UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ RHONDA A., Plaintiff, v. 1:19-CV-781(TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________________________ APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP MELISSA DelGUERCIO, ESQ. for Plaintiff 250 South Clinton Street, Suite 210 Syracuse, NY 13202 HON. GRANT JAQUITH KEVIN M. PARRINGTON, ESQ. United States Attorney Special Assistant for Defendant 100 S. Clinton St. PO Box 7198 Syracuse, NY 13261-7198 THÉRÈSE WILEY DANCKS, United States Magistrate Judge ORDER Presently before the Court in this action, in which Plaintiff seeks judicial review of an adverse administrative determination by the Commissioner, pursuant to

(g), are cross-motions for judgment on the pleadings.1 Oral argument was conducted in connection with those motions on July 24, 2020, during a telephone conference at which a court reporter was 1 This matter, which is before me on consent of the parties pursuant to

(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. present. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found the Commissioner’s determination resulted from the application of proper legal principles and was supported by substantial evidence, and I provided further detail regarding my reasoning and addressing the specific issues raised by the Plaintiff in her 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 in its entirety by reference herein, it is hereby, ORDERED, as follows: (1) Defendant’s motion for judgment on the pleadings is GRANTED; (2) The Commissioner’s determination that Plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED; and (3) The Clerk is directed to enter judgment, based upon this determination, dismissing Plaintiff's complaint in its entirety. SO ORDERED.

Dated: July 30, 2020 Syracuse, New York ‘ Ma Therese Wiley Dancks United States Magistrate Judge

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x RHONDA A.,

Plaintiff,

vs. 1:19-CV-781

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on July 24, 2020, the HONORABLE THÉRÈSE WILEY DANCKS, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: OLINSKY LAW GROUP Attorneys at Law Suite 210 Syracuse, New York 13202 BY: MELISSA DelGUERCIO, 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 M. 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: I have before me a request for judicial 3 review of an adverse determination by the Acting Commissioner 4 under

