Ellerson v. Commissioner of Social Security

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK _____________________________________ KAYLA M. E., Plaintiff, v. 5:24-CV-0712 (GTS/TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. _____________________________________ APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ. Counsel for Plaintiff 250 South Clinton Street - Suite 210 Syracuse, New York 13202 SOCIAL SECURITY ADMINISTRATION FERGUS J. KAISER, ESQ. Counsel for Defendant Office of the General Counsel 6401 Security Boulevard Baltimore, Maryland 21235 GLENN T. SUDDABY, United States District Judge DECISION and ORDER Currently before the Court, in this Social Security action filed by Kayla M.E. (“Plaintiff”) against the Commissioner of Social Security (“Defendant” or “the Commissioner”) pursuant to 42 U.S.C. § 405 (g), are (1) the Report and Recommendation of United States Magistrate Judge Thérèse Wiley Dancks recommending that Plaintiff’s motion for judgment on the pleadings be denied, the Commissioner’s motion for judgment on the pleadings be granted, and the Commissioner’s decision be affirmed, (2) Plaintiff’s objection to the Report and Recommendation, and (3) Defendant’s response to Plaintiff’s objection. (Dkt. Nos. 13, 14, 15.) For the reasons set forth below, the Report and Recommendation is accepted and adopted in its entirety, Plaintiff’s motion for judgment on the pleadings is denied, the Commissioner’s motion for judgment on the pleadings is granted, and the Commissioner’s decision is affirmed. I. RELEVANT BACKGROUND A. Magistrate Judge Dancks’ Report and Recommendation Generally, in her Report and Recommendation, Magistrate Judge Dancks determined that the ALJ’s RFC finding and assessment of the opinion evidence is supported by substantial evidence and contains no legal error. (Dkt. No. 13.) Specifically, Magistrate Judge Dancks determined that the ALJ properly considered the factors of consistency and supportability when assessing the medical opinion from Dr. Rahner and LCSW MacNeill, and provided reasons supported by substantial evidence to find that, although that opinion is generally supported by the evidence, it was only partially persuasive. Magistrate Judge Dancks found that the ALJ had fully explained why she found the relevant portion of that opinion (that Plaintiff would be off- task more than 20-percent of the workday and absent from work three days per month) less persuasive, specifically because it lacked evidentiary support and was inconsistent with other limitations included in the opinion. Magistrate Judge Dancks also rejected Plaintiff’s argument that the ALJ had “cherry-picked” only evidence favorable to her conclusion, and found that the fact that Plaintiff could point to some evidence that might suggest greater limitations does not constitute the existence of an error because “the issue is whether the ALJ’s determination was properly supported by the record, not whether a contrary finding might also have been supported.” (Id. at 19-20.) — 2 — B. Plaintiff’s Objection to the Report and Recommendation Generally, in her Objection to the Report and Recommendation, Plaintiff asserts that Magistrate Judge Dancks erred in finding the ALJ’s RFC finding was proper because the ALJ failed to assess the consistency of Dr. Rahner’s and LCSW MacNeill’s opinion in accordance with CFR § 416.920c(c)(2) and SSR 11-2p. First, Plaintiff argues that the ALJ’s finding that Plaintiff has the RFC to perform basic work because Plaintiff is enrolled in college without accommodations (except for extra testing time) is in error and runs afoul of SSR 11-2p. More specifically, Plaintiff argues the ALJ has misinterpreted Plaintiff’s testimony that she is given “unlimited time” to complete tests as somehow being consistent with the ability to work because such an accommodation would not be permitted in a work setting and thus is not an applicable gauge for determining work limitations. (Dkt. No. 14, Point 1.) Second, Plaintiff argues the ALJ’s consistency analysis failed to properly assess the opinion of Dr. Rahner and LCSW MacNeill in light of all of the relevant evidence. More specifically, Plaintiff argues that, although Magistrate Judge Dancks cited to Dr. Long’s consultative examination and treatment records to support the ALJ’s finding that Plaintiff has a normal attention span, such consistency cannot be measured against only some evidence but rather must be measured against all the medical evidence, and the ALJ here overlooked the following evidence in her consistency analysis: (a) a school psychologist indicated Plaintiff had “significantly below average” working memory skills; (b) Vocational Rehabilitation Counselor Sharon Kaufman indicated Plaintiff had problems with “work skills” and was reading at a sixth — 3 — grade level or below; and (c) a 2019 STAR reader assessment during Plaintiff’s freshman year showed that Plaintiff scored at a grade equivalency of 5.1. (Id.) C. Commissioner’s Response to Plaintiff’s Objection Generally, in his response to Plaintiff’s objection, the Commissioner asserts that Plaintiff’s objections should be rejected for merely reasserting the same arguments from her initial brief and reply brief. (Dkt. No. 15; Dkt. No. 14, at 1-3; Dkt. No. 7, at 14-16; Dkt. No. 12, at 1.) In addition, the Commissioner argues that Plaintiff’s disagreements with the Magistrate Judge’s conclusions are simply an attempt to relitigate issues that have already been argued and decided, and that the ALJ properly considered all the evidence in the record. Thus, the Commissioner argues, Plaintiff’s disagreement lies with the ALJ’s weighing of the