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

JANET V.,

Plaintiff, Civil Action No. 1:19-CV-0466 (DEP) v.

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DENNIS KENNY LAW FIRM JOSEPHINE GOTTESMAN, ESQ. 288 North Plank Rd. Newburgh, NY 12550

FOR DEFENDANT

HON. GRANT C. JAQUITH KEVIN PARRINGTON, 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

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral

argument was heard in connection with those motions on May 6, 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

disabled at the relevant times, and thus is not entitled to benefits under the

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. 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. Lid David E. Peebles U.S. Magistrate Judge Dated: May 7, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x JANET V.,

Plaintiff,

vs. 1:19-CV-466

ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on May 6, 2020, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: DENNIS KENNY LAW FIRM Attorneys at Law 288 North Plank Road Newburgh, New York 12550 BY: JOSEPHINE GOTTESMAN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel JFK Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: KEVIN PARRINGTON, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and Counsel present by telephone.) 2 THE COURT: Thank you. Let me begin by commending 3 counsel for excellent written and oral presentations, I 4 enjoyed working with you on this case. 5 Plaintiff has commenced this proceeding pursuant to 6

(g) and 1383(c)(3) to 7 challenge a determination by the Commissioner of Social 8 Security the plaintiff was not disabled at the relevant times 9 and therefore ineligible for the benefits for which she 10 applied. 11 The background concerning this case is as follows: 12 Plaintiff was born in June of 1961. She is currently almost 13 59 years of age. She was 52 years old at the time of the 14 alleged onset of her disability in December 2013. Plaintiff 15 resides in Marlboro, New York in a two-family house with 16 children who at the time of the hearing of this matter were 17 19 and 21 years of age and were full-time college students. 18 She also has a rent-paying roommate in the home. She stands 19 5 foot 2 inches in height. Plaintiff has weighed at various 20 times anywhere between 198 pounds, at the time of the hearing 21 in August of 2017, to 243 pounds in April of 2015. Plaintiff 22 has a high school diploma and one year of college experience. 23 Plaintiff has a driver's license but testified that she does 24 not drive. 25 In terms of work, plaintiff stopped working in 1 December of 2013 due to anxiety. Prior to that time, she was 2 employed as a production manager between July 1995 and 3 January 2010. She left that position when she was laid off. 4 She was an administrative assistant in a pool and patio store 5 from May of 2012 to August of 2012, and a director of 6 production in a manufacturing setting from August 2013 to 7 December 2013. 8 At page 49, plaintiff testified that she is unable 9 to work because she cannot concentrate, she cannot remember 10 things, she cannot finish tasks. She suffers from dizziness 11 and panic attacks. She cannot walk, cannot stand for long, 12 cannot climb stairs, cannot lift. 13 Physically, plaintiff suffers from coronary artery 14 disease, specifically coronary atherosclerosis of the native 15 coronary artery, as well as GERD, chronic anemia, and type 2 16 diabetes. The record is somewhat vague as to when it 17 occurred, but plaintiff suffered from a myocardial infarction 18 sometime between 2010 and 2012. On April 30, 2015, plaintiff 19 was hospitalized and had a stent placed. It was referred to 20 as a double vessel coronary artery disease that she was 21 suffering from. She complained of chest pains the day before 22 on April 29, which, interestingly, is the day she underwent 23 the physical and psychiatric consultative examinations. 24 Mentally, plaintiff suffers from bipolar disorder, 25 a generalized anxiety disorder, social anxiety, and rule out 1 panic disorder. 2 In terms of her treatment providers, she treated as 3 a -- with a general practitioner Dr. Anthony Basciano, a 4 general practitioner, beginning in or about October 2016. 5 Her cardiology needs have been attended to by Dr. Glenn 6 Boyar. She also treats with Dr. Margaret Apedo, an 7 endocrinologist. 8 In terms of her mental health, plaintiff treated 9 with Dr. Richard Altesman from 2014 to 2016, and beginning in 10 2017 with Dr. Sukhiminder Singh. She was also consultatively 11 examined physically by Dr. Carol McLean Long, and for 12 psychiatric evaluation by Dr. Melissa Antiaris. Both of 13 those occurred, as I indicated, on April 29, 2015. 