he rejected the remaining portions'") (quoting Felicia A. v. Comm'r of Soc. Sec., No.
20-CV-6435, 2021 WL 2153878, *2 (W.D.N.Y. May 27, 2021)).
Here, the ALJ did explain her rejection of postural limitations. In reviewing Dr.
Benjamin's opinions, the ALJ acknowledged his conclusion that Plaintiff "is unable to perform
any postural movements at all." Dkt. No. 8 at 21. The ALJ also acknowledged the postural
limitations opined by Drs. Auerbach and Waldman. See id. at 20. However, the ALJ concluded
that "postural limitations are not well supported by reports of regular stair climbing, cleaning,
sweeping, and mopping . . . , all of which indicate substantial postural abilities." Id. at 21.
Plaintiff does not challenge this statement in her objections or opening brief. See Dkt. Nos. 11,
16. Rather, as explained, Plaintiff merely states, in a conclusory fashion, that "[t]he ALJ []
overstated Plaintiff's daily activities." Dkt. No. 16 at 15. As noted by the ALJ, Plaintiff indicated
in her Function Report that she could clean, sweep, mop, and do dishes. See Dkt. No. 8 at 301.
Plaintiff did not state a limitation on any of those activities. See id. Because the ALJ explained
her rejection of postural limitations, the Court disagrees with Plaintiff's objections on this issue
and concludes that the ALJ's decision is supported by substantial evidence.
Although Plaintiff's primary challenge to the ALJ's decision stems from the RFC
determination, Plaintiff also argues that "regardless of the issues with the RFC finding, remand is

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still required." Dkt. No. 16 at 14. Specifically concerning the step five determination, Plaintiff
cites Walterich v. Comm'r of Soc. Sec., 2020 WL 2078795, *3 (W.D.N.Y. Apr. 30, 2020) to
support her statement that "[l]ike Walterich, Plaintiff's age status was more favorable under the
Grid Rules, and Plaintiff turned 50 years old shortly after the application date." Id.
Plaintiff did not raise this argument in her opening brief. In fact, she did not discuss the
ALJ's step-five determination at all, except to state that "[t]he ALJ'[s] RFC and subsequent
consideration of work at step four and five fails to adequately account for Plaintiff's breast cancer,
even if it was deemed non-severe." Dkt. No. 11 at 11. "'[D]istrict courts ordinarily will not
consider new arguments, evidence, or case law that could have been but were not presented to the
magistrate judge. . . .'" ICM Controls Corp. v. Honeywell Int'l, Inc., No. 5:12-CV-1766, 2019 WL
7631075, *11 (N.D.N.Y. Dec. 3, 2019) (quoting Chun Lan Guan v. Long Island Bus. Inst., Inc.,
No. 15-CV-2215, 2019 WL 3807455, *2 (E.D.N.Y. Aug. 13, 2019)). Plaintiff discussed harmless
error in her opening brief in the context of the severity determination, but did not do so in terms
of past relevant work and substantial gainful employment. See Dkt. No. 11 at 11. Because
Plaintiff did not raise Walterich or present argument addressing harmful error between steps four
and five in her opening brief, and her argument in her objections is a single conclusory statement,
the Court declines to consider this issue. See Dkt. No. 16 at 14.
Accordingly, after carefully reviewing the Report-Recommendation, the entire record in
this matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Lovric's Report-Recommendation (Dkt. No. 15) is
ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings (Dkt. No. 11) is DENIED;
and the Court further

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ORDERS that Defendant's motion for judgment on the pleadings (Dkt. No. 13) is
GRANTED; and the Court further
ORDERS that the Commissioner's decision is AFFIRMED; and the Court further
ORDERS that the Clerk of the Court shall entered judgment in Defendant's favor and
close this case; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: September 25, 2024
Albany, New York

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