(g). 5 The background is as follows: Plaintiff was born 6 in February of 1973 and is currently 47 years old. She was 7 43 years old at the onset of her alleged disability. She has 8 a high school diploma. She has not engaged in substantial 9 gainful activity since the alleged onset date. She 10 previously worked jobs that included a cashier, a bakery 11 clerk, and a baby-sitter. In her application for benefits, 12 she indicated she suffers from neuropathy of both hands and 13 feet, depression, asthma, and gastrointestinal problems. 14 Procedurally, plaintiff filed for Title II benefits 15 on May 26, 2016, and for Title XVI benefits on June 27, 2016. 16 Both applications alleged disability beginning specifically 17 on May 5th of 2016. A hearing was conducted by 18 Administrative Law Judge Kieran McCormack on May 23, 2018, 19 wherein plaintiff testified as did a vocational expert. The 20 plaintiff was represented by an attorney at the hearing who 21 also represented plaintiff through the Appeals Council 22 process. ALJ McCormack issued a decision on July 5, 2018, 23 finding that plaintiff was not disabled at the relevant 24 times. The Social Security Administration made that a final 25 determination of the agency by the Appeals Council's May 5, 1 2019 denial of plaintiff's request for review. This timely 2 District Court action followed. 3 ALJ McCormack applied the five-step sequential test 4 for determining disability. At step one, he found plaintiff 5 had not engaged in substantial gainful activity since the 6 onset date of disability. At step two, he concluded 7 plaintiff has the following severe conditions: Diabetes 8 mellitus, diabetic neuropathy, degenerative disc disease of 9 the cervical and lumbar spine, osteoarthritis of the right 10 knee, bilateral carpal tunnel syndrome, morbid obesity, 11 asthma and chronic rhinitis, and major depressive disorder. 12 At step three, the ALJ concluded that plaintiff's conditions 13 do not meet or medically equal any of the listed 14 presumptively disabling conditions, considering several 15 physical conditions related to spine and joint disorders, 16 asthma, diabetes, peripheral neuropathy, and also the mental 17 health listings. Then after a review of the record evidence, 18 the ALJ determined plaintiff is capable of performing 19 sedentary work, but with several detailed additional 20 nonexertional limitations considering her physical and mental 21 abilities. At step four, the ALJ concluded plaintiff could 22 not perform any of her past relevant work. At step five, the 23 ALJ applied the Medical-Vocational Guidelines as well as 24 obtained testimony from a vocational expert, and concluded 25 that plaintiff was not disabled. 1 As relevant to the time period in question, 2 plaintiff treated for primary care at Hudson River 3 Healthcare. She saw a nurse practitioner there as well as 4 several physicians, mainly Dr. Welch-Philp, and she also saw 5 a podiatrist there. She was also treated at Westchester 6 Neurology mainly by Dr. Qureshi, and also by sleep specialist 7 Dr. Malkani, and nurse practitioner Doblin. During the 8 relevant time period, she also treated at Gastroenterology of 9 Westchester with Dr. Fallick, and at Spinal Pain and 10 Rehabilitation Medicine with Dr. Shah and a physical 11 therapist. She also received gastroenterology care from 12 Dr. Turchioe, and orthopedic care from Dr. Kalache. She was 13 followed mainly for allergy testing and care by Dr. Nowak of 14 ENT and Allergy Associates, and for mental health care by 15 providers at Mental Health Associates of Westchester. The 16 administrative record also contains treatment notes of two 17 emergency department visits at Saint Joseph's Hospital in 18 Yonkers, New York, and a short admission there for chest 19 pain. 20 During the relevant time period, diagnostic studies 21 performed include various x-rays of her chest, her lumbar and 22 cervical spine, her hands, and her right hip, knee, and 23 ankle. She had various gastroenterology scopes, an EEG in 24 July 2016, a sleep study in November 2016, and various MRIs 25 of the lumbar spine, brain, and cervical spine. The relevant 1 cervical MRIs were done June 27, 2016 and April 6, 2018. She 2 also had nerve conduction studies performed in September and 3 November of 2017. 4 Source statements in the record are from 5 Dr. Neghassi of Hudson River Healthcare, and Dr. Elias from 6 Mental Health Associates of Westchester. Other opinions 7 included in the record are from internal medicine consultant 8 Dr. Wissner, who opined on plaintiff's physical limitations, 9 and consult -- excuse me, and psychologist consultant 10 Dr. Antiaris who conducted a psychological evaluation. 11 Agency reviewer psychologist Dr. Dambrocia also provided an 12 opinion regarding plaintiff's limitations. 13 I've reviewed the record carefully and in light of 14 the arguments of counsel and what counsel have presented in 15 their briefs, I've applied the requisite deferential standard 16 which requires me to determine whether proper legal 17 principles were applied and whether the result is supported 18 by substantial evidence. 19 I'll turn first to the plaintiff's argument that 20 the ALJ erred in evaluating Listing 1.04 regarding 21 plaintiff's cervical spine impairments. A claimant is 22 automatically entitled to benefits if his or her impairment 23 meets criteria set forth in "the Listings" found in 20 C.F.R. 24 Part 404, subpart P, appendix 1. The burden is on the 25 plaintiff to present medical findings that show her 1 impairments match a listing or are equal in severity to a 2 listed impairment. In order to show that an impairment 3 matches a listing, the claimant must show her impairment 4 meets all of the specified medical criteria. If a claimant's 5 impairment manifests only some of those criteria, no matter 6 how severely, the impairment does not qualify. The ALJ 7 should set forth a sufficient rationale in support of his 8 decision to find or not to find a listed impairment. Where 9 it is unclear what evidence the ALJ relied on in making the 10 step three determination, the court may recommend remand. 11 However, a court may also look to other portions of the ALJ's 12 decision as credible evidence in finding that the ALJ's 13 determination was supported by substantial evidence. In 14 other words, if an ALJ's decision lacks an express rationale 15 for finding that a claimant does not meet a Listing, a court 16 may still uphold the ALJ's determination if it is supported 17 by substantial evidence. 