14 Plaintiff has been prescribed several medications 15 over time including atorvastatin, Brintellix, gabapentin, 16 losartan, metoprolol, omeprazole, Metformin, Zoloft, a trial 17 of Latuda, and at one point, Duloxetine which apparently 18 plaintiff could not tolerate. 19 Plaintiff has a fairly wide range of activities of 20 daily living. She watches television, reads, she can dress, 21 bathe, groom herself, she listens to music. The record is 22 equivocal on cooking. She stated that she is unable to cook, 23 do laundry, shop, or take any trips at the hearing; however, 24 at pages 264 and 269 plaintiff stated that she can cook, 25 clean, do laundry, and can shop. Plaintiff smokes and it 1 appears that she smoked up to one pack of cigarettes per day 2 for 30 years, that appears at 281, 256, and 258 of the 3 administrative transcript. She apparently cut down at one 4 point to one half-pack per day, in 2016, that's at 312, and 5 three-quarters of a pack per day at 355. She has also smoked 6 marijuana most of her life, according to 355 and 423 of the 7 administrative transcript. 8 Procedurally, plaintiff applied for Title II Social 9 Security Disability benefits on April 2, 2015. She 10 subsequently applied for Supplemental Security Income 11 payments on October 25, 2016 pursuant to Title XVI of the 12 Social Security Act. In both of those applications, she 13 alleged an onset date of December 1, 2013. At page 188, she 14 claimed disability based on anxiety/depression, bipolar 15 disorder, high blood pressure, and heart attack. 16 A hearing was conducted on August 23, 2017 by 17 Administrative Law Judge Sharda Singh. ALJ Singh issued a 18 decision on April 20, 2018 finding that plaintiff was not 19 disabled at the relevant times and therefore ineligible for 20 the benefits sought. That became a final determination of 21 the agency on February 20, 2019, when the Social Security 22 Administration Appeals Council denied plaintiff's application 23 for review. This action was commenced on April 20, 2019, and 24 is therefore timely. 25 In the decision, Administrative Law Judge Singh 1 applied the familiar five-step test for determining 2 disability. The ALJ first noted that plaintiff's insured 3 status ended on September 30, 2017. The ALJ then at step one 4 concluded that plaintiff had not engaged in substantial 5 gainful activity since December 1, 2013. 6 Proceeding to step two, the administrative law 7 judge concluded that plaintiff does suffer from severe 8 impairments that impose more than minimal limitations on 9 ability to perform work functions, including coronary artery 10 disease, hypertension, diabetes mellitus, obesity, 11 generalized anxiety disorder, panic disorder, and bipolar 12 disorder. In doing that, the administrative law judge 13 rejected cannabis use disorder and dyslipidemia as not 14 severe. 15 At step three the administrative law judge 16 concluded that plaintiff's conditions do not meet or 17 medically equal any of the listed presumptively disabling 18 conditions set forth in the Commissioner's regulations, 19 specifically considering Listings 4.00, 4.04, and 20 12.04/12.06. The administrative law judge also considered 21 plaintiff's diabetes in accordance with Social Security 22 Ruling 14-2p, and obesity pursuant to SSR 02-1p. 23 The administrative law judge next concluded that 24 plaintiff retains the residual functional capacity, or RFC, 25 to perform medium work except limited to understanding, 1 remembering, and carrying out simple, repetitive, noncomplex 2 tasks with occasional contact with supervisors, coworkers, 3 and the general public. 4 At step four, applying that RFC, the administrative 5 law judge concluded that plaintiff is incapable of performing 6 her past relevant work in light of its demands and 7 specifically it is characterized as SVP 8. 8 At step five, the administrative law judge noted 9 first that if the Medical-Vocational Guidelines, or the 10 so-called Grids, were applied and plaintiff were capable of 11 performing a full range of medium work, she'd be deemed not 12 disabled under Rules, Grid Rules 203.22 and 203.15. 13 Relying upon the testimony of the vocational expert 14 in light of the additional nonexertional limitations set 15 forth in the RFC, the administrative law judge concluded that 16 plaintiff is capable of performing work in the national 17 economy that is available, including as a hand packer, a 18 hospital cleaner, and a sandwich maker. 19 As you know, the court's task is limited and the 20 standard that must be applied is extremely deferential. The 21 court must determine whether correct legal principles were 22 applied, and whether the resulting determination and the 23 findings of fact are supported by substantial evidence, which 24 is defined as such relevant evidence as a reasonable mind 25 might accept as adequate to support a conclusion. The Second 1 Circuit Court of Appeals noted in Brault v. Social Security 2 Administration,

, from 2012, that the standard to 3 be applied is extremely deferential. It is even more 4 stringent than the clearly erroneous standard. In Brault, 5 the Second Circuit went on to note that under that standard, 6 the court may reject facts found by an administrative law 7 judge only if a reasonable fact finder would have to conclude 8 otherwise. 9 In this case, plaintiff has raised three main 10 contentions. First, she challenges the administrative law 11 judge's weighing of the medical opinions and specifically 12 those of Dr. Singh, Dr. McLean Long, and Dr. Antiaris. The 13 administrative law judge RFC finding is also challenged as 14 not supported by substantial evidence, and the issue is 15 raised that there is a gap in the record presented by 16 rejection of Dr. Singh's opinion, and also, part and parcel 17 of that is the alleged inconsistency with Dr. McLean Long's 18 opinion. 19 Turning first to the weight of medical evidence, 20 generally speaking, under Veino, it is the prerogative of the 21 administrative law judge to weigh medical opinions and 22 evidence in the record. 23 Turning first to Dr. Antiaris, Dr. Antiaris 24 examined the plaintiff and issued the following medical 25 source statement at page 265 of the administrative 1 transcript. The -- Dr. Antiaris found no limitations in the 2 claimant's ability to follow and understand simple directions 3 and instructions or perform simple tasks independently. She 4 is mildly limited in her ability to maintain attention and 5 concentration, there are no limitations in the claimant's 6 ability to maintain a regular schedule, learn new tasks, 7 perform complex tasks independently, make appropriate 8 decisions, or relate adequately to others. She is moderately 9 limited in her ability to appropriately deal with stress, 10 difficulties are caused by lack of motivation. On page 264, 11 Dr. Antiaris found that plaintiff's thought processes were 12 coherent and goal directed with no evidence of 13 hallucinations, delusions of paranoia. She went on to find 14 that in the area of attention and concentration, plaintiff 15 was mildly impaired due to concentration difficulties. 16 Recent and remote memory skills were found to be intact, 17 cognitive functioning was judged to be in the average range, 18 insight fair and judgment fair. 19 The administrative law judge carefully, at pages 21 20 and 22, examined the opinion of Dr. Antiaris. The 21 administrative law judge did acknowledge the moderate 22 limitation on stress, and I find that residual functional 23 capacity in that arena is well supported and accounted for in 24 the residual functional capacity. The Commissioner has cited 25 Jackson v. Commissioner of Social Security at

4926434, it's a decision from the Western District of 2 New York. In that case Magistrate Judge Michael J. Roemer 3 noted that where an ALJ concluded that plaintiff was limited 4 to simple routine repetitive tasks and that she was capable 5 of performing unskilled work, that is sufficient to account 6 for a moderate limitation in dealing with stress. 7 Turning to Dr. Ferrin, Dr. Ferrin, a nonexamining 8 consultant, on June 30, 2015 issued the following MRFC, 9 mental residential functional capacity, opinion. Claimant 10 has severe impairment and despite some limitations is able to 11 follow ordinary routine, socialize with others, and adapt to 12 changes in workplace. The administrative law judge discussed 13 Dr. Ferrin's opinion at page 22. It was accepted, although 14 with additional limitations, and those are supported by 15 substantial evidence. I note that Dr. Ferrin's opinions are 16 supported by the treatment notes of Dr. Singh as well as 17 Licensed Clinical Social Worker Greddy Abraham and 18 Dr. Richard Altesman. As I indicated previously, it is for 19 the administrative law judge to weigh medical opinions. I 20 think it was properly weighed in this case. 21 The argument with regard to passage of time I 22 understand, and for practical reasons in many of these cases 23 there is a fairly substantial period of time that passes 24 between a consultative exam and the time of an administrative 25 law judge's decision. That alone, however, does not 1 undermine the usefulness and the reliance upon such a 2 consultative examination, particularly as in this case where 3 notes do not reflect any significant deterioration in 4 condition. 5 In terms of Dr. Singh, Dr. Singh is of course in a 6 different category. He was treated by the administrative law 7 judge as a treating source. His opinions were discussed in 8 detail at pages 21 through 23 of the administrative 9 transcript. As a treating source under the regulations that 10 were in effect at the time, he is -- his opinions were 11 entitled to considerable deference unless not consistent with 12 other substantial evidence. And specifically, such opinions 13 are not controlling if they are contrary to other substantial 14 evidence in the record, including opinions of other medical 15 experts. Halloran v. Barnhart,

, pin cite 32 from 16 the Second Circuit 2004. If there is contradictory medical 17 evidence in the record, the resolution of such a conflict is 18 entrusted to the Commissioner. Burgess v. Astrue,

117 at 128 from Second Circuit 2018 -- I'm sorry, 2008. 20 Obviously, if a treating source's opinions are rejected, 21 explanation must be made and it must be supported by 22 substantial evidence. 23 In this case, Dr. Singh's medical capacity 24 assessment rendered on July 24, 2017 at pages 407 through 412 25 of the administrative transcript, one would have to 1 acknowledge is extremely limited -- limiting. He notes an 2 extreme limitation of virtually all of the areas addressed in 3 that, in that questionnaire. As the administrative law judge 4 noted, the opinions and the serious limitations reflected are 5 at odds with Dr. Singh's own treatment notes. At page 424, 6 Dr. Singh notes that plaintiff's memory is intact, attention 7 and concentration are intact, at page 460 -- 425, executive 8 functioning intact, again at page 428, memory intact, 9 judgment intact, insight intact, attention and concentration 10 intact. Again, at page 437, memory intact, reasoning, normal 11 reasoning, attention and concentration intact, executive 12 functioning intact. As the administrative law judge noted, 13 Dr. Singh at one point in July of 2017 at page 431 assigned a 14 Global Assessment of Functioning, or GAF score, of 60. Under 15 the DSM-IV, which of course is no longer in use, GAF of 60 16 signifies moderate symptoms or moderate difficulty in social, 17 occupational, or school functioning. Certainly seems to be 18 inconsistent with Dr. Singh's very limiting report. At 431, 19 it was also noted that, by Dr. Singh that plaintiff was doing 20 well on Zoloft. The administrative law judge considered that 21 plaintiff was only examined twice by Dr. Singh prior to 22 rendering his opinion. The administrative -- the activities 23 of daily living are not as limiting as plaintiff's testimony. 24 The administrative law judge noted that plaintiff was able to 25 drive to Georgia in 2015, that appears at 375 of the 1 administrative transcript, and in May of 2016 was noted to be 2 driving, that's at page 365 of the administrative transcript. 3 The administrative law judge did consider Dr. Singh is a 4 specialist but concluded that his opinions are not supported. 5 I find that the treatment of Dr. Singh's opinions was 6 adequately explained and supported by substantial evidence. 7 Turning to Dr. Long, Dr. Long -- I'll call her 8 Dr. McLean Long, I'm not sure if that's accurate, found based 9 on her examination of the plaintiff at page 271 that there is 10 no limitation in the claimant's ability to sit, stand, climb, 11 push, pull, or carry heavy objects. She did go on to note 12 that there is a mild limitation from activities requiring 13 mild or greater exertion because of her cardiac history. The 14 administrative law judge rejected that second sentence 15 because it was vague, not supported, and it did not provide 16 any functional information. The first sentence clearly 17 supports a medium, medium RFC. The RFC of course being 18 defined as the range of tasks she is capable of performing 19 notwithstanding the impairments at issue, 20 C.F.R. Sections 20 404.1545 and 416.945, Tankisi v. Commissioner of Social 21 Security,

