IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK

JENNIFER L. L,

Plaintiff, v. Civil Action No. 5:18-CV-1341 (DEP) COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DOLSON LAW OFFICE STEVEN R. DOLSON, ESQ. 126 North Salina Street Suite 3B Syracuse, NY 13202

FOR DEFENDANT

HON. GRANT C. JAQUITH PRASHANT TAMASKAR, ESQ. United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. ' 405(g) are

cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on January 9, 2020, during a telephone conference conducted on the record. At the close of argument, I issued a

bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner=s determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing

the specific issues raised by the plaintiff in this appeal. After due deliberation, and based upon the court=s oral bench decision, which has been transcribed, is attached to this order, and is

incorporated herein by reference, it is hereby ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is GRANTED.

2) The Commissioner=s determination that the plaintiff was not

1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

David E. Peebles U.S. Magistrate Judge

Dated: January 10, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x JENNIFER L., Plaintiff, -v- 5:18-CV-1341 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES January 9, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LAW OFFICES OF STEVEN R. DOLSON 126 North Salina Street Suite 3B Syracuse, New York 13202 BY: STEVEN R. DOLSON, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION 26 Federal Plaza Room 3904 New York, New York 10278 BY: PRASHANT TAMASKAR, ESQ. Hannah F. Cavanaugh, RPR, CSR, NYACR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (In chambers. Counsel present by telephone. Time 2 noted: 11:26 a.m.) 3 THE COURT: I have before me a request for judicial 4 review of an adverse determination by the Commissioner of Social 5 Security pursuant to

(g). 6 The background is as follows and is fairly

7 straightforward: Plaintiff was born in May of 1979 and is 8 currently 40 years old. She was 36 years of age at the time of 9 the onset of her alleged disability on October 9, 2015. She 10 stands 5'7" in height and weighs 205 pounds. Plaintiff is 11 right-handed. She graduated from high school and attended 12 college for one-and-one-half years. Plaintiff lives in a house 13 in Cortland with her husband and two children. They were, in 14 2017, 8 and 11 years old. She also has one dog and two cats. 15 Plaintiff's past work really consisted only of one 16 position, which she held from November 1997 to October 2015 17 working in a Tops Supermarket as the floral department manager. 18 She stopped working on October 9, 2015, when she experienced leg 19 and feet problems and found difficulty in walking and standing 20 on the concrete floor of the facility. She returned briefly to 21 work in April of 2016 for three days in the same job after being

22 cleared for work by her physician, Dr. Janet Johnson. 23 In terms of her physical condition, her primary 24 physician was Dr. Janet Johnson. She was also seen by Dr. Jody 25 Stackman. She was diagnosed with multiple sclerosis, or MS, and 1 was referred also to Dr. Megan Hyland at the University of 2 Rochester. She was initially prescribed Copaxone, but was 3 switched with good results to Gilenya on May 24, 2016. Her 4 condition, according to her medical records, has been referred 5 to as stable. She has undergone magnetic resonance imaging 6 testing in September of 2015, July of 2017, with little or no

7 change from September 2015, also, March of 2016. She had a CT 8 scan on October 3, 2017, modest results. 9 In terms of daily activities, plaintiff cares for her 10 children and pets, cooks daily, although her husband helps her 11 on occasion. She does laundry, cleans, drives, shops, knits, 12 makes candles, can take care of her personal hygiene, attends 13 church, attends her children's sporting events and dance 14 classes. 15 Procedurally, plaintiff applied for Title II benefits 16 under the Social Security Act on December 6, 2015, alleging an 17 onset date of October 9, 2015. A hearing was conducted to 18 address plaintiff's application for benefits on November 13, 19 2017, by Administrative Law Judge Michael J. Kopicki. Judge 20 Kopicki issued a decision on December 28, 2017, which was 21 unfavorable to the plaintiff. That became a final determination

22 of the agency on October 12, 2018, when the Social Security 23 Administration denied plaintiff's application for review. 24 In his decision, ALJ Kopicki applied the familiar 25 five-step test for determining disability. He initially noted 1 that plaintiff is insured through March 30, 2021. He found at 2 step one that plaintiff had not engaged in substantial gainful 3 activity since her alleged onset date, characterizing the 4 April 2016 attempt as an unsuccessful work attempt. 5 At step two, the Administrative Law Judge concluded 6 that plaintiff suffers from MS, a severe impairment.

