REPORT & RECOMMENDATION TO: THE HONORABLE JOHN G. KOELTL, UNITED STATES DISTRICT JUDGE
FROM: KATHARINE H. PARKER, UNITED STATES MAGISTRATE JUDGE
April Green ("Plaintiff") commenced this action against Defendant Commissioner of the Social Security Administration ("Commissioner"), pursuant to the Social Security Act (the "Act"), 42 U.S.C. §§ 405(g) and 1383(c)(3), seeking review of the Commissioner's decision that Plaintiff was not disabled as of July 22, 2014 under section 1614(a)(3)(A) of the Act and thereby not entitled to disability insurance benefits ("DIB"). The parties' cross motions for judgment on the pleadings have been referred to the undersigned for report and recommendation. Although Plaintiff applied for DIB based on physical and mental impairments, her appeal pertains only to the Administrative Law Judge's ("ALJ") findings concerning her physical impairments and residual functional capacity ("RFC"). Accordingly, this Court's report and recommendation focuses on these issues. For the reasons set forth below, this Court respectfully recommends that the Commissioner's Motion be GRANTED and Plaintiff's Motion be DENIED.
See Doc. No. 9, Memorandum of Law in Support of the Plaintiff's Motion for Judgment on the Pleadings ("Pl. Br."); Doc No. 12, Memorandum of Law in Support of the Commissioner's Cross-Motion for Judgment on the Pleadings ("Def. Br.").
I. Summary of Claim and Procedural History
Plaintiff April Green currently is 43 years old and has an associate degree. (Doc No. 14, Social Security Administrative Record ("Tr."), 45, 66, 162.) She most recently worked as a corrections officer for the New York State Corrections Department from 2001 to July 2014. (Id. at 175, 198, 201.) Her most recent assignment was at the Vernon C. Bain Center in the Bronx. (Id. at 169.) In or about July 2014, Plaintiff injured herself at work. (Id. at 177, 479.) She suffered injuries to her neck and left shoulder. (Id. at 178.) As a result, Plaintiff was awarded Workers' Compensation benefits. (Id. at 82.) She has not worked since. She lives with and takes care of her husband and now teenage son. (Id. at 327.) She regularly attends church and has gone on church retreats and at least one vacation. (Id. at 166-169, 171-72.) In early 2016, Plaintiff began taking online classes full-time at Liberty University towards her bachelor's degree. (Id. at 163-66.)
Plaintiff filed her application for DIB on December 19, 2014, claiming an alleged onset date ("AOD") of July 22, 2014. (Id. at 10.) She alleged the following disabling conditions: depression and anxiety, bulging disc cervical spine, bulging degenerative disc lumbar spine, left arm impairment, and post concussive symptoms. (Id. at 194.) After her initial application was denied on February 27, 2015, Plaintiff requested and was granted a hearing before ALJ Robert Gonzalez. (Id. at 10, 20.) The hearing was held on March 24, 2017. (Id. at 159.) Linda Stein, a vocational expert ("VE"), testified at the hearing about the availability of jobs in the national economy for individuals similar to Plaintiff. (Id. at 10, 183-91.) The ALJ found that Plaintiff was not disabled for purposes of receiving Social Security DIB. (Id. at 7-20.) Plaintiff appealed, but the Social Security Administration Appeals Council declined review of the ALJ's decision, leading to the instant action. (Id. at 1-6; Doc. No. 1.)
In this appeal, Plaintiff argues that the ALJ erred by: (1) failing to follow the treating physician rule by not assigning controlling weight to the opinion of her treating physician, Dr. Richard Radna (Pl. Br. 9-12); (2) failing to properly weigh Dr. Radna's opinion even if it did not merit controlling weight (id.); (3) determining that Plaintiff had the RFC to perform sedentary work with some limitations (id. at 12-13); and (4) relying on the VE's testimony in finding that there existed a significant number of jobs in the national economy for someone with Plaintiff's RFC (id. at 13-15). II. The Commissioner's Decision
Before addressing the Plaintiff's arguments, a summary of the ALJ's decision is needed for context. The ALJ followed the five-step sequential process contemplated under 20 C.F.R. § 404.1520 (a)(4)(i)-(v) to evaluate Plaintiff's claim. (Tr. 11-12.) At step one, the ALJ found that Plaintiff had not engaged in substantial gainful activity from the AOD of July 22, 2014 through the present day. (Id. at 12.) At step two, the ALJ concluded that Plaintiff suffered from the following severe impairments: spondylosis of the cervical spine, left shoulder impingement, left shoulder bicep tenosynovitis, and depression. (Id.)
The ALJ found that Plaintiff met the insured status requirements for DIB under the Act through December 21, 2020.
"Cervical spondylosis is a general term for age-related wear and tear affecting the spinal disks in [a person's] neck. As the disks dehydrate and shrink, signs of osteoarthritis develop, including bony projections along the edges of bones (bone spurs). Cervical spondylosis is very common and worsens with age. More than 85 percent of people older than age 60 are affected by cervical spondylosis. Most people experience no symptoms from these problems. When symptoms do occur, nonsurgical treatments often are effective." Mayo Clinic Staff, Cervical spondylosis, Mayo Clinic, https://www.mayoclinic.org/diseases-conditions/cervical-spondylosis/symptoms-causes/syc-20370787 (last visited June 17, 2019).
At step three, the ALJ found that Plaintiff's impairments, individually and collectively, failed to meet or medically equal the severity of the impairments listed in 20 C.F.R. Part 404, Subpart P, Appendix 1 (the "Listings"). (Id. at 12-14.) The ALJ considered Listings 1.02 (Major dysfunction of a joint(s) (due to any cause)) and 1.04 (Disorders of the spine) in connection with Plaintiff's physical impairments. (Id.) He found no indication that Plaintiff could not perform the fine/gross manipulations necessary for a finding of disability under Listing 1.02 and did not present the nerve root compression with sensory or reflex loss, spinal arachnoiditis, or spinal stenosis resulting in pseudoclaudication necessary for a finding of disability under Listing 1.04. (Id.) As to Plaintiff's mental impairments, the ALJ considered Listing 12.04 (Depressive, bipolar, and related disorders). (Id.) The ALJ determined that Plaintiff's "mental impairments did not cause at least two 'marked' limitations or one 'extreme' limitation in any of the enumerated broad areas of functioning." (Id. at 13.) He further found that none of the "paragraph C" criteria required for Listing 12.04 were present. (Id. at 13-14.)
