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

RACHAEL F.,

Plaintiff, v. Civil Action No. 6:19-CV-0076 (DEP) ANDREW M. SAUL, Commissioner of Social Security,1

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 Endicott, NY 13760

FOR DEFENDANT

HON. GRANT C. JAQUITH LUCY WEILBRENNER, ESQ. United States Attorney KRISTINA D. COHN, ESQ. P.O. Box 7198 Special Assistant U.S. Attorneys 100 S. Clinton Street Syracuse, NY 13261-7198

1 Plaintiff=s complaint named Nancy A. Berryhill, in her official capacity as the Commissioner of Social Security, as the defendant. On June 4, 2019, Andrew Saul took office as Social Security Commissioner. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. ' 405(g). 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

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on January 15, 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

2 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. 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 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.

U.S. Magistrate Judge Dated: January 23, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x RACHEL F.,

Plaintiff,

vs. 16:19-CV-76

ANDREW M. SAUL, Commissioner of Social Security, Defendant. ------------------------------------------------------x DECISION - January 15, 2020 James Hanley Federal Building, Syracuse, New York HONORABLE DAVID E. PEEBLES United States Magistrate-Judge, Presiding

A P P E A R A N C E S (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, New York 13761 BY: PETER GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 26 Federal Plaza New York, New York 10278 BY: LUCY WEILBRENNER, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: I have before me an application 2 pursuant to