18 Plaintiff argues that her cervical impairments 19 satisfy the criteria for spinal disorders in Listing 1.04, 20 subsection A, which requires evidence of a nerve root 21 compression, characterized by "neuro-anatomic distribution of 22 pain; limitation of motion of the spine; and motor loss 23 (atrophy with associated muscle weakness or muscle weakness) 24 accompanied by sensory or reflex loss." I find the record is 25 clear that the plaintiff has not exhibited each of the 1 necessary neurological deficits found in the listing and that 2 the ALJ explained it in his decision. 3 The ALJ cited several MRIs to support this 4 determination. The cervical spine MRI in June of 2016 showed 5 no foraminal impingement and no abnormal spinal cord 6 intensity. The lumbar MRI in 2016 showed no spinal stenosis, 7 and no compromise of the spinal cord canal or foramina. The 8 April 2018 MRI of the cervical spine, which plaintiff argues 9 shows definitive nerve root compression, is unclear and 10 ambiguous as it indicates a mild disc bulge at C6-C7 is 11 "possibly slightly impinging the right C7 nerve root." Even 12 if the MRI had shown clear nerve root compression, other 13 substantial evidence in the record shows that plaintiff did 14 not meet the neurological deficits required by the subject 15 listing since the impairment must also involve motor loss, 16 which is atrophy associated with muscle weakness, or muscle 17 weakness. For example, rehabilitation and pain specialist 18 Dr. Shah repeatedly charted from June of 2017 through 19 February of 2018 that plaintiff's neurologic exams showed 20 intact motor and sensory findings, and symmetrical deep 21 tendon reflexes, although plaintiff did exhibit muscle spasms 22 and tenderness in the cervical area. The Westchester 23 neurologists Dr. Qureshi and Dr. Malkani also repeatedly 24 noted that plaintiff's motor strength was intact to 25 confrontation in upper and lower extremities. Although she 1 had tenderness in her cervical paraspinal area bilaterally, 2 her muscle tone was normal. She had normal strength and 3 normal deep tendon reflexes in both upper extremities. 4 Dr. Wissner's consultative exam performed during the relevant 5 time period showed full range of motion in plaintiff's 6 cervical spine. On exam, plaintiff had no muscle atrophy in 7 her extremities, and her strength and deep tendon reflexes 8 were equal at 5 out of 5 in the upper and lower extremities. 9 Plaintiff's grip strength was 5 out of 5 bilaterally. Thus, 10 I find that substantial evidence supports the ALJ's 11 determination that plaintiff's cervical impairment does not 12 meet the relevant listing requirement. I also find that, 13 although the ALJ did not outline plaintiff's medical records 14 concerning her cervical impairments when determining whether 15 they met the listing criteria, he specifically referenced 16 that he discussed the medical evidence in another section of 17 the decision. Indeed, the ALJ later detailed all of 18 plaintiff's medical records including her cervical condition 19 when determining her RFC. It's entirely proper to read the 20 ALJ's decision in whole to determine whether substantial 21 evidence supports the conclusions. 22 Next, I turn to plaintiff's arguments that the ALJ 23 erred in determination of plaintiff's residual functional 24 capacity, or RFC, and specifically that the ALJ did not give 25 proper weight to the opinion evidence. I have done a 1 thorough and searching review of the record and find that the 2 ALJ properly assessed the medical and nonmedical evidence of 3 record and the RFC is supported by substantial evidence. The 4 ALJ thoroughly discussed the medical evidence and the other 5 evidence of record, formulated the RFC based upon an 6 assessment of all medical and nonmedical evidence as a whole 7 for the relevant time period, and thoroughly explained his 8 analysis in arriving at the RFC. 9 The ALJ's decision shows he considered plaintiff's 10 testimony, her adult function report, her activities of daily 11 living as reported to treatment providers and consultants, 12 and all treatment records for the relevant period. He gave 13 significant weight to the opinion of consulting internal 14 medicine physician Dr. Wissner. He credited the examining 15 consulting psychologist Dr. Antiaris' opinion with 16 significant weight to the extent it reflected her clinical 17 observation, but gave it little weight regarding the 18 conclusion that plaintiff's psychiatric problems would not 19 interfere with her ability to function on a daily basis 20 because the record showed otherwise. The ALJ also gave 21 significant weight to nonexamining agency psychologist 22 Dr. Dambrocia. He gave little or no more than some weight to 23 the opinion of Dr. Neghassi who provided a diabetes source 24 statement, and gave little weight to treating psychiatrist 25 Dr. Elias. Of note, I reviewed the records thoroughly and 1 could find not one treatment note authored by Dr. Neghassi. 2 Plaintiff argues the assessment of the opinions of 3 Dr. Neghassi and Dr. Elias were improper because the ALJ 4 mischaracterized the medical evidence regarding the objective 5 findings about plaintiff's diabetes, asthma and hypertension, 6 as well as her mental symptoms and findings and her treatment 7 relationships with these physicians. For the following 8 reasons, I find these arguments unpersuasive. 9 Initially, I note that an ALJ is not required to 10 accept every limitation assessed by an examining consultant. 11 There is no requirement that the ALJ accept every limitation 12 in the opinion of a medical source or consultative examiner. 13 Nor must the RFC identically track any one of those opinions. 14 The ALJ has the responsibility of reviewing all of the 15 evidence before him, resolving inconsistencies, and making a 16 determination consistent with the evidence as a whole. In 17 other words, it is the ALJ's responsibility to weigh the 18 various opinions along with other evidence and determine 19 which limitations were supported by the overall evidence of 20 record. The court cannot re-weigh the evidence under the 21 substantial evidence review standard. Here, I find the ALJ 22 clearly considered all of the opinions and other evidence of 23 record when determining plaintiff's overall RFC including the 24 mental limitations. I have done a thorough and searching 25 review of the record and find the ALJ properly assessed the 1 opinions and gave good reasons for the weight given to the 2 opinions. 