At step four, the ALJ assessed Plaintiff's RFC—the maximum amount of work Plaintiff is able to perform despite her limitations. 20 C.F.R. § 416.945(a)(1). The ALJ determined that Plaintiff was unable to perform her past relevant work as a corrections officer/captain. (Id. at 19.) But, the ALJ determined that Plaintiff had the RFC to perform sedentary work as defined in 20 § C.F.R. 404.1567(b) with some limitations. (Id. at 14.) The ALJ found that Plaintiff could lift up to 10 pounds and do a certain amount of lifting and carrying light objects, as well as walk and stand, see 20 CFR 404.1567(a), but could only occasionally reach overhead with the left upper extremity and occasionally push and pull. (Id.) Finally, the ALJ found Plaintiff was able to understand, remember, and carry out simple work and adapt to routine workplace changes. (Id.)
At step five of the analysis, after considering Plaintiff's age, education, RFC, and the vocational expert's testimony, the ALJ found that there are jobs that exist in significant numbers in the national economy that Plaintiff can perform. (Id. at 20.) Representative occupations include the jobs of addresser, surveillance systems monitor, telephone order clerk, and charge account clerk. (Id. at 19-20, 188-189.) Thus, the ALJ found that Plaintiff was not disabled and not entitled to DIB. (Id. at 19-20.)
I. Applicable Law
A. Judicial Standard of Review of the Commissioner's Decision
A court's review of the Commissioner's denial of disability benefits is limited to two inquiries. Johnson v. Bowen, 817 F.2d 983, 985 (2d Cir. 1987). First, the court must determine whether the Commissioner applied the correct legal principles in reaching a decision; second, the court must decide whether the Commissioner's decision is supported by substantial evidence in the record. 42 U.S.C. § 405(g); see Estrella v. Berryhill, No. 17-3247, 2019 WL 2273574, at *2 (2d Cir. May 29, 2019); Tejada v. Apfel, 167 F.3d 770, 773 (2d Cir. 1999). If the Commissioner's decision is supported by substantial evidence in the administrative record, the ALJ's findings as to any facts are conclusive. 42 U.S.C. § 405(g) & § 1383(c)(3).
An ALJ's failure to apply the correct legal standard constitutes reversible error if that failure may have affected the disposition of the case. Kohler v. Astrue, 546 F.3d 260, 265 (2d Cir. 2008). This applies to an ALJ's failure to follow an applicable statutory provision, regulation, or Social Security Ruling ("SSR"). See, e.g., id. (discussing failure to follow a regulation); Schaal v. Callahan, 993 F. Supp. 85, 93 (D. Conn. 1997) (discussing failure to follow SSR). In such a case, the court may remand the matter to the Commissioner under sentence four of 42 U.S.C. § 405(g), especially if deemed necessary to allow the ALJ to develop a full and fair record or to explain their reasoning. See, e.g., Donnelly v. Colvin, No. 13-CV-7244 AJN RLE, 2015 WL 1499227, at *8 (S.D.N.Y. Mar. 31, 2015) (citing Crysler v. Astrue, 563 F. Supp. 2d 418, 429 (N.D.N.Y 2008)); Rivera ex rel. S.M.H. v. Colvin, 9 F. Supp. 3d 309, 316 (S.D.N.Y. 2014).
If the reviewing court is satisfied that the ALJ applied the correct legal standards, then the reviewing 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. Soc. Sec. Admin., Comm'r, 683 F.3d 443, 447 (2d Cir. 2012) (per curiam) (citation and internal quotation marks omitted); Donnelly, 2015 WL 1499227, at *8. "Substantial evidence is evidence that a 'reasonable mind might accept as adequate to support a conclusion.'" Estrella, 2019 WL 2273574, at *2 (quoting McIntyre v. Colvin, 758 F.3d 146, 149 (2d Cir. 2014)). Under the substantial evidence standard, a reviewing court may reject an ALJ's findings of fact "only if a reasonable factfinder would have to conclude otherwise." Brault, 683 F.3d at 448 (citation and internal quotation marks omitted) (emphasis in original). This is a "highly deferential standard of review." Negron v. Berryhill, 733 F. App'x 1, 2 (2d Cir. 2018) ("[I]f evidence is susceptible to more than one rational interpretation, the Commissioner's conclusion must be upheld." (alteration in original) (quoting McIntyre, 758 F.3d at 149)).
To be supported by substantial evidence, the ALJ's decision must be based on a consideration of all the evidence available in the record. 42 U.S.C. § 1383(c). While the ALJ's decision need not "mention every item of testimony presented," 3Mongeur 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) (citation and internal quotation marks omitted), the ALJ may not ignore or mischaracterize evidence of a person's alleged disability. See Ericksson v. Comm'r of Soc. Sec., 557 F.3d 79, 82-84 (2d Cir. 2009) (discussing mischaracterizing evidence); Kohler, 546 F.3d at 268-69 (discussing overlooking evidence); Ruiz v. Barnhart, No. 01-cv-1120 (DC), 2002 WL 826812, at *6 (S.D.N.Y. May 1, 2002) (discussing ignoring evidence). If the decision denying benefits applies the correct legal standards and is based on substantial evidence, the reviewing court must affirm; otherwise, the court may modify or reverse the decision, with or without remand. 42 U.S.C. § 405(g) & § 1383(c)(3).
B. Legal Principles Applicable to the Commissioner's Disability Determination
Under the Act, every individual considered to have a "disability" is entitled to benefits. 42 U.S.C. § 1382 & § 423. 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 twelve months." 42 U.S.C. §§ 1382c(a)(3)(A) & 423(d)(1)(A). A claimant's impairments must be "of such severity that [s]he is not only unable to do [her] previous work but cannot, considering [her] age, education, and work experience, engage in any other kind of substantial gainful work which exists in the national economy." 42 U.S.C. 1382c(a)(3)(B) & § 423(d)(2)(A).
