govinfo:USCOURTS-nynd-1_24-cv-00628-1

UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF NEW YORK 
______________________________________________ 
 
BILLY M. S., 
 
 
     Plaintiff, 
 
   v.       1:24-CV-628 
            (FJS/PJE) 
COMMISSIONER OF THE SOCIAL SECURITY 
ADMINISTRATION, 
 
     Defendant. 
______________________________________________ 
 
APPEARANCES     OF COUNSEL 
 
DENNIS KENNY LAW    KATHERINE USEWICZ, ESQ. 
288 North Plank Road 
Newburgh, New York 12550 
Attorneys for Plaintiff 
 
SOCIAL SECURITY ADMINISTRATION HUGH DUN RAPPAPORT, ESQ. 
6401 Security Boulevard    KATHRYN POLLACK, ESQ. 
Baltimore, Maryland 21235 
Attorneys for Defendant 
 
SCULLIN, Senior Judge 
 
MEMORANDUM-DECISION AND ORDER 
 
I. INTRODUCTION 
 
 Pending before the Court are Magistrate Judge Evangelista's Report-Recommendation 
and Order, see Dkt. No. 17, Plaintiff's objections thereto, see Dkt. No. 18, and Defendant's 
response to Plaintiff's objections, see Dkt. No. 20. 
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II. BACKGROUND 
 Plaintiff brought this action pursuant to 42 U.S.C. § 405(g).  He sought judicial review of 
Defendant's final decision denying his application for disability insurance ("DIB") and 
supplemental security income ("SSI") benefits.  See Dkt. No. 1.  This Court referred the matter to 
Magistrate Judge Evangelista for a Report and Recommendation. 
 Both parties filed briefs.  See Dkt. Nos. 9, 15, 16.  After a thorough review of the parties' 
arguments, the Administrative Record ("AR"), and the ALJ's decision denying Plaintiff's 
application, Magistrate Judge Evangelista issued a Report-Recommendation and Order in which 
he recommended that the Court deny Plaintiff's cross-motion, grant Defendant's cross-motion 
and affirm the Social Security Administration's decision.  See Dkt. No. 17 at 31-32.  Plaintiff 
timely filed objections to those recommendations, see Dkt. No. 18; and Defendant filed a 
memorandum of law in opposition to Plaintiff's objections, see Dkt. No. 20. 
 
III. DISCUSSION 
A. Initial arguments before Magistrate Judge Evangelista 
 In his brief, Plaintiff argued that the ALJ "committed multiple errors of law and fact, the 
Commissioner's decision was not supported by substantial evidence and was incorrect as a matter 
of law."  See Dkt. No. 9 at 4.  Plaintiff further claimed that the "ALJ never inquired at the hearing 
concerning medical or treating source opinions about the issue of [his] disability and what role, if 
any, substance abuse plays."  See id. at 22.  Furthermore, Plaintiff asserted that the ALJ was 
required to develop evidence "from treating sources that [he] is impaired in the absence of 
substance abuse."  See id.  Finally, Plaintiff argued that (1) substance abuse was not a 
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contributing factor material to the ALJ's disability determination; (2) he satisfied the Listing 
12.05 criteria for an intellectual disorder; and (3) he was unable to perform any type of 
substantial gainful activity "with or without the presence of a co-existing substance abuse 
disorder."  See id. at 28; see id. at 22, 24; Dkt. No. 16 at 4, 6. 
 To the contrary, Defendant argued that substantial evidence supported the ALJ's 
determination and, therefore, that the Court should affirm that determination.  See, generally, 
Dkt. No. 15.  Specifically, Defendant contended that (1) Plaintiff's impairments do not meet the 
Listing 12.05 criteria; (2) the ALJ properly considered the materiality of Plaintiff's substance 
abuse disorder; and (3) the ALJ's step-five analysis was based on the vocational expert's 
testimony and satisfied Defendant's burden.  See id. at 9-22. 
 