3 Regarding the opinion of Dr. Neghassi from Hudson 4 River Healthcare, the ALJ acknowledged the treatment 5 relationship with plaintiff, but noted that the record showed 6 plaintiff's diabetes, hypertension, and asthma were mostly 7 well controlled and stable, and not associated with any 8 complications, although plaintiff had exhibited a mild tremor 9 on one encounter in April of 2017. Progress notes, for 10 example, by Dr. Philp at Hudson River Healthcare repeatedly 11 noted that plaintiff's type 2 diabetes was without 12 complications, although she had some elevated fingersticks at 13 times. Her diabetes was noted as stable with medications, 14 and she was noted to be doing well with her diabetes. Her 15 asthma was found to be mild and intermittent. Her blood 16 pressure was noted to be "at goal." The podiatrist at Hudson 17 River Healthcare noted plaintiff's neurologic exams were 18 normal including coordination, and her joint position sense 19 and vibratory sense were intact. 20 Noted observations by the physicians at Westchester 21 Neurology also do not support Dr. Neghassi's opinion that 22 plaintiff could stand or walk for only 10 minutes at a time 23 and lift only 10 pounds occasionally. Dr. Qureshi and 24 Dr. Malkani repeatedly observed plaintiff to have an 25 unremarkable gait with no ataxia, and with adequate range of 1 motion in her musculoskeletal system. She had some decreased 2 sensation mainly on her right, but she had normal reflexes 3 and normal strength in both upper extremities. Likewise, 4 Dr. Shah consistently noted no ataxia in her gait, and 5 normal, intact motor and sensory exams. Orthopedist 6 Dr. Kalache found plaintiff to have arthritis in the right 7 knee and hip, but she had full extension and flexion of the 8 knee. Dr. Fallick noted plaintiff's overall musculoskeletal 9 system was normal, and she had normal balance, gait, and 10 stance. Consultant Dr. Wissner noted plaintiff had a normal 11 gait, could walk on heels and toes without difficulty, and 12 she had a normal stance. Dr. Wissner also charted that no 13 muscle atrophy was present in plaintiff's extremities and she 14 had full and equal strength in her upper and lower 15 extremities. Thus these medical findings support the ALJ's 16 determination that plaintiff could do sedentary work with 17 some limitations. Additionally, I find that while 18 Dr. Wissner's findings were from an exam in 2016, her 19 findings were consistent with the later observations by Drs. 20 Shah, Qureshi, and Malkani, such that Dr. Wissner's opinions 21 were not "stale" as plaintiff argues. I also find that while 22 diagnostic studies showed diabetic neuropathy, the ALJ noted 23 that to be a severe condition and the decision shows he 24 clearly considered it in limiting plaintiff to sedentary work 25 with additional limitations. As such, I find no error with 1 the ALJ's consideration of Dr. Neghassi's opinion. 2 Turning now to the opinion of Dr. Elias of Mental 3 Health Associates of Westchester regarding plaintiff's mental 4 capacity, I find the ALJ properly considered it and the 5 little weight attributed to it was also supported by 6 substantial evidence. The ALJ noted the treatment 7 relationship Dr. Elias had with plaintiff, and his findings 8 on exam of the plaintiff, and the findings of other health 9 professionals regarding plaintiff's mental status. The 10 mental status evaluations of plaintiff done at Mental Health 11 Associates between April of 2016 and January of 2018 12 repeatedly show plaintiff to be appropriately groomed, with 13 no abnormal psychomotor behavior exhibited. Her speech 14 always had a normal rate and rhythm. Her affect was 15 consistently euthymic, meaning it was normal. Her mood was 16 good and her thought process was logical. Her attention and 17 concentration were good and she had fair judgment and 18 insight. She denied hallucinations, delusions, and suicidal 19 ideation, although she was noted to have attempted suicide in 20 2015 before the relevant date of disability. She was always 21 noted to be oriented in all spheres also, and with average 22 intellectual functioning. Her attitude was good and she was 23 engaged in her treatment. In short, these findings were 24 consistently normal and consistent with other evidence in the 25 record and inconsistent with Dr. Elias' expressed opinion. 1 For example, Dr. Qureshi and Dr. Malkani noted that 2 she was alert and responded to questions appropriately. 3 Dr. Fallick found her to have anxiety, but no sleep 4 disturbances and no depression. Dr. Shah repeatedly found 5 her affect and behavior normal and appropriate. Dr. Nowak 6 charted that she was oriented in all spheres, and had normal 7 level of consciousness, and normal memory. The providers at 8 Hudson River Healthcare consistently found plaintiff to be 9 fully alert and oriented with a pleasant mood and normal eye 10 contact. Consultant Dr. Antiaris also found plaintiff to 11 have appropriate eye contact, with normal posture and motor 12 behavior. Her speech was fluent and clear. Her thought 13 processes were coherent and goal oriented. Her mood was 14 normal, and she had a full range and appropriate affect. Her 15 sensorium was clear and she was oriented in all spheres. Her 16 attention and concentration were mildly impaired due to her 17 limited intellectual functioning, and her cognitive 18 functioning was below average, but her remote and recent 19 memory were intact and she had fair judgment and good 20 insight. 21 In short, I find that the ALJ considered the 22 relevant factors when weighing Dr. Elias' opinion by noting 23 the opinion was inconsistent with examinations and treatment 24 notes from his own practice, as well as other treating 25 providers as I've outlined. Plaintiff's daily activities of 1 living as she reported and as reported to her providers are 2 also inconsistent with the limitations opined by Dr. Elias. 3 Plaintiff cooked two to three times a week and prepared meals 4 daily. She did laundry and dusting and washed dishes and she 5 shopped. She was able to take care of her personal hygiene 6 and she had children that she took care of. She was able to 7 use a smartphone, she used public transportation and could 8 handle money and pay her bills. 9 Plaintiff also takes issue with the ALJ giving 10 significant weight to the opinion of nonexamining agency 11 consultant Dr. Dambrocia. However, this opinion is 12 consistent with other findings in the record as I've already 13 detailed. Although Dr. Dambrocia did not personally examine 14 the plaintiff, it is well settled that the opinions of state 15 agency consultants can be given weight if supported by 16 medical evidence and other evidence of record. The ALJ 17 clearly stated, and the record supports, that he gave 18 significant weight to Dr. Dambrocia's opinion because it was 19 supported by the record evidence as I've outlined. 20 I also find all of the treatment briefly outlined 21 above was thoroughly reviewed by the ALJ, as I've indicated 22 earlier, and the records provide clear and substantial 23 evidence to support the RFC determination such that 24 meaningful judicial review is possible. In Cichocki v. 25 Astrue,