(g) and 3 1383(c)(3) for an order vacating a determination by the 4 Commissioner of Social Security that was adverse to the 5 plaintiff. The background is as follows. 6 Plaintiff was born in February 1984. She is 7 currently 35 years of age. She was 31 years at the time of 8 the amended onset date of October 28, 2015. She lives in 9 Westford, New York, with her husband and two children, 10 including one who was 15 years old at the time of the hearing 11 and disabled with PTSD and traumatic neuro deficiencies. He 12 was previously a resident at Elmcrest, but I believe at the 13 time of the hearing was residing with the plaintiff and her 14 husband. The other child was ten years old at the time of 15 the hearing. 16 Plaintiff is 5-foot, 1-inch in height and weighs 17 approximately 150 pounds. That's at 238 and 444 of the 18 Administrative Transcript. The plaintiff cares for her 19 children, including her disabled son. 20 Plaintiff achieved a GED in 2011. The record is 21 somewhat unclear as to how much schooling she had before 22 achieving the GED. At 424 she stated she finished 23 ninth grade but failed tenth grade. At page 30 she indicated 24 she dropped out of ninth grade. And at 239 she indicated she 25 finished eleventh grade. She acknowledged that she is able 1 to read and write. 2 Plaintiff drives. She has worked in the past as a 3 hotel housekeeper at a Best Western Hotel, a grocery store 4 cashier, a drive-thru cashier, and a Dunkin' Donuts cashier. 5 She indicated at page 424 that she was fired from all of the 6 previous jobs that she held. 7 Physically plaintiff suffers from headaches that 8 she's described as migraines, as well as occasional back 9 pain. Her primary care provider is Dr. Tabasum Nazir with 10 Bassett Medical Center. Although she does complain of 11 headaches, she had a normal neurological exam and CT of her 12 head, at 484. She's been prescribed Imitrex and Motrin. 13 That's at 43 and 484. She tried Topamax in March of 2017 but 14 was unable to tolerate that medication. That's at 518. 15 Mentally plaintiff has suffered in the past from 16 considerable issues resulting in a one-month hospitalization 17 in 2006, a two-week hospitalization in 2010 and a three-day 18 hospitalization in 2014. She has had prior suicide attempts 19 and has been variously diagnosed, including with depressive 20 disorder, bipolar disorder, anxiety disorder, post-traumatic 21 stress disorder and panic disorder. That's at 38 and 442. 22 Plaintiff is not currently taking any psychiatric 23 medications, instead choosing to use what she describes as 24 alternate strategies. She counsels with LCSW Liza Butts 25 between every two and three weeks, at 48, and monthly, at 1 439. Much of her counseling centers around marital problems 2 with her husband. 3 Plaintiff smokes up to two to three packs of 4 cigarettes per day. That's at 50, 444, 481, 489 and 503 of 5 the Administrative Transcript. 6 In terms of activities of daily living, plaintiff 7 cooks daily, and as I indicated previously, takes care of her 8 children, including a disabled son, cleans, does laundry and 9 is able to mop, she drives, shops, does puzzles, watches 10 television, plays computer games, and is able to care for her 11 hygiene needs. 12 Procedurally plaintiff had a prior unfavorable 13 decision in connection with earlier applications for Social 14 Security benefits on October 27, 2015 from Administrative Law 15 Judge Robert Wright. The plaintiff applied anew for Title II 16 and Title XVI benefits on November 16, 2015, originally 17 asserting an onset date of July 17, 2012. That was amended 18 at the time of the hearing at page 29 of the Administrative 19 Transcript to October 28, 2015, the day after the earlier 20 unfavorable decision. 21 The hearing was conducted by Administrative Law 22 Judge Brian LeCours on November 8, 2017 to address 23 plaintiff's applications. ALJ LeCours issued a decision on 24 January 24, 2018 finding that plaintiff was not disabled at 25 the relevant times, and therefore ineligible for the benefits 1 sought. That became a final determination of the Agency on 2 November 19, 2018 when the Social Security Administration 3 Appeals Council denied plaintiff's application for review of 4 that determination. This action followed on January 22, 5 2019. 6 In his decision the Administrative Law Judge 7 applied the familiar five-step test for determining 8 disability. After concluding that plaintiff was last insured 9 on June 30, 2017, he found that she had not engaged in 10 substantial gainful activity during the relevant period at 11 step one. 12 At step two the ALJ concluded that plaintiff 13 suffers from severe impairments that provide more than 14 minimal limitations on her ability to perform basic work 15 functions, including migraines, depressive disorder, bipolar 16 disorder, anxiety disorder, and PTSD. 17 At step three the Administrative Law Judge 18 concluded that plaintiff's conditions do not meet or 19 medically equal any of the listed presumptively disabling 20 conditions, specifically considering listings 12.04, 12.06 21 and 12.15. 22 After surveying the medical evidence, the 23 Administrative Law Judge concluded that plaintiff has the 24 residual functional capacity, or RFC, to perform a full range 25 of work at all exertional levels, but made additional 1 limitations in the RFC of a non-exertional level to address 2 her physical and psychological issues. 3 Applying that RFC the Administrative Law Judge 4 concluded at step four that plaintiff is capable of 5 performing her past relevant work as a housekeeper, both as 6 generally performed and as she actually performed it based 7 upon her testimony. Alternatively, based on the testimony of 8 a vocational expert, the Administrative Law Judge concluded 9 that plaintiff is capable of performing work available in the 10 national economy, including as a lab sample carrier, a 11 routing clerk, and a label marker, and found that she was 12 therefore not disabled. In support of his RFC, helpfully the 13 Administrative Law Judge summarized at page 17 of the 14 Administrative Transcript the basis for his findings. 15 As you know, the task that I face is extremely 16 limited, and the test that I must apply is very deferential. 17 I must determine whether substantial evidence supports the 18 determination, substantial evidence being defined as such 19 evidence as a reasonable mind would find adequate to support 20 the conclusion. 21 The Second Circuit has noted on several occasions, 22 including in Brault versus Social Security Administration 23 Commissioner, at

, from the Second Circuit in 24 2012, that this is a strict standard, even more strict than 25 clearly erroneous. The Second Circuit went on in that case 1 to indicate that under the substantial evidence test, facts 2 determined by the Administrative Law Judge can be overturned 3 and rejected only if a reasonable fact finder would have to 4 conclude otherwise. 5 In this case plaintiff has several contentions, one 6 of which has been somewhat abandoned. First, whether there 7 should be some sort of closed period prior to 2016 when the 8 Administrative Law Judge, plaintiff claims, found improvement 9 in plaintiff's condition. I guess the centerpiece of 10 plaintiff's argument is the error in rejecting unanimous 11 opinions concerning plaintiff's ability to maintain a 12 schedule and work on task. There are factual issues cited in 13 plaintiff's brief, and, generally speaking, plaintiff claims 14 that the Administrative Law Judge failed to properly weigh 15 the available medical evidence. 16 The contention is that the combination of 17 plaintiff's migraines and emotional issues preclude her 18 ability to work. In terms of the closed period, as plaintiff 19 has candidly acknowledged, since the prior decision of 20 October 27, 2015 was not appealed, it is res judicata up 21 until that point in time, and so the modified onset date is 22 appropriately October 28, 2015. 23 The ALJ seems to have reviewed the entire record 24 and issued a decision that included pre-October 28, 2015 25 records. A review of the decision and plaintiff's treatment 1 records, as the Commissioner has argued, show remarkable 2 remission of plaintiff's symptoms which were repeatedly 3 described as under control, especially after October of 2015. 4 The Administrative Law Judge did make note of a November 15 5 treatment note at page 15, which is a mere two weeks after 6 the amended onset date, as supportive of his conclusion that 7 plaintiff's symptoms had been in remission. 8 I find no error and I agree with the Commissioner's 9 citation of Roehm versus Commissioner, at