B. Plaintiff's objections to Magistrate Judge Evangelista's report and recommendation 
 
In his objections to Magistrate Judge Evangelista's report and recommendation, Plaintiff 
argues that the ALJ's decision was infected with errors of law and fact and that there is not 
sufficient evidence in the record to support the ALJ's conclusion that he is not disabled.  See Dkt. 
No. 18, Plaintiff's Objections, at 6-8.  Furthermore, Plaintiff argues that substance abuse is not a 
material factor contributing to his disability.  See id. at 8-9.  In sum, Plaintiff asserts that"[t]here 
is no substantial evidence of record to support the ALJ's decision that substance abuse is a 
material factor determinative of Plaintiff's disability, because the ALJ misconstrued Plaintiff's 
impairments and how they interact with each other to render him disabled."  See id. at 9.   
Plaintiff contends that, "even aside from the substance abuse issue, [he] would have, inter 
alia, severe limitations in performance of substantial gainful activity, as noted by SSA's 
consultative examiners[.]  The totality of the opinion evidence, educational evidence, testimonial 
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evidence, and medical and non-medical evidence of record supports a finding that [he] is 
incapable of substantial gainful activity."  See id. at 9-10.  Thus, Plaintiff argues that "[a]ny other 
conclusion is based on errors of both law and fact and requires remand for further administrative 
proceedings so that the ALJ may correct those errors."  See id. at 10. 
 
C. Defendant's response to Plaintiff's objections 
 Defendant argues that Plaintiff's objections "merely invite[] this Court to rehash the same 
arguments that Plaintiff set forth in the original papers."  See Dkt. No. 20 at 1 (citing "P.Mem." 
(ECF No. 9) & "P Rply" (ECF No. 16)) (footnote omitted).
1  Moreover, Defendant argues that 
Plaintiff's objection "does not even mention – let alone make any attempt to dispute – a single 
statement in the R&R."  See id.   
 Defendant contends that "[o]bjections to R&Rs that 'attempt to engage the district court 
in a rehashing of the same arguments set forth in the original [papers] . . . . reduce the 
magistrate's work to something akin to a meaningless dress rehearsal.'"  See id. at 1-2 (quoting 
Owusu v. N.Y. State Ins., 655 F. Supp. 2d 308 (S.D.N.Y . 2009) (cleaned up)).   
 Finally, Defendant explains that "'[w]hen a party . . . simply reiterates his original 
arguments, the Court reviews the Report and Recommendation only for clear error.'"  See id. 
(quoting Jackson v. Morgenthau, No. 07-2757, 2009 WL 1514373, at *1 (S.D.N.Y . May 28, 
2009)).  Therefore, Defendant asserts that, "[f]ore the reasons that Judge Evangelista explained in 
 
1 Defendant notes that "Plaintiff appears to have populated literally every page of the argument in 
the Objection by copying-and-pasting significant amounts of text from the original papers.  
Compare Obj. at 5 with P.Mem. at 6-7, 17; compare Obj. at 6 with P.Mem. at 7-8, 16-17, 24-25; 
compare Obj. at 7 with P.Mem. at 3-4, 13-14, 17-19, 22-24; compare Obj. at 8 with P.Mem. at 
14, 20-23, 25 and with P.Reply at 4-5)  (Citations herein refer to the footers of the original 
papers.)."  See Dkt. No. 20 at 1 n.2. 
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his well-reasoned R&R, and for the reasons that the Commissioner explained in his original 
papers (ECF No. 15), Plaintiff has not come within shouting distance of establishing that Judge 
Evangelista committed any clear error when he rejected the arguments that Plaintiff presented in 
his original papers."  See id.  
 
D. Standard of review 
 This 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); 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 Notes: 1993 Addition).  Likewise, if an 
objection simply rehashes "the same arguments and positions taken in the original papers 
submitted to the magistrate judge," "the Court subjects that portion of the report-
recommendation . . . to only clear error review."  See 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. 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))).  
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After appropriate review, "the court may accept, reject or modify in whole or in part, the findings 
or recommendations made by the magistrate judge."  28 U.S.C. § 636(b)(1)(C). 
 