To determine whether an individual is entitled to receive disability benefits, the Commissioner is required to conduct the following five-step inquiry:
(1) Determine whether the claimant is currently engaged in any substantial gainful activity. 20 C.F.R. § 416.920(a)(4)(i).Id.; 42 U.S.C. § 1382c(a)(3)(B); see Rosa v. Callahan, 168 F.3d 72, 77 (2d Cir. 1999); Gonzalez v. Apfel, 61 F. Supp. 2d 24, 29 (S.D.N.Y. 1999).
(2) If not gainfully employed, determine whether the claimant has a "severe impairment" that significantly limits her or her ability to perform basic work activities. Under the applicable regulations, an impairment or combination of impairments that significantly limits the claimant's ability to perform basic work activities is considered "severe." 20 C.F.R. § 416.920(a)(4)(ii).
(3) If the claimant has a "severe impairment," determine whether the impairment is one of those listed in the Listings—if it is, the Commissioner will presume the claimant to be disabled and the claimant will be eligible for benefits. 20 C.F.R. § 416.920(a)(4)(iii). At this stage, the Commissioner must also determine the claimant's ability to perform physical and mental work activities on a sustained basis despite her impairments. This ability assessment is referred to as the claimant's RFC. 20 C.F.R. § 416.920(a)(4)(iv).
(4) If the claimant does not meet the criteria set forth in the Listings, the Commissioner next must determine whether the claimant possesses the requisite RFC to perform past work. Id.
(5) If the claimant is not capable of performing work performed in the past or has no history of past work, the Commissioner must determine whether the claimant is capable of performing other substantial gainful work which exists in the national economy.
A claimant's RFC is "the most [she] can still do despite [her] limitations." 20 C.F.R. § 416.945(a)(1). The ALJ's assessment of a claimant's residual functional capacity must be based on all relevant medical and other evidence, including objective medical evidence, such as x-rays and MRIs, the opinions of treating and consultative physicians, and statements by the claimant and others concerning the claimant's impairments, symptoms, physical limitations, and difficulty performing daily activities. See, e.g., Genier v. Astrue, 606 F.3d 46, 49 (2d Cir. 2010).
The claimant bears the burden of proof as to the first four steps of the Commissioner's analysis. See, e.g., Selian v. Astrue, 708 F.3d 409, 418 (2d Cir. 2013); Gonzalez, 61 F. Supp. 2d at 29. At the last step, the burden shifts to the Commissioner to show 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); see Poupore v. Astrue, 566 F.3d 303, 306 (2d Cir. 2009). II. Analysis
This Court first addresses the ALJ's affirmative duty to develop the record, before turning to the weight the ALJ afforded to Plaintiff's treating physicians in making his determination. The Court then addresses the ALJ's RFC assessment and reliance on the VE's testimony to find that there are a significant number of jobs in the national economy that Plaintiff may perform.
A. Development of the Record
In Social Security proceedings, the ALJ must affirmatively develop the record on behalf of all claimants. See Moran v. Astrue, 569 F.3d 108, 112-13 (2d Cir. 2009). The ALJ has an obligation to develop the record even where the claimant has legal counsel. Perez v. Chater, 77 F.3d 41, 47 (2d Cir. 1996). To do so, the ALJ must investigate the facts and develop the arguments both for and against granting benefits. Id. Whether the ALJ has fulfilled this duty is a threshold question. Accordingly, before deciding whether the Commissioner's final decision is supported by substantial evidence pursuant to 42 U.S.C. § 405(g), "the court must first be satisfied that the ALJ provided plaintiff with a full hearing under the Secretary's regulations and also fully and completely developed the administrative record." Intonato v. Colvin, No. 13 CIV. 3426 JLC, 2014 WL 3893288, at *8 (S.D.N.Y. Aug. 7, 2014) (quoting Scott v. Astrue, No. 09-cv-3999 (KAM)(RLM), 2010 WL 2736879, at *12 (E.D.N.Y. July 9, 2010)). Remand is appropriate when the ALJ fails to discharge this duty. See, e.g., Moran, 569 F.3d at 114-15 ("We vacate not because the ALJ's decision was not supported by substantial evidence but because the ALJ should have developed a more comprehensive record before making her decision."). However, "where there are no obvious gaps in the administrative record, and where the ALJ already possesses a 'complete medical history,'" the ALJ need not seek additional information before rejecting a claim. Rosa, 168 F.3d at 79 n.5 (citing Perez, 77 F.3d at 48).
After carefully reviewing the record, this Court finds that the ALJ properly obtained a complete medical record from the Plaintiff's doctors and that there are no obvious gaps in the administrative record. Id.; see 42 U.S.C. § 423(d)(5)(B) ("[The ALJ] shall make every reasonable effort to obtain . . . all medical evidence, including diagnostic tests, necessary in order to properly make such determination"). The ALJ had access to voluminous medical records covering both Plaintiff's physical and mental impairments, including progress notes, assessments, and diagnostic imaging results. (See, e.g., Tr. 508-25 (physical health progress notes), 526-31 (mental health progress notes), 612-14 (imaging results).) These records spanned the time period from 2014 through 2016, which was when Plaintiff stopped treatment. (Id. at 601, 172.) When asked whether or not there were outstanding medical records during her hearing, Plaintiff responded that there were no outstanding medical records. (Id. at 162.) Notably, Plaintiff points to no existing medical records that were missing from the administrative record. (See generally Pl. Br.) In its own review of the ALJ's findings and the record, the Court finds that there are no obvious gaps in the administrative record requiring remand for further development. See Rosa, 168 F.3d at 79 n.5 (citing Perez, 77 F.3d at 48).
B. Treating Physician Rule
Plaintiff primarily challenges the weight assigned to Dr. Radna's opinion. Plaintiff contends that Dr. Radna's opinion should have been accorded controlling weight as per the "treating physician rule." (Pl. Br. 9-11.) Plaintiff further contends that, even if controlling weight should not have been assigned, the ALJ should have assigned more than "little weight" to Dr. Radna's opinion. (Id.) Finally, Plaintiff argues that the ALJ erred by failing to provide specific reasons for the weight given to Dr. Radna's opinion. (Id. at 11-12.)