, 10 adopting a magistrate judge's decision reported at

6318364. It's a Northern District of New York case from 12 2011. 13 In terms of the on task and the effect of 14 plaintiff's psychological and headache issues, it's clear 15 from the records that plaintiff's psychological condition was 16 described as in remission and under control. She underwent 17 conservative treatment, no psychiatric or psychological 18 medications. It is true that she does attend regular 19 counseling with LCSW Butts, but virtually all of the notes of 20 Ms. Butts reflect, quote, "a lot of progress," that the 21 plaintiff presents with euthymic mood and congruent affect. 22 The only exception that I found during the relevant 23 period was March 3, 2016, and that was at a time when 24 plaintiff was suffering from some sort of pain in her mouth. 25 That's at 452. 1 In terms of the headaches, she underwent a normal 2 neurological exam and CT scan, at 454. She testified that 3 she gets two to three headaches per month but they usually go 4 away within thirty minutes with medications. That's at 495. 5 She described them as not intractable in March of 2017. 6 That's at page 500. And, significantly, when asked to 7 describe her medical condition by the Consultative Examiner, 8 Dr. Puri, she denied any medical complaints except with 9 regard to her low back. That's at 444. She also did not 10 mention, when she was asked about her medical history, her 11 headaches, to Dr. Mahler, at page 439. The ALJ did address 12 headaches and the fact that noise appears to trigger her 13 headaches by including a limitation in that regard in the 14 RFC. 15 In terms of the medical opinions, it is up to the 16 discretion of the Administrative Law Judge to weigh medical 17 opinions and to accept or reject all or some portions. I 18 recognize that, as I indicated, there are opinions from 19 Dr. Mahler, LCSW Butts, and Dr. Nazir, and even to some 20 degree Dr. Bowman, concerning plaintiff's limitations in her 21 ability to perform pursuant to a regular schedule. 22 Dr. Mahler's opinion was properly rejected based on 23 the indication in plaintiff's progress notes from LCSW Butts, 24 the fact of a normal psychiatric exam and the fact that 25 plaintiff takes no medications, and I believe the explanation 1 was appropriate and sufficient to permit meaningful judicial 2 review. 3 LCSW Butts is not an acceptable medical source. It 4 is true that she has probably the most contact with the 5 plaintiff. Dr. Bowman's opinions were entitled to 6 consideration and it is true at page 70 he finds a moderate 7 limitation in the ability to maintain a regular schedule, but 8 provides narrative explanation at 71 to 72 that suggests that 9 the plaintiff is able to work. And, of course, the Second 10 Circuit when it comes to consultative examiners has cautioned 11 against placing too much reliance. 12 I did read and reread and re-reread the decision in 13 Stacy. That, however, was a case of a treating source's 14 opinion that was rejected. It's not binding in precedent. I 15 think this case is more akin to Smith versus Berryhill, which 16 is at 2018 Westlaw 3202766, Second Circuit case from June of 17 2018, also a summary order. 18 I struggle with this case. I struggle with all of 19 these cases that contain opinions about absenteeism and off 20 task, but in this case I believe the Administrative Law Judge 21 had before him enough indication in the counseling and 22 treatment records to properly reject the opinions that 23 indicated plaintiff did not have that ability. 24 The finding at step four where plaintiff bears the 25 burden was appropriate based on the RFC, and the testimony of 1 the vocational expert, and certainly at step five where the 2 Commissioner has the burden, in any event, the vocational 3 expert testified based on a hypothetical that approximated 4 the RFC finding that plaintiff was able to perform work in 5 the national economy, and therefore the Commissioner's burden 6 at step five was met. 7 So I will, in summary, grant judgment on the 8 pleadings to the defendant. I found this to be a close case 9 and I thought both presentations were excellent and I enjoyed 10 working with you. Hope you have a good afternoon. 11 * * * 12 13 14 15 16 17 18 19 20 21 22 23 24 25 CERTIFICATION

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

Reon Deneragh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter