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govinfo:USCOURTS-nynd-5_25-cv-00044-1
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
______________________________________________
ROBERT LEE T.,
Plaintiff,
v. 5:25-CV-44
(FJS/PJE)
COMMISSIONER OF SOCIAL SECURITY,
Defendant.
______________________________________________
APPEARANCES OF COUNSEL
HILLER COMERFORD INJURY IDA COMERFORD, ESQ.
& DISABILITY LAW
6000 North Bailey Avenue – Suite 1a
Amherst, New York 14226
Attorneys for Plaintiff
JUSTIN GOLDSTEIN LAW, PLLC JUSTIN M. GOLDSTEIN, ESQ.
38 Pond Valley Circle
Penfield, New York 14526
Attorneys for Plaintiff
SOCIAL SECURITY ADMINISTRATION KRISTINA D. COHN, ESQ.
Office of the General Counsel
6401 Security Boulevard
Baltimore, Maryland 21235
Attorneys for Defendant
SCULLIN, Senior Judge
MEMORANDUM-DECISION AND ORDER
I. INTRODUCTION
Pending before the Court is Magistrate Judge Dancks' Report and Recommendation, see
Dkt. No. 13, and Plaintiff's objections thereto, see Dkt. No. 14.
Case 5:25-cv-00044-FJS-PJE Document 17 Filed 03/30/26 Page 1 of 10
II. BACKGROUND
Plaintiff brought this action pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 1383(c)(3)
seeking judicial review of Defendant's final decision denying his application for Social Security
Disability benefits and Supplemental Security Income benefits. This Court referred the matter to
Magistrate Judge Dancks for a Report and Recommendation.
Both parties filed briefs, see Dkt. Nos. 10, 11, 12. After a thorough review of the parties'
arguments, the Administrative Record ("AR"), and the ALJ's decision denying Plaintiff's
application, Magistrate Judge Dancks issued a Report and Recommendation in which she
recommended that the Court deny Plaintiff's motion for judgment on the pleadings, grant
Defendant's motion or judgment on the pleadings, and affirm the Commissioner's decision. See
generally Dkt. No. 13. Plaintiff timely filed objections to those recommendations, see Dkt. No.
14.
III. DISCUSSION
A. Initial arguments before Magistrate Judge Dancks
In his initial brief, Plaintiff contended that "'[t]he [ALJ's] RFC [determination] was not
based on substantial evidence, as the ALJ cherry-picked the opinion and relied on stale opinion
evidence and her own lay opinion.'" See Dkt. No. 13 at 7 (quoting Dkt. No. 10 [Plaintiff's Brief]
at 15; see also id. at 15-26).
To the contrary, Defendant argued that, "in determining Plaintiff's RFC, the ALJ properly
considered the medical opinions of record, including the opinions of the State agency medical
consultants and the opinion of Plaintiff's treating physician, Dr. Robert Feldman . . . [and that]
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the ALJ's step fiving finding is supported by substantial evidence." See id. (citing Dkt. No. 11
[Defendant's Brief] at 7-18).
B. Plaintiff's objections to Magistrate Judge Dancks' Report and Recommendation
In his objections to Magistrate Judge Dancks' Report and Recommendation, Plaintiff
states that he objects to "Magistrate Judge Dancks[' finding that] there was no harmful error
pertaining to Plaintiff's argument that the RFC was not based on substantial evidence due to
cherry picking, lay opinion and reliance on stale opinion evidence," i.e., the same argument that
he raised in his initial brief. See Dkt. No. 14, Plaintiff's Objections, at 1 (citing Dkt. No. 10 at
15-26). Specifically, Plaintiff argues that Magistrate Judge Dancks' "determination pertaining to
allegations the ALJ relied on stale opinion evidence is not free of legal error." See id. Basically,
Plaintiff raises the same arguments that he raised in his initial brief; i.e., that the ALJ relied on
stale opinion evidence as a factor in her determination of Plaintiff's RFC.
C. 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.
§ 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
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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
After comparing Plaintiff's arguments in his initial brief and in his objections, it is clear
that Plaintiff raised the same arguments, in particular with regard to the issue of "stale" evidence,
in both of his submissions. Compare Dkt. No. 10 with Dkt. No. 14. Thus, the Court need only
satisfy itself that there is no clear error on the face of the record.
In her Report and Recommendation, Magistrate Judge Dancks addressed Plaintiff's
argument that the ALJ's reliance on the state agency medical consultants Dr. Vazquez Gonzalez's
and Dr. J. Koenig's opinions was improper because those opinions were stale. See Dkt. No. 13 at
8-11. After applying the appropriate legal standards to determine whether medical opinions are
stale, Magistrate Judge Dancks concluded that Plaintiff had "not carried his burden to show his
Case 5:25-cv-00044-FJS-PJE Document 17 Filed 03/30/26 Page 4 of 10
condition deteriorated after the challenged medical opinions were issued." See id. at 9. In fact,
Magistrate Judge Dancks explained that "[m]edical records generated after the reviews by the
State agency consultants do not reflect that Plaintiff's conditions deteriorated. To the contrary,
they actually show some improvement." See id. Specifically, she pointed to Plaintiff's February
5, 2019 visit with orthopedic specialists, at which "he acknowledged the pain in his left knee was
largely gone with ambulation, and he had no difficulty ambulating." See id. (citing T. 850). She
also noted that Plaintiff's "physical examination [at that visit] showed him to have 'full extension
flexion' to 135 degrees, no instability, and minor retropatellar crepitation." See id. (citing [T.