So long as a treating physician's opinion is "well-supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with the other substantial evidence in . . . [the] record," it must be given controlling weight. 20 C.F.R. § 416.927(c)(2); see also SSR 96-2p (S.S.A. July 2, 1996) (providing guidance regarding the treating physician rule). Treating physicians' opinions need not be given controlling weight where they are contradicted by other substantial evidence in the record. Bliss v. Comm'r of Soc. Sec., 406 F. App'x 541, 541-42 (2d Cir. 2011) (citing Veino v. Barnhart, 312 F.3d 578, 588 (2d Cir. 2002)); Snell v. Apfel, 177 F.3d 128, 133 (2d Cir. 1999) ("When other substantial evidence in the record conflicts with the treating physician's opinion . . . that opinion will not be deemed controlling. And the less consistent that opinion is with the record as a whole, the less weight it will be given."). Additionally, a doctor's opinion that a claimant is disabled is not given special significance as that determination is reserved to the Commissioner. 20 C.F.R. § 404.1527(d)(3); see Micheli v. Astrue, 501 F. App'x 26, 28 (2d Cir. 2012) ("[A] treating physician's statement that claimant is disabled cannot itself be determinative." (quoting Snell, 177 F.3d at 133)).
SSR 96-2p was rescinded by 82 Fed. Reg. 57 (Mar. 27, 2017). This ended the treating physician rule for applications filed after March 27, 2017.
Here, there is substantial evidence in the record supporting the ALJ's decision to not assign controlling weight to Dr. Radna's opinion. Dr. Radna, a specialist in neurosurgery, treated Plaintiff in connection with her Workers' Compensation claim from September 2014 through September 2016. (See Tr. 517-21, 795-99.) During that time, Dr. Radna consistently opined that Plaintiff was totally disabled. (See, e.g., id. at 741 (September 2014), 747 (January 2015), 796 (September 2016).) In August 8, 2016, Dr. Radna opined in a Workers' Compensation Functional Capability form that Plaintiff could only lift or carry up to five pounds for up to 1/3 of the time and could only occasionally sit, stand, or walk. (Id. at 801.)
Notably, the form indicated that Plaintiff was able to perform "[l]ess than sedentary work." Tr. 801. However, the definition of "sedentary work" on the form differs slightly from the definition of "sedentary work" for Social Security purposes, though the definitions are substantially similar. Compare Tr. 801 with 20 C.F.R. § 404.1567.
Dr. Radna's opinion is supported by the medically acceptable clinical and laboratory diagnostic techniques on which he relies. See 20 C.F.R. § 416.927(c)(2). In September 2014, Dr. Radna observed that Plaintiff had attenuated cervical and lumbar lordosis, antalgic gait, and there was evidence of moderate bilateral paravertebral spasm in the cervical and lumbo-sacral regions, and moderately diminished range of motion in Plaintiff's spine. (Id. at 736.) He noted that her straight leg raise testing was moderately restricted bilaterally. (Id.) He also noted that Plaintiff had attenuated dorsi and plantar flexion bilaterally. (Id. at 737.) Dr. Radna examined an MRI of Plaintiff's cervical spine that revealed disc protrusion at the C5/6 and C6/7 levels. (Id.) Based on these findings, Dr. Radna opined that Plaintiff had "cervical and lumbo-sacral, musculo- skeletal and radicular pain syndromes." (Id.) In January 2015, Dr. Radna observed that Plaintiff had severely diminished range of motion, that straight leg raise testing showed severely restricted results, and that Plaintiff exhibited an antalgic gait. (Id. at 747.) Dr. Radna reviewed an MRI of Plaintiff's lumbar spine which showed disc desiccation (dehydration) at the L5/S1 level. (Id.) In March 2016, Dr. Radna noted evidence of severe bilateral paravertebral spasm in the cervical and lumbo-sacral regions with severely diminished range of motion and severely restricted straight leg testing results. (Id. at 790.) Dr. Radna's review of an MRI of the lumbar spine showed disc desiccation at the lumbo-sacral junction. (Id. at 791.) Dr. Radna diagnosed Plaintiff with musculo-skeletal/mechanical spinal pain. (Id. at 792.) In September 2016, Dr. Radna had the same observations and testing results, as well as the same diagnosis and same opinion of total disability. (Id. at 795-97.)
However, the ALJ was entitled to confer less than controlling weight to Dr. Radna's opinion because other substantial medical evidence in the record contradicted Dr. Radna's opinion. See 20 C.F.R. § 416.927(c)(2); Snell, 177 F.3d at 133; Rivera v. Comm'r of Soc. Sec., 728 F. Supp. 2d 297, 327 (S.D.N.Y. 2010) ("ALJ validly rejected . . . [treating] physicians' opinions because they conflicted with plaintiff's admitted daily activities and other evidence in the record"). In fact, the majority of the other medical evidence and opinions contradicted Dr. Radna's findings and opinion as to the severity of Plaintiff's impairments and capacity to do work. Dr. Douglas A. Schwartz, who is board certified in physical medicine and rehabilitation, is also one of Plaintiff's treating physicians. (Tr. 173-74.) From October 2014 through October 2015, Dr. Schwartz opined that Plaintiff was totally disabled (id. at 758-786) based on findings including pain upon palpation of the left cervical paraspinal trigger, positive testing for cervical nerve root irritation, and impingement on the left side with a labral tear (see, e.g., id. at 766-67 (October 2014), 774-75 (January 2015)). However, Dr. Schwartz's notes show that Plaintiff's condition had improved over time, opining in December 2015 that Plaintiff was employable and noting only mild atrophy of the deltoid, 20/20 lateral bending of the cervical spine, 25/30 left/right rotation, and 4/5 muscle strength. (Id. at 787-788.) Dr. Schwartz's recognition that Plaintiff improved over time contradicts Dr. Radna's opinions that Plaintiff remained totally disabled, did not improve, and had limited functional capacity. (Compare id. at 787-88 with id. at 795-97.) Dr. Radna noted antalgic gait in his examinations in September 2014 (id. at 736) and January 2015 (id. at 747). However, Dr. Schwartz observed normal gait without assistive devices from October 2014 through January 2015. (Id. at 769, 775.)