E. Analysis 
 As Defendant correctly points out, Plaintiff's objections are, in sum and substance, the 
same arguments that he raised in his initial brief.  Thus, the Court need only satisfy itself that 
there is no clear error on the face of the record. 
 In his Report-Recommendation and Order, Magistrate Judge Evangelista thoroughly 
addressed each of Plaintiff's objections, reviewed the ALJ's analysis of the evidence in the record 
in light of those objections and the conclusions that the ALJ drew based on the record evidence.  
For example, with regard to Plaintiff's argument that the record lacked a treating source opinion 
addressing the effects of his substance abuse, Magistrate Judge Evangelista found that, in fact, 
"the record . . . contain[ed] plaintiff's treatment records from his treating physician, Dr. 
Taniguchi, and treatment records and examination reports from various treatment providers that 
account[ed] for his substance abuse."  See Dkt. No. 17, Report-Recommendation and Order, at 
13 (citing T. at 451-54, 462-65, 468-73, 475-84, 491-539, 595-626, 628-732, 739-828, 842-80).  
Moreover, Magistrate Judge Evangelista found that "[t]he treatment providers at New Life 
Manor noted that plaintiff 'meets diagnostic criteria for Substance Use Disorder – Alcohol – 
severe, Cocaine – severe, Marijuana – severe and Nicotine Dependence.  Client presents with 
substantial deficits in functional skills and an inability to maintain stable employment as well as 
interpersonal relationships' and analyzed his level of impairment resulting from substance 
abuse.'"  See id. (citing [T.] at 477, 478-80).   
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 With regard to Plaintiff's objections about the ALJ's RFC determination, Magistrate Judge 
Evangelista noted that "the ALJ considered the medical opinions of record and plaintiff's medical 
treatment records."  See id. at 23.  Specifically, he noted that "the ALJ considered the medical 
opinion of Dr. Jason Taniguchi, D.O., plaintiff's treating physician . . . [and] noted that on May 
13, 2021, Dr. Taniguchi opined that plaintiff 'has no limitations in the ability to lift and carry, 
stand and/or walk, sit, push and/or pull . . . .'"  See id. (quoting T. at 32 (citing Exh. B2F, T. at 
450-54)).  In addition, the ALJ considered the opinion of consulting examiner Alison Murphy, 
Ph.D., see id., and "noted Dr. Muphy's opinion that 'the results of the present evaluation appear to 
be consistent with substance abuse and cognitive problems but, in itself, this does not appear to 
be significant enough to interfere with the claimant's ability to function on a daily basis[,]' see 
id." (quoting T. at 32-33 (citing Exh. B14F, T. at 566-70).  Ultimately, the ALJ found this opinion 
"'not persuasive, because the overall evidence supports greater limitations with his impairments, 
including substance use disorders while abusing substances.  In addition, the opinion is internally 
inconsistent, as the consultative examiner opined that the claimant's impairments are not 
significant enough to interfere with his ability to function on a daily basis, which would be 
consistent with no-"severe" impairments.  However, the consultative examiner did note some 
moderate limitations, which would support a finding of "severe" impairments.'"  See id. at 23-24 
(quoting [T] at 33).   
 Magistrate Judge Evangelista also noted that the ALJ reviewed consultative physician 
Paul Mercurio, MD.'s opinion that Plaintiff had "'mild limitation for activities requiring good 
speaking ability[,]' and 'no limitations for hearing . . . sitting, standing, walking, climbing stairs, 
bending, lifting, carrying, kneeling, reaching, or handling objects.'"  See id. at 24 (quoting T. at 
33 (citing Exh. B15F, T. at 572-76)).  "The ALJ determined this opinion and the opinion of 
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consultative physician Scott Verni's to be 'persuasive, as it is supported by a thorough exam and 
is consistent with the findings on exam and overall evidence."  See id. at 24 (quoting T. at 33 
(citing Exh. B15F, T. at 572-76)).  In addition, the ALJ considered treating provider Samantha 
Cesear, MHC-LP's opinions, the findings of the state consultative examiners, and the state 
psychological consultants."  See id. at 25-26.   
 Magistrate Judge Evangelista also noted that "[t]he ALJ further considered the effects of 
plaintiff's substance abuse disorder, concluding that plaintiff 'could perform a wide range of work 
at all exertional levels if he stopped his substance use.  The evidence shows that the claimant 