850]). She noted that "[t]he doctor concluded '[a]dequate progress after partial knee
replacement,' and Plaintiff should 'continue with home-based exercise program . . . .'" See id.
(quoting [T. 850]).
Moreover, Magistrate Judge Dancks noted that, at an April 4, 2019 appointment, "the
doctor noted Plaintiff was doing nicely and was not having much ambulatory discomfort." See
id. (citing T. 1070). At that time, "Plaintiff's main complaint was having some numbness in the
lateral aspect of his incision, but upon examination he had full extension to 140 degrees, no
instability, and a smooth gait." See id. (citing [T. 1070]). For the remainder of 2019, Plaintiff
reported to doctors that he was doing well; and, at Plaintiff's October 29, 2019 appointment,
"[t]he doctor noted Plaintiff's right knee had improved by 70 percent since surgery." See id. at 9-
10 (citing [T. 1048]).
Magistrate Judge Dancks also reviewed the record for the years after 2019. She noted
that, "[s]tarting in 2020, Plaintiff reported having worsening lower back pain with associated
muscle spasms. See id. at 10 (citing T. 1015, 1024). She noted that, "[a]t each of the
appointments where he reported lower back pain, the examination showed Plaintiff used no
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assistive device, had 5/5 motor strength in his lower extremities, he had no sensory deficits, and
his straight-leg raise testing was negative bilaterally." See id. (citing T. 1018, 1027, 1775). In
February 2024, "Plaintiff reported he was doing great following his January 2024 right knee
meniscectomy surgery and most of his right knee pain was gone aside from a little aching at the
end of the day." See id. (citing T. 2063). Furthermore, "Plaintiff reported he felt 95 percent
better and only occasionally needed a little Motrin." See id. (citing T. 2064, 2100-01).
Magistrate Judge Dancks noted that "the ALJ found that this later medical evidence made
the opinions of Dr. Gonzalez and Dr. Koenig that Plaintiff could perform a range of light
exertional work only partially persuasive, and thus the ALJ further limited Plaintiff to sedentary
work." See id. (citing T. 1169, 1177-78). Magistrate Judge Dancks also explained that, "[a]s
highlighted by the ALJ, Plaintiff engaged in substantial gainful activity from July 1, 2021,
through the date of the decision which clearly undermines Plaintiff's claim of significant
deterioration." See id. (citing T. 1161; 20 C.F.R. §§ 404.1571, 416.971 (employment during any
period of claimed disability may be probative of a claimant's ability to work)).
Finally, Magistrate Judge Dancks addressed Plaintiff's argument that "'the ALJ d[id]n't
address, cite or discuss any evidence after Plaintiff's first hearing and decision." See id. (quoting
Dkt. No. 10 at 20). Magistrate Judge Dancks concluded that argument was not accurate because,
although Plaintiff's first hearing was June 4, 2020, and the prior ALJ rendered her decision on
August 20, 2020, "the ALJ explicitly cited Plaintiff's treatment notes from July 9, 2020, March 3,
2021, March 17, 2021, [and] April 20, 2021." See id. (citing T. 1173-74). Additionally, she
noted that "Plaintiff returned to work in July 2021, which would arguably find him not disabled
at step one, therefore obviating the need to discuss any medical evidence after July 2021 in
detail." See id. at 11 (citing T. 1161-63; 20 C.F.R. §§ 404.1520(b), 416.920(b) ("If you are
Case 5:25-cv-00044-FJS-PJE Document 17 Filed 03/30/26 Page 6 of 10
working and the work you are doing is substantial gainful activity, we will find that you are not
disabled regardless of your medical condition.")). For all these reasons, Magistrate Judge
Dancks found that Plaintiff had failed "to carry his burden of showing a sufficient deterioration
in his condition which would render the opinions of the State agency consultants stale [and,
therefore,] the ALJ properly relied on those opinions." See id.
Furthermore, in response to Plaintiff's argument that the ALJ relied on her own lay
opinion in arriving at her assessed RFC, Magistrate Judge Dancks disagreed, finding that the
ALJ's determination was supported by substantial evidence. See id. at 13. Magistrate Judge
Dancks noted that, although "[t]he ALJ found Dr. Gonzalez's and Dr. Koeing's opinions to have
some persuasive value[,] . . . she was not persuaded by their opinions that Plaintiff 'could lift
and/or carry 20 pounds occasionally and 10 pounds frequently, stand and/or walk for a total of
six hours in an[] eight-hour workday, occasionally balance, climb ladders/ropes/scaffolds, kneel,
and crawl, and could tolerate exposure to hazards such as machinery and heights on an unlimited
basis.'" See id. at 14 (quoting T. 1177 (citing T. 88-100, 112-125)). Magistrate Judge Dancks
explained that "[t]he ALJ was not persuaded by all of these functional limitations because the
State agency reviewers did not perform physical examinations of Plaintiff." See id. (citing [T.