Similarly, in December 2014, Dr. Edward Mills performed an independent evaluation of Plaintiff in connection with Plaintiff's Workers' Compensation claim. (Id. at 481-83.) Dr. Mills observed that Plaintiff had a normal gait, no spasms in her spine, and negative results from straight leg testing. (Id. at 482-83.) Dr. Mills also opined that Plaintiff was able to work and lift up to 25 pounds, albeit with no overhead lifting. (Id. at 483.) In a March 2015 addendum to his earlier report, Dr. Mills reiterated that Plaintiff was "capable of working with restrictions of no prolonged overhead activities and lifting over 25 [pounds]." (Id. at 651.) Dr. Ronald Mann, another independent examiner, observed normal gait, no muscle spam, no spinal atrophy, and full muscle strength in June 2015. (Id. at 827-33.) Dr. Mann opined that Plaintiff was able to work and perform light duties. (Id. at 832.) In August 2016, Dr. Steven Renzoni, another independent examiner, observed normal gait, no muscle spasms in Plaintiff's cervical and lumbar spines, normal ranges of motion and muscle strength, as well as negative results on straight leg testing. (Id. at 682-88.) While Dr. Radna opined that Plaintiff was completely disabled in September 2016, (id. at 795-97), Dr. Renzoni opined that Plaintiff's medical issues were resolved based on his physical examination and review of her records, including diagnostic imaging and the examination results from Dr. Radna. (Id. at 684-87.)
Plaintiff mis-cites Dr. Mill's findings. Plaintiff cites to Dr. Mills' 2015 examination addendum to support Dr. Radna's opinion and specifically states that "Dr. Mills' opinion is consistent with Dr. Radna's opinion that Ms. Green is limited to lifting no more than 5 pounds." Pl. Br. 10. However, this is incorrect, as Dr. Mills opined that Plaintiff could lift up to 25 pounds. Tr. 651. Dr. Mills further noted that his initially more restrictive range of motion results were due to Plaintiff's failure to make a full effort. Id. He revised his opinion to a 15% schedule loss in her left shoulder, changing his restriction on work ability from "no . . overhead activities" to "no prolonged overhead activities." Compare id. with id. at 483 (emphasis added).
The Court is satisfied that the ALJ was correct to not afford controlling weight to Dr. Radna's opinion. The extensive medical record which was inconsistent with Dr. Radna's opinion, especially Dr. Schwartz's findings, gave more than sufficient justification to not give Dr. Radna's opinion controlling weight.
Plaintiff argues that the case should be remanded so that the "little weight" conferred to Dr. Radna's opinion can be re-assessed. (Pl. Br. 10-11.) Plaintiff cites to SSR 96-2p for two related propositions, firstly that treating source medical opinions are entitled to deference and secondly, that the ALJ must give specific reasons for giving a specific weight to a treating physician's opinion. (Id.)
It is true that when an ALJ declines to give a treating physician's opinion controlling weight, the ALJ must provide good reasons for doing so. 20 C.F.R. § 416.927(c)(2); see Schisler v. Sullivan, 3 F.3d 563, 568 (2d Cir. 1993). The applicable regulation sets forth several factors relevant to determining how much weight to afford a treating physician's opinion including: (1) the length of the treatment relationship between the physician and the claimant and the frequency of examination; (2) the nature and extent of the treatment relationship; (3) the medical support for the treating physician's opinion; (4) the consistency of the opinion with the record as a whole; (5) the physician's degree of specialization; and (6) other factors that tend to support or contradict the treating physician's opinion. 20 C.F.R. § 416.927(c); Schisler, 3 F.3d at 567. When discussing the reasons for the weight afforded to a treating physician's opinion, an ALJ is not required to explicitly go through each of the above factors, but his rationale and adherence to the regulation must be clear. See, e.g., Atwater v. Astrue, 512 F. App'x 67, 70 (2d Cir. 2013) (holding that an ALJ need not "slavish[ly] recit[e] . . . each and every factor where the ALJ's reasoning and adherence to the regulation are clear."); Halloran v. Barnhart, 362 F.3d 28, 31-33 (2d Cir. 2004) (finding that the treating physician rule was not traversed even where "it is unclear on the face of the ALJ's opinion whether the ALJ considered (or even was aware of) the applicability of the treating physician rule"); see also 20 C.F.R. § 416.927(c)(3) (discussing the supportability of a medical source's opinion in determining weight given to that opinion).
The United States Court of Appeals for the Second Circuit has stated that the ALJ must "'explicitly consider' the following, nonexclusive 'Burgess factors': '(1) the frequen[cy], length, nature, and extent of treatment; (2) the amount of medical evidence supporting the opinion; (3) the consistency of the opinion with the remaining medical evidence; and (4) whether the physician is a specialist.'" Estrella, 2019 WL 2273574, at *2 (alteration in original) (quoting Selian, 708 F.3d at 18); see Burgess v. Astrue, 537 F.3d 117, 129 (2d Cir. 2008). An ALJ's failure to explicitly give good reasons when assigning weight to a treating physician's opinion is a procedural error and generally is grounds for a remand so that the ALJ may set forth the reasons why a given weight was assigned. Estrella, 2018 WL 2273574 at *3; Halloran, 362 F.3d at 33 ("We do not hesitate to remand when the Commissioner has not provided 'good reasons' for the weight given to a treating physician['s] opinion and . . . [does] not comprehensively set forth reasons for the weight assigned to a treating physician's opinion."). At the same time, where the ALJ does not explicitly address the "Burgess factors," the Second Circuit has instructed that the ALJ's findings may be affirmed if "a searching review of the record assures [the Court] that the substance of the treating physician rule was not traversed." Estrella, 2019 WL 2273574, at *3 (internal quotation marks omitted) (quoting Halloran, 362 F.3d at 33).
Here, it is clear that the ALJ committed procedural error by not explicitly discussing the Burgess factors. Because the ALJ assigned less than controlling weight to Dr Radna's opinion, the ALJ should have "explicitly" addressed the Burgess factors in his decision. See Estrella, 2019 WL 2273574, at *2-3; cf. Atwater, 512 F. App'x at 70 (explaining that the core question is whether "the ALJ's reasoning and adherence to the regulation are clear"). But his decision gave only perfunctory reasoning as to why he discounted Dr. Radna's opinion:
Little weight is given to the opinion [of] Dr. Radna, who opined that the claimant was unable to lift or carry more than 5 pounds or perform even sedentary work. (Exhibit 24F). This opinion is not well supported by clinical examination findings and is inconsistent with the opinions of multiple independent examiners. (Tr.18.)