7 At step three, he found that plaintiff's condition 8 did not meet or medically equal any of the listed presumptively 9 disabling conditions set forth in the Commissioner's 10 regulations. Specifically considering listing 11.09, he found 11 that the requirements of that listing were not met. After 12 surveying the record and available evidence, the Administrative 13 Law Judge concluded that plaintiff retains the residual 14 functional capacity to perform sedentary work, except that she 15 can occasionally lift and carry only ten pounds, frequently lift 16 and carry less than ten pounds, stand and/or walk with normal 17 breaks for two hours of an eight-hour workday, and sit with 18 typical breaks for six hours of an eight-hour workday. He 19 further limited the plaintiff in that she should never climb 20 ladders, ropes, scaffolds, and no more than occasionally climb 21 ramps, stairs, stoop, crouch, crawl, kneel, and balance. The

22 claimant further should avoid concentrated exposure to 23 unprotected heights and dangerous machinery. 24 At step four, ALJ Kopicki concluded that given this 25 RFC, plaintiff cannot perform her past relevant work as a floral 1 department manager. 2 At step five, with the benefit of testimony from a 3 vocational expert, the Administrative Law Judge concluded that 4 plaintiff is capable of performing work available in the 5 national economy, including as an election clerk, a call out 6 operator, and a surveillance system monitor, and therefore found

7 that she was not disabled at the relevant times. 8 As you know, my task is limited and the standard of 9 review that I apply is extremely deferential. I must determine 10 whether the determination of the Commissioner is supported by 11 substantial evidence, defined as such evidence as a reasonable 12 mind would find adequate to support a finding of fact. I note 13 that under Brault v. Social Security Administration 14 Commissioner,

, a decision from the Second Circuit 15 in 2012, it was noted that the standard means once an ALJ finds 16 facts, they can be rejected only if a reasonable factfinder 17 would have to conclude otherwise. 18 In this case, the issue really is one that typically 19 arises, the substitution of lay opinions for uncontradicted 20 medical opinions. It is clear, and the Commissioner concedes, 21 that if the off task and absenteeism opinions of Dr. Johnson

22 from August 30, 2017, and the University of Rochester from 23 September 5, 2017, are accepted, plaintiff would be 24 unemployable. Dr. Johnson concluded that plaintiff would be off 25 task 21 to 30 percent of the time, that's at page 341, and would 1 be absent about two times per month, that's at 343 of the 2 Administrative Transcript. In the University of Rochester 3 opinion, although we don't know who authored that opinion 4 because the signature is illegible -- I think that's because 5 doctors are taught to have poor handwriting when they go to 6 medical school -- the opinion is that the plaintiff would be off

7 task more than 30 percent of the time, that's at page 344, and 8 absent more than four times per month, at 346. The vocational 9 expert, of course, concluded at page 69 and 70 that if the 10 plaintiff was off task 20 percent of the time, the jobs 11 specified would be eliminated and the employer absence 12 tolerance, according to the vocational expert, would be 13 two-thirds of a day per month. 14 There's no question that at least Dr. Johnson's 15 opinions are those of a treating physician, which are entitled 16 to some deference, and if not deemed controlling, then there are 17 a series of factors called the Burgess factors that the 18 Administrative Law Judge must consider. That's also set forth 19 in the regulations of the Commissioner, including at 20 C.F.R. 20 Section 404.1527. 21 The Administrative Law Judge's opinion is somewhat

22 scant when it comes to analyzing the Burgess factors. When it 23 comes to Dr. Johnson's opinions, it was noted, however, that 24 almost all of Dr. Johnson's opinions were adopted. The off task 25 and absenteeism were not, although the residual functional 1 capacity did account in some small way for fatigue, limiting the 2 plaintiff to avoiding concentrated exposure to unprotected 3 heights and dangerous machinery. But I think, as the Second 4 Circuit has said, although Burgess factors may not be 5 specifically and rotely discussed, I think that you can glean 6 from the Administrative Law Judge's decision the basis for his