reported being unable to work due to his substance abuse treatment rather than his other 
impairments.'"  See Dkt. No. 17 at 26 (quoting T. at 37 (citing Exh. B8F, T. at 496, 499)).   
 After reviewing the ALJ's analysis of the opinion evidence, Magistrate Judge Evangelista 
concluded that the analysis "'of the opinion evidence is supported by substantial evidence in that 
he accurately discussed the opinions and provided sufficient reasons for the weight given to each 
opinion.'"  See id. (quoting Michelle M. v. Comm'r of Soc. Sec., No. 3:18-CV-1065 (TWD), 2020 
WL 495170, at *7 (N.D.N.Y . Jan. 30, 2020)).  Magistrate Judge Evangelista also noted that the 
ALJ had discussed Plaintiff's subjective reports in his medical treatment records and had 
concluded that Plaintiff's "'medically determinable impairments could reasonably be expected to 
produce the alleged symptoms, and that the claimant's statements concerning the intensity, 
persistence, and limiting effects of these symptoms are generally consistent with the evidence 
when the substance use is included.'"  See id. (quoting T. at 32, see T. at 30-32).  In sum, 
Magistrate Judge Evangelista concluded that "the ALJ did not err in his assessment of the 
medical evidence."  See id. (citation omitted). 
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 Magistrate Judge Evangelista also noted that "'[p]laintiff does not identify any particular 
portions of the RFC that [he] contends are unsupported.'"  See id. at 27 (quoting Joseph J.B., 
2024 WL 4217371, at *11 (quoting Nichole K. v. Comm'r of Soc. Sec., No. 1:23-CV-858 (EAW), 
2024 WL 3022592, at *7 (W.D.N.Y . June 17, 2024)).  Instead, plaintiff merely disagreed with 
how the ALJ weighed the evidence.  See id. (citations omitted).  Magistrate Judge Evangelista 
concluded that, because "'the ALJ's analysis of the medical and opinion evidence of record 
indicates a detailed review of such evidence with sufficient explanation to support the RFC 
determination[,]' it is supported by substantial evidence, and remand is not warranted on this 
ground."  See id. (quotation and other citation omitted). 
 Magistrate Judge Evangelista next discussed Plaintiff's argument that the ALJ's step-five 
determination was not supported by substantial evidence.  After providing hypotheticals to a 
V ocational Expert at the hearing, the ALJ determined that, if Plaintiff "'stopped the substance 
use, considering [plaintiff's] age, education, work experience, and residual functional capacity, 
there have been jobs that exist in significant numbers in the national economy that [plaintiff] can 
perform.'"  See id. at 29 (quoting T. at 38).  The ALJ also noted that, "'[e]ven if the claimant 
stopped substance use, [plaintiff's] ability to perform work at all exertional levels has been 
compromised by nonexertional limitations.'"  See id. (quoting [T. at 38]).  Magistrate Judge 
Evangelista noted that "the ALJ relied on the VE's testimony to conclude that 'given all of these 
factors [plaintiff] would be able to perform the requirements of representative occupations' of a 
small parts assembler, marker, or laundry worker."  See id. at 29-30 (quoting [T.] at 39).   
 Magistrate Judge Evangelista acknowledged Plaintiff's argument that he was "unable to 
perform any of the jobs the VE listed for many reasons."  See id. at 30 (citing Dkt. No. 9 at 27-
28).  Magistrate Judge Evangelista, however, concluded that "[P]laintiff['s] arguments 
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amount[ed] to a disagreement with the weighing of the evidence supporting the ALJ's RFC 
determination."  See id. (citing T. at 29, 37) (other citation omitted).   
 Having reviewed Magistrate Judge Evangelista's analysis of Plaintiff's objections to the 
ALJ's determination, the Court finds no clear error regarding Magistrate Judge Evangelista's 
conclusion that there is substantial evidence in the record to support the ALJ's decision. 
 
IV . CONCLUSION 
 Accordingly, for the above-stated reasons, the Court hereby 
 ORDERS that Magistrate Judge Evangelista's Report-Recommendation and Order, see 
Dkt. No. 17, is ADOPTED AND ACCEPTED in its entirety; and the Court further 
 ORDERS that Plaintiff's motion for judgment on the pleadings, see Dkt. No. 9, is 
DENIED; and the Court further 
 ORDERS that Defendant's motion for judgment on the pleadings, see Dkt. No. 15, is 
GRANTED; and the Court further 
 ORDERS that the Clerk of the Court shall enter judgment in favor of Defendant and 
close this case. 
 
IT IS SO ORDERED. 
 
Dated: March 6, 2026 
 Syracuse, New York 
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