As to the first Burgess factor, the ALJ only briefly described the length, nature, and extent of the treating relationship, without mentioning the frequency at all. (Tr. 15 (noting that records were submitted from 2014-2016, the diagnosis, and what was prescribed).) Regarding the second factor, the ALJ did not discuss any of the medical evidence that Dr. Radna relied on or whether it supported or undermined Dr. Radna's opinion. (Id. at 15, 18.) As to the third factor, the ALJ did not explicitly compare Dr. Radna's opinion to other medical evidence but addressed consistency perfunctorily by noting that Dr. Radna's opinion was "not well supported by clinical examination findings and is inconsistent with the opinions of multiple independent examiners." (Id. at 18.) Finally, the ALJ did not consider Dr. Radna's specialty in neurosurgery. (See id.)
However, the ALJ's procedural error was harmless, because after this Court's searching review of the record, the Court concludes that the substance of the treating physician rule was not traversed when the ALJ's decision is read as a whole in the context of the record before him. Estrella 2019 WL2273574 at *3 ("Because the ALJ procedurally erred, the question becomes . . . whether the record otherwise provides 'good reasons' for assigning 'little weight'" (quoting Halloran, 362 F.3d 28 at 33.)). The ALJ's reasoning and adherence to the substance of the treating physician rule is clear. See Atwater, 512 F. App'x at 70; see also Halloran, 362 F.3d 28 at 32-33 (holding that ALJ had applied the substance of the treating physician rule even where "it is unclear on the face of the ALJ's opinion whether the ALJ considered (or was even aware of) the applicability of the treating physician rule.").
One of the factors that that the relevant regulation considers is consistency of an opinion with the record as a whole. 20 C.F.R. § 416.927(c)(4); see Snell, 177 F.3d at 133 ("[T]he less consistent [a treating physician's] opinion is with the record as a whole, the less weight it will be given"). As noted above, the broad majority of the medical evidence from the other medical sources, including from Dr. Schwartz, is inconsistent with Dr. Radna's opinion as to the extent of Plaintiff's impairment and the lack of improvement. While Dr. Radna opined that Plaintiff was totally disabled from September 2014 through September 2016, (compare Tr. 737 with Tr. 795-97), Dr. Schwartz, the other treating source, opined that Plaintiff was employable and no longer disabled by December 2015. (Id. at 788.) Dr. Schwartz's progress notes showed improvement over time. (Compare id. at 766-67 (October 2014) with id. at 787-88 (December 2015).) Additionally, the independent medical examiners all disagreed with Dr. Radna's opinion after both examining Plaintiff and reviewing her medical records. (See id. at 481-83, 650-61 (Dr. Mills); id. at 821-32 (Dr. Mann); id. at 682-88 (Dr. Renzoni).) Dr. Renzoni, who affirmed that he had reviewed Plaintiff's medical records, specifically opined that Plaintiff's medical issues were resolved. (Id. at 682-88.) Moreover, Plaintiff's self-reported activities of daily living and conservative course of treatment both speak to the record's inconsistency with Dr. Radna's opinion and also independently act as "other factors that tend to . . . contradict the treating physician's opinions." Halloran, 362 F.3d 28 at 32 (discussing 20 C.F.R. § 416.927(c)(6)).
As the ALJ noted, Plaintiff "has described daily activities which are not limited to the extent one would expect" considering Dr. Radna's opinion that she was totally disabled. (Tr. 17.) She is able to care for her personal needs and do some household chores. (Id.) She drives and did so after her injury, driving more than an hour to see her doctor on occasion. (Id. at 174.) Notably, Plaintiff took an 11-hour trade ride on holiday, which is in sharp contrast to Dr. Radna's assessment that she could only stand or sit 1/3 of a work day. (Compare id. at 17 with id. at 801.) Plaintiff has been to multiple church retreats that have lasted through the weekend and required a three-hour drive. (Id. at 167-68.) Plaintiff stated in her hearing testimony before the ALJ that she believed she could lift a gallon of milk (which weighs approximately 8 pounds) on a regular basis. (Tr. 180-81.) Plaintiff also takes online college courses full-time and writes reports as part of her pursuit of her bachelor's degree—tasks that require concentration and sitting. (Id. at 163-66, 180.) Plaintiff also stated that she could "sit for a while," including through a full movie, though she did note that she had to shift her position. (Id. at 182.)
As the ALJ noted, Plaintiff went through a relatively conservative course of treatment that improved over time. After her accident in 2014, Plaintiff was prescribed Duexis by Dr. Schwartz. (Id. at 17, 477.) Dr. Radna only prescribed Plaintiff physical therapy, a back brace, and pain management as of his last examination. (Id. at 795-99.) By the time of the hearing before the ALJ, she no longer took prescription drugs for her pain issues. (Id. at 17 referring to 173.) Though surgery was initially recommended, Plaintiff chose to pursue only non-surgical treatment such as physical therapy. (Id. at 15.) By 2016, Plaintiff completely stopped treatment and is still able to perform her activities of daily life. (See id. at 13-16, 172, 787.) In combination with the other substantial evidence in the record, the lack of continued treatment supports the ALJ's determination that Plaintiff is not disabled. See Burgess, 537 F.3d at 129; see also Tricarico v. Colvin, 681 F. App'x 98, 100-01 (2d Cir. 2017) (finding that conservative treatment can constitute substantial evidence to assign less than controlling weight to a treating physician).
In sum, there exists substantial evidence in the record, both mentioned in the entirety of the ALJ's decision and not, which serves to support the ALJ's decision to assign little weight to Dr. Radna's opinion. When read as a whole, the ALJ's decision to assign little weight to Dr. Radna's opinion is easily understood. As such, the ALJ did not traverse the substance of treating physician rule.
B. Residual Functional Capacity
Plaintiff argues that the ALJ erred in determining Plaintiff had the RFC to perform sedentary work with some restrictions on the grounds that the ALJ's determination was not supported by substantial evidence. (Pl. Br. 12-13.) Plaintiff specifically points to the ALJ's reliance on the opinions of the various independent examiners. First, Plaintiff challenges the ALJ's usage of Dr. Mills' opinion that Plaintiff could lift and carry up to 25 pounds, arguing that the ALJ did not acknowledge an addendum where Dr. Mills opined that Plaintiff was restricted from lifting over five pounds. (Id. referring to Tr. 18, 651.) The Court disposes of this argument first because there was no such opinion. Dr. Mills' addendum reiterated Plaintiff's ability to lift and carry up to 25 pounds and further noted that Plaintiff "did not make full effort with the ranges of motion on my examination." (Tr. 651.)