, the Second Circuit stated that only 1 where the reviewing court is unable to fathom the ALJ's 2 rationale in relation to the evidence in the record would 3 remand be appropriate for further findings or clearer 4 explanations of the decision. Here, I find the ALJ's 5 analysis regarding plaintiff's functional limitations and 6 restrictions affords an adequate basis for meaningful 7 judicial review, applies the proper standards, and is 8 supported by substantial evidence such that additional 9 analysis would be unnecessary or superfluous. Hang on for 10 one second, please. Okay, off the record. 11 (A discussion was held off the record.) 12 THE COURT: All in all, I find the ALJ properly 13 weighed the opinions of record for the relevant period, gave 14 good reasons for the weight given to the opinions, and the 15 ALJ considered all of the medical evidence showing mostly 16 limited findings on the mental exams. The ALJ also properly 17 considered plaintiff's own reported activities per her 18 testimony, her function report, and as she reported to 19 providers and consultants. All of this supports the ALJ's 20 determination of plaintiff's RFC. In short, I find the ALJ 21 properly explained the reasons for the RFC. In light of the 22 foregoing and considering the entire record and the ALJ's 23 determination, I find the ALJ applied the appropriate legal 24 standards of review in considering the opinion evidence in 25 determining plaintiff's RFC and the RFC is supported by 1 substantial evidence. 2 So I grant defendant's motion for judgment on the 3 pleadings and I will enter a judgment dismissing plaintiff's 4 complaint in this action. A copy of the transcript of my 5 decision will be attached to the order should any appeal be 6 taken from my determination. 7 (Whereupon the proceedings continued.) 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 28th day of July, 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