. An RFC has to be informed by 22 consideration of only the medical, relevant medical and other 23 evidence. I note also once again that it is plaintiff's 24 burden to establish her limitations up through step four and 25 that includes at the RFC level. Dr. McLean Long's opinion 1 was discussed at pages 19 and 20 of the administrative law 2 judge's decision, portion of it were rejected. I find that 3 the administrative law judge's treatment of Dr. McLean Long's 4 opinion was supported by substantial evidence. 5 So again, coming back to the residual functional 6 capacity and plaintiff's burden to establish her capacity, 7 the mere fact that she was working in a sedentary position 8 previously does not necessarily mean she is incapable of 9 performing at the medium work exertional level. Medium work 10 of course under SSR 83-10 is defined as lifting no more than 11 50 pounds at a time with frequent lifting or carrying of 12 objects weighing up to 25 pounds. The full range of medium 13 work requires standing or walking off and on for a period of 14 approximately eight -- six hours in an eight-hour workday in 15 order to meet the requirements of frequent lifting or 16 carrying of objects up to 25 pounds, and it goes on to make 17 additional observations regarding medium work. The ability 18 to perform medium work in this case is supported by the 19 consultative examination of Dr. McLean Long. There's no 20 evidence of subsequent deterioration. The administrative law 21 judge did note there was stenting but, as the Commissioner 22 has argued, the evidence concerning plaintiff's heart 23 condition following the stenting does not support a finding 24 of deterioration. Physical exams of the plaintiff, as the 25 administrative law judge notes, were largely unremarkable. 1 The mental portion of the RFC finding is supported as I 2 indicated before by Dr. Antiaris' opinion, and Dr. Singh's 3 medical source statement was properly rejected. 4 The Commissioner -- the plaintiff has argued that 5 the RFC did not account for the moderate limitations found as 6 part of the step three analysis at page 15 of the 7 administrative transcript but the step three and the 8 so-called B criterion drops out and is not relevant to the 9 RFC finding once the step three analysis has been concluded. 10 In terms of the gap, plaintiff alleges that there 11 is a gap in the record once Dr. Singh's opinion was rejected, 12 but there is also the consultative examination of 13 Dr. Antiaris and the nonexamining opinions of Dr. Ferrin 14 which supply the required substantial evidence concerning 15 plaintiff's mental capacity portion of the RFC. 16 So I think I've addressed all of the arguments that 17 were raised by the plaintiff. I conclude that proper legal 18 principles were applied, that the treatment of the various 19 medical opinions was supported by substantial evidence, and 20 that the resulting determination is also supported by 21 substantial evidence, so I will grant judgment on the 22 pleadings to the defendant, dismissing plaintiff's complaint. 23 Once again, thank you both for excellent 24 presentations, I wish you well, stay safe. Thank you. 25 MS. GOTTESMAN: Thank you, your Honor. 1 MR. PARRINGTON: Thank you, your Honor. 2 (Proceedings Adjourned, 12:05 p.m.) 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 6th day of May, 2020. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25