1177]). Specifically, "[t]he ALJ noted in contrast to their opinions 'the evidence of record
through June 30, 2021 shows the claimant to have some difficulty ambulating, which supports
restricting him to sedentary exertional work, and placing some additional postural and
environmental limitations on his physical ability to perform work-related activities.'" See id.
(quoting T. 1177-78).
Likewise, Magistrate Judge Dancks noted that the ALJ found the opinion of Dr. Ganesh,
who completed an internal medicine examination of Plaintiff on January 3, 2019, to have some
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persuasive value. See id. (citing T. 1178). However, the ALJ "declined to adopt the
determination of Dr. Ganesh that Plaintiff had 'severe limitations for standing, walking, and
climbing, and that his use for a walker was necessary' because at the time of Dr. Ganesh's
examination, Plaintiff was "'still in the healing period following his recent partial left knee
replacement surgery on December 17, 2018.'" See id. at 14-15 (quoting T. 1178 (citing T. 841)).
Magistrate Judge Dancks also noted that "[t]he ALJ also declined Dr. Ganesh's opinion of
Plaintiff needing a walker because Dr. Feldman opined on February 5, 2019, and June 2, 2020,
that Plaintiff 'did not require the use of a cane or other assistive device.'" See id. at 15 (quoting
T. 1178 (citing T. 876, 1075)).
The ALJ also declined to adopt orthopedic specialist Dr. Brett Greenky's February 5,
2019, April 4, 2019, August 6, 2019, and October 29, 2019, work related assessments because,
"[a]lthough she found them to have some persuasive value, they were based on the Workers'
Compensation Board standards which are not binding under the rules of Social Security." See id.
(citing T. 1179 (citing 20 C.F.R. §§ 404.1504, 416.904)).
Based on these examples, Magistrate Judge Dancks found that "the ALJ did more than
merely state that a medical source opinion was not consistent with the overall medical record and
thoroughly explained how she arrived at the persuasive value of each opinion" See id. (citation
omitted). She also concluded that "[t]he ALJ provided ample explanation for the persuasive
values she assigned to the various medical opinions and formulated an RFC consistent with the
entirety of the medical record." See id. (citing T. 1177-81).
Finally, with regard to the ALJ's finding regarding Dr. Feldman's opinion, Magistrate
Judge Dancks concluded that the ALJ properly evaluated the persuasiveness of Dr. Feldman's
opinion and found that Plaintiff's argument that the ALJ had offered little connection to evidence
Case 5:25-cv-00044-FJS-PJE Document 17 Filed 03/30/26 Page 8 of 10
to support her determination regarding Dr. Feldman's opinion without merit. See Dkt. No. 13 at
15. Moreover, Magistrate Judge Dancks' concluded that the ALJ's finding that Dr. Feldman's
opinion was less persuasive because it was not supported by his own treatment records was
supported by the record. See id. at 16.
Furthermore, regarding the issue of consistency, Magistrate Judge Dancks noted that "the
ALJ compared Dr. Feldman's limitations with those of Drs. Gonzalez, Koenig, Ganesh, and
Greenky, 'none of whom found the claimant to have any limitation in his ability to move his
head, neck, hand, fingers, or arms.'" See id. at 17 (quoting T. 1181). With regard to Plaintiff's
argument that the ALJ should have adopted Dr. Feldman's opinion regarding absenteeism and
time off task, Magistrate Judge Dancks noted that the ALJ had "noted this limitation was . . .
inconsistent with other medical evidence because no other medical source placed any limitation
on Plaintiff's need to take unscheduled breaks." See id. (citing T. 1181). Finally, Magistrate
Judge Dancks noted that "Dr. Feldman's own findings showed Plaintiff has normal attention and
concentration. . . . [and] [t]he ALJ also noted Dr. Feldman's opinion of Plaintiff's absenteeism
was inconsistent with the intact musculoskeletal and neurological findings on exam, and with
evidence that Plaintiff had been working on a continuous basis since July 2021." See id. (citing
T. 1181). For all these reasons, Magistrate Judge Dancks found no error in the ALJ's evaluation
of Dr. Feldman's opinion. See id.
Having reviewed Magistrate Judge Dancks' analysis of the entire record and her
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 Dancks'
recommendations.
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IV . CONCLUSION
Accordingly, for the above-stated reasons, the Court hereby
ORDERS that Magistrate Judge Dancks' Report and Recommendation, see Dkt. No. 13,
is ADOPTED AND ACCEPTED in its entirety; and the Court further
ORDERS that Plaintiff's motion for judgment on the pleadings, see Dkt. No. 10, is
DENIED; and the Court further
ORDERS that Defendant's motion for judgment on the pleadings, see Dkt. No. 11, 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 30, 2026
Syracuse, New York
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