Second, Plaintiff argues that Drs. Mann and Renzoni did not provide opinions that directly supported the ALJ's RFC determination. (Pl. Br. 12-13.) This too is unpersuasive. As noted above, at step four of the five-step process, the ALJ determined that, subject to certain limitations, Plaintiff had the RFC "to perform sedentary work as defined" by 20 C.F.R. 404.1567(a). Under that regulation, sedentary work requires that Plaintiff be able to lift no more than 10 pounds at a time and occasionally lift light items. 20 C.F.R. 404.1567(a). "[A] sedentary job is defined as one which involves sitting," but may require some walking and standing. Id. The ALJ's RFC assessment is part of the fourth step of the five-step sequential process, and as such, the Plaintiff bears the burden. 20 C.F.R. § 404.1545(5); 20 C.F.R. § 404.1520 ("Before we go from step three to step four, we assess your residual functional capacity."); Smith v. Berryhill, 740 F. App'x 721, 726 (2d Cir. 2018) ("[Plaintiff] had a duty to prove a more restrictive RFC, and failed to do so."). The ALJ must weigh all of the available evidence available to make an RFC finding consistent with the record as a whole and may resolve disputes between conflicting evidence. Matta v. Astrue, 508 F. App'x 53, 56 (2d Cir. 2013); cf. Heaman v. Berryhill, 765 F. App'x 498, 500 (2d Cir. 2019) (noting that an ALJ may not "substitute his own expertise or view of the medical proof for the treating physician's opinion, [though] the ALJ may choose between properly submitted medical opinions.") (internal citations and quotation marks omitted). Notably, the ALJ's determination need not completely adopt any single medical opinion. Matta, 508 F. App'x at 56 (holding that the ALJ's RFC assessment need "not perfectly correspond with any of the opinions of medical sources" so long as it is "consistent with the record as a whole."). In making an RFC finding, an ALJ need not cite to any specific evidence or lack thereof so long as the requirements for the RFC finding are is reasonably inferable from substantial evidence. See Trepanier v. Comm'r of Soc. Sec. Admin., 752 F. App'x 75, 79 (2d Cir. 2018) (holding the ALJ did not err where the ability to meet an exertional requirement is inferable from other substantial evidence). And, because Plaintiff bears the burden, a lack of supporting evidence can constitute substantial evidence, especially when coupled with inconsistent evidence. Barry v. Colvin, 606 F. App'x 621, 622 (2d Cir. 2015).
Here, there is ample evidence supporting the ALJ's RFC assessment that Plaintiff was capable of performing sedentary work with the limitations noted by the ALJ. See 20 C.F.R. § 404.1567; cf. SSR 96-9p (S.S.A. July 2, 1996) (noting that that a finding of an RFC less than the full range of sedentary work may not equate with a decision of "disabled" depending on the claimant's age, education, and work experience). The ALJ considered all of Plaintiff's impairments and the medical evidence on the record. (See Tr. 14-18.) The ALJ was entitled to rely on Dr. Mill's opinion that Plaintiff could lift and carry 25 pounds. See Micheli, 501 F. App'x at 27-29 (finding that state examiner's opinion that plaintiff could meet the requirements of light work supported ALJ's RFC finding that plaintiff could do sedentary work). The other independent examiners' opinions and the findings of Plaintiff's other treating source, Dr. Schwartz, also supports the assessment. Dr. Mann opined that Plaintiff had a moderate disability and was capable of performing light duties. (Tr. 567-573.) Dr. Renzoni found that Plaintiff had full muscle strength in her legs, had no heel-toe-walking, that the sensation in her legs was within normal limits, and that her physical medical issues were resolved. (Id. at 686-87.) Dr. Schwartz noted only minor findings in his last exam and opined that Plaintiff could work. (Id. at 787-88.) Plaintiff's treatment was conservative as discussed above. See Tricarico, 681 F. App'x at 100; Hayes v. Berryhill, No. 16-CV-5259 (KBF), 2017 WL 4326118, at *10 (S.D.N.Y. Sept. 28, 2017); Burgess, 537 F.3d at 129. Though Plaintiff is correct that the findings from Drs. Mann, Renzoni, and Mills do not directly state that Plaintiff was capable of doing sedentary work, the ALJ was well within his discretion to consider all of the above medical evidence in making his assessment. Matta, 508 F. App'x at 56
There is additional evidence from Plaintiff herself strongly suggesting that Plaintiff is able to perform sedentary work. See Trepanier, 752 F. App'x at 78-79; Cichocki v. Astrue, 729 F.3d at 178 (holding that claimant's reported daily activities supported ALJ's RFC finding). Plaintiff took an 11-hour train ride. (Tr. 17.) She is taking online courses in pursuit of a bachelor's degree. (Id. 163-176.) She regularly attends her church and went on retreats at locations which required her to drive more than three hours to attend. (Id. at 168, 172, 331.) Plaintiff also told both doctors and the Workers' Compensation Board that she was able to walk a mile and sit for an hour before needing to change position. (Id. at 569, 676.) See Poupore, 566 F.3d at 306 (noting that claimant occasionally needing to shift positions or move does not preclude the ability to do sedentary work (citing Halloran, 362 F.3d at 33)).
Notably, none of these jobs require any overhead reaching. Tr. 191 --------
In sum, the ALJ's RFC assessment was supported by substantial evidence. The ALJ was within his discretion to resolve the conflicting evidence. Cage v. Comm'r of Soc. Sec., 692 F.3d 118, 122 (2d Cir. 2012). Here, the ALJ rightfully assessed Plaintiff's RFC from the substantial evidence on the record notwithstanding Dr. Radna's opinion and Plaintiff's subjective complaints. See Trepanier, 752 F. App'x at 78-79; Matta, 508 F. App'x at 56,
C. Vocational Expert Testimony
Plaintiff contends that the ALJ erred in relying on the testimony of VE Linda Stein in finding that there were jobs available in significant numbers in the national economy for someone with Plaintiff's limitations. (Pl. Br. 13-14.) The VE testified that Plaintiff could work as an addresser (68,660 jobs available nationally), surveillance systems monitor (120,270 jobs available nationally), telephone order clerk (185,890 jobs available nationally), and charge account clerk (184,050 jobs available nationally). (Tr. 19-20, 183-91). Plaintiff made her own estimates of the number of available jobs by comparing the Dictionary of Occupational Titles ("DOT") classifications of the representative occupations to statistics from the Bureau of Labor Statistics ("BLS"). (Pl. Br. 13-15.) Her estimates total 66,491, a significantly lower number than testified to by the VE. (Id. at 14.) Plaintiff further contends that, because of the supposed inaccuracy of the VE's testimony about the number of jobs that exist, the rest of the VE's testimony is unreliable. (Id.) Plaintiff's arguments are unpersuasive.