7 rejection of those two opinions. It's an area that has caused 8 some controversy and, quite honestly, some inconsistent results 9 from the courts. 10 There is a decision from one of my colleague judges, 11 Judge Daniel J. Stewart, that would suggest that the rejection 12 of the opinions concerning absenteeism and off task should not 13 be upheld if there is no contrary medical opinions. That's from 14 Sheri S. v. Berryhill,

. It is from March 29, 15 2019, the Northern District of New York. There are some 16 contrary cases, however, that have dealt with this particular 17 issue, including Kenneth S. v. Commissioner of Social Security, 18

. It is from the Northern District of New York, 19 March 25, 2019, from another one of my colleagues, Judge Dancks. 20 And there's a line of cases that cites the Second Circuit's 21 decision in Smith v. Berryhill,

from June 29,

22 2018. 23 The Administrative Law Judge rejected those opinions 24 as speculative. They're check-the-box opinions, which 25 historically have carried less weight than opinions that are 1 fortified by explanations. In this case, there is no 2 explanation given other than easy fatigability. There's no 3 explanation given by Dr. Johnson, for example, as to why 4 specifically plaintiff would be absent two times per month. All 5 indications from the records are that the Gilenya has helped 6 control the symptoms. I acknowledge that there is some

7 indication of fatigue, which, again, was factored into the 8 residual functional capacity finding. 9 The activities of daily living of the plaintiff are 10 very robust and plaintiff's, quite frankly, testimony herself 11 suggests that she can do sedentary work. I know that she 12 expressed some reservation about whether she would be fatigued, 13 but she didn't say she couldn't do it. And Dr. Johnson cleared 14 her for employment in April of 2016 even before she transitioned 15 to the Gilenya, which seems to have been effective in 16 controlling her symptoms. 17 So I don't find any error. I think that the 18 Administrative Law Judge can make a common sense judgment in a 19 case of this nature where the impairment and its limitations are 20 relatively simple and mild, under Smith v. Berryhill, also Veino 21 v. Barnhart,

from the Second Circuit, 2002, and

22 Snell v. Apfel,

from the Second Circuit, 1999. So 23 I find that the Administrative Law Judge's RFC finding was 24 supported by substantial evidence, including the plaintiff's 25 testimony. The residual functional capacity resulted in a 1 hypothetical that paralleled the RFC finding given to the 2 vocational expert and the vocational expert's testimony 3 satisfied the Commissioner's burden at step five, and the 4 determination that plaintiff is able to work is supported by 5 substantial evidence. I note that -- I'm trying to read my 6 notes, I'm sorry -- in April of 2016, I specifically noted at

7 page 322 that Dr. Johnson indicated that plaintiff could return 8 to work if she could sit every seven minutes. And, obviously, 9 sedentary work, plaintiff can do that. 10 So in any event, I'm going to grant judgment on the 11 pleadings to the defendant, affirm the Commissioner's 12 determination, and dismiss plaintiff's complaint. I'll issue a 13 short form order attaching a transcript of this argument. 14 I want to thank you both for excellent presentations. 15 I enjoyed working with you and I hope you have a good day. 16 MR. TAMASKAR: Thank you, Judge. 17 MR. DOLSON: Thank you, your Honor. 18 (Time noted: 11:42 a.m.) 19 20 21 22

23 24 25 2 CERTIFICATE OF OFFICIAL REPORTER 5 I, HANNAH F. CAVANAUGH, RPR, CSR, NYACR, Official 6 U.S. Court Reporter, in and for the United States District Cour 7 for the Northern District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States Code, that the 9 foregoing is a true and correct transcript of the 10 stenographically reported proceedings held in the above-entitle 11 | matter and that the transcript page format is in conformance 12 | with the regulations of the Judicial Conference of the United 13 States. 14 15 Dated this 9th day of January, 2020. 16 17 X Nannat F_( avaniagh 18 HANNAH F. CAVANAUGH, RPR, CSR, NYACR 19 Official U.S. Court Reporter 20 21 22 23 24 25