evidence rather than asserting any true legal or factual error in either the ALJ’s or the Magistrate Judge’s analysis. (Dkt. No. 15.) II. APPLICABLE LEGAL STANDARD A district court reviewing a magistrate judge’s report and recommendation “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). Parties may raise objections to the magistrate judge’s report and recommendation, but they must be “specific written objections,” and must be submitted “[w]ithin 14 days after being served with a copy of the recommended disposition.” Fed. R. Civ. P. 72(b)(2); accord 28 U.S.C. § 636 (b)(1)(c). “A judge of the court shall make a de novo determination of those portions of the [Report and Recommendation] . . . to which objection is made.” 28 U.S.C. § 636 (b)(1)(c); accord Fed. R. Civ. P. 72(b)(2). “Where, however, an objecting party makes only conclusory or general objections, or simply reiterates his original — 4 — arguments, the Court reviews the Report and Recommendation only for clear error.” Caldwell v. Crosset, 09-CV-0576, 2010 WL 2346330 , at * 1 (N.D.N.Y. June 9, 2010) (quoting Farid v. Bouey, 554 F. Supp. 2d 301, 307 (N.D.N.Y. 2008)) (internal quotation marks omitted). Additionally, a district court will ordinarily refuse to consider an argument that could have been, but was not, presented to the magistrate judge in the first instance. See Zhao v. State Univ. of N.Y., 04-CV-0210, 2011 WL 3610717 , at *1 (E.D.N.Y. Aug. 15, 2011) (“[I]t is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks and citation omitted); Hubbard v. Kelley, 752 F. Supp. 2d 311, 312-13 (W.D.N.Y. 2009) (“In this circuit, it is established law that a district judge will not consider new arguments raised in objections to a magistrate judge's report and recommendation that could have been raised before the magistrate but were not.”) (internal quotation marks omitted). III. ANALYSIS After carefully reviewing the relevant findings in this action, including Magistrate Judge Dancks’ thorough Report and Recommendation and Plaintiff’s objection thereto, the Court can find no clear error in the Report and Recommendation: Magistrate Judge Dancks employed the proper standards, accurately recited the facts, and reasonably applied the law to those facts. The Court would add the following points: First, the Court finds that much of Plaintiff’s objection merely reasserts arguments presented in her initial Brief. (Compare Dkt. No. 14 [Obj.] at Point 1 with Dkt. No. 7 [Pltf. Brief], at 12 on the matter of supportability, and Dkt. No. 14 at Point 1 with Dkt. No. 7, at 14-15 on the matter of consistency.) As a result, the Court finds that certain “challenged” portions of — 5 — the Report and Recommendation warrant only a clear-error review. See, supra, Part II of this Decision and Order. Further, because there is no clear error on the face of the Report and Recommendation, the Courts finds that it survives initial review. Second, Plaintiff’s arguments comprising her objection do not suggest any error in Magistrate Judge Dancks’ decision, clear or otherwise. Plaintiff’s attempt to argue that Magistrate Judge Dancks’ recognition of the fact that the ALJ had explicitly relied upon the fact that Plaintiff receives extra time to take tests in college is an error because such evidence does not suggest an ability to function effectively in the workplace is unavailing. Not only is this, at its core, an argument as to why the ALJ’s decision is incorrect as opposed to an objection to the Magistrate Judge’s findings, it is also an argument that Plaintiff could have raised in her initial briefings and therefore does not constitute a true objection to the Report and Recommendation and does not merit more than clear-error review. Because, as Magistrate Judge Dancks discussed, the ALJ’s consistency finding was based on far more than just the fact of Plaintiff’s college attendance with only testing accommodations, the Court finds no clear error in the overall conclusion that the ALJ’s consistency finding was supported by substantial evidence, whether or not Plaintiff is correct that the existence of testing accommodations somehow does not support the ALJ’s RFC finding. Further, Plaintiff’s arguments that the ALJ erred in relying on the opinion of Dr. Long despite other evidence showing greater deficits, and that the statements of special education teacher Ms. Kash do not present a complete picture of Plaintiff’s functioning in the workplace, again not only do not represent an actual objection to Magistrate Judge Dancks’ findings (but rather merely attempt to argue further why the ALJ’s decision is not supported), but also ignore — 6 — the fact that the ALJ considered and weighed all the evidence of record and explained her consistency finding as to the opinion of Dr. Rahner and LCSW MacNeill. In essence, Plaintiff's various purported objections amount to no more than a request for this Court to reweigh the evidence, which, as Magistrate Judge Dancks firmly noted, this Court is not permitted to do. For these reasons, the Court finds no error in the Report and Recommendation. ACCORDINGLY, it is ORDERED that Magistrate Judge Dancks’ Report and Recommendation (Dkt. No. 13) is ACCEPTED and ADOPTED in its entirety; and it is further ORDERED that Plaintiff's motion for judgment on the pleadings (Dkt. No. 7) is DENIED; and it is further ORDERED that the Commissioner’s motion for judgment on the pleadings (Dkt. No. 11) is GRANTED; and it is further ORDERED that the Commissioner’s determination is AFFIRMED; and it is further ORDERED that Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. Dated: September 24, 2025 Syracuse, New York U.S. District Judge