At step five of the five-step process, there is a limited burden shift to the Commissioner to show that there is a significant number of jobs in the national economy that Plaintiff can do. 20 C.F.R. §§ 404.1520(g), 416.920(g); Poupore, 566 F.3d 303 at 306. An ALJ may rely on a VE's testimony to meet that burden so long as the testimony is based on an RFC assessment supported by substantial evidence. Henry v. Colvin, No. 12-CV-6822 (KBF), 2015 WL 9238959, at *14 (S.D.N.Y. Dec. 17, 2015); see Calabrese v. Astrue, 358 F. App'x 274, 276-77 (2d Cir. 2009); Hill v. Berryhill, No. 1:17-CV-02090 (SDA), 2018 WL 4462362, at *11 (S.D.N.Y. Sept. 18, 2018) cf. SSR 00-4p (S.S.A. Dec. 4. 2000) (discussing the need for an ALJ to resolve any conflict between the VE's testimony and information in the DOT or its companion publication, the SOC). A VE does not need to identify with specificity the sources supporting their conclusion, at least where they identify them generally. McIntyre, 758 F.3d at 152. A VE's expertise may be used to supplement the definitions provided by the DOT. See Colvin v. Berryhill, 734 F. App'x 756, 759 (2d Cir. 2018). An ALJ may reasonably credit a VE's testimony on the basis of the expert's professional experience and clinical judgment as long as it is not undermined by evidence on the record. Id.
As discussed above, the RFC upon which the VE's testimony is based is supported by substantial evidence. The hypothetical the ALJ posed to the VE reflected Plaintiff's RFC. (Compare Tr. 14 with Tr. 188.) Based on that hypothetical, the VE testified that there were jobs in significant numbers that Plaintiff could do. (Id. at 189.) The VE testified that her testimony was consistent with the DOT and SOC, as well as her own expertise and training. (Id. at 190.) Plaintiff did not object to the VE's expertise, training, or the materials upon which the VE based their opinion. (Tr. 183-84.) As such, the ALJ did not err in relying on the VE's testimony. See McIntyre, 758 F.3d at 152.
In regard to the number of jobs in the national economy, Plaintiff cites to nothing to support her proposition that the VE may not rely on the DOT or that the VE must explicitly cross compare the DOT with statistics from elsewhere. The applicable regulations specifically reference the DOT and do not mention the BLS. See, e.g., SSR 00-4p (discussing conflicts between the VE's testimony and the DOT); SSR 82-41 (S.S.A. Feb. 26, 1979) (referencing the DOT in the context of identifying unskilled jobs); SSR 83-14 (S.S.A. Feb. 26, 1979) (specifically noting that the Social Security physical exertional requirements are the same as those in the DOT). As there is nothing to support Plaintiff's position, neither in her brief nor in the Court's own review of the relevant law, Plaintiff's argument is unavailing. As such, the VE's testimony that there exist more than 500,000 jobs in the national economy that Plaintiff could perform is enough to meet the Commissioner's burden to show a significant number of jobs. (Tr. 19-20.)
Plaintiff further argues, that as per her estimates, there is not a significant number of jobs that exist in the national economy which Plaintiff can do. (Pl. Br. 14-15.) However, even assuming that Plaintiff's numbers were correct, there is still a significant number of jobs. Neither the applicable regulations nor case law specifically defines what amount constitutes a "significant number." See Hanson v. Comm'r of Soc. Sec., No. 315CV0150GTSWBC, 2016 WL 3960486, at *13 (N.D.N.Y. June 29, 2016), adopted sub nom. Hanson v. Colvin, No. 315CV150GTSWBC, 2016 WL 3951150 (N.D.N.Y. July 20, 2016). However, the number is minimal. Id. Courts have held that that the lower threshold for a significant number may range from 9,000 to 25,000. See Garcia v. Berryhill, No. 17-CV-10064 (BCM), 2018 WL 5961423, at *13 (S.D.N.Y. Nov. 14, 2018) (collecting cases). Plaintiff's estimate of 66,491 jobs in the national economy is above this threshold and thus a significant number. (See Tr. 14-15.)
This Court finds that substantial evidence from the record supports the ALJ's decision denying Plaintiff's claim for disability insurance. Though the ALJ did commit a procedural error in failing to explicitly describe the factors he relied on if affording one of Plaintiff's treating doctor's opinion little weight, that error was harmless. The evidence discussed above constitutes substantial evidence supporting the ALJ's determination that Plaintiff's symptoms are not as severe as alleged; that she is capable of performing sedentary work, subject to certain limitations; and that there are a sufficient number of jobs that exist in significant numbers in the national economy that Plaintiff can perform.
For the foregoing reasons, this Court respectfully recommends that the Commissioner's Motion be GRANTED and Plaintiff's Motion be DENIED.
Respectfully submitted, Dated: June 19, 2019
New York, New York
KATHARINE H. PARKER
United States Magistrate Judge The parties shall have fourteen days from the service of this Report and Recommendation to file written objections pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days only when service is made under Fed. R. Civ. P. 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to by the parties)). If either party files written objections to this Report and Recommendation, the other party may respond to the objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Such objections shall be filed with the Clerk of the Court, with courtesy copies delivered to the chambers of the Honorable John G. Koeltl at the United States Courthouse, 500 Pearl Street, New York, New York 10007, and to any opposing parties. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b). Any requests for an extension of time for filing objections must be addressed to Judge Koetl. The failure to file these timely objections will result in a waiver of those objections for purposes of appeal. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).