BROOK ELLEN B.,

Plaintiff, Civil Action No. 6:19-CV-0721 (DEP) v.

COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DeSANTIS, DeSANTIS LAW FIRM MICHAEL V. DeSANTIS, ESQ. Attorneys at Law 286 Genesee Street Utica, NY 13501

FOR DEFENDANT HON. GRANT C. JAQUITH DANIEL S. TARABELLI, 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 August 12, 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.

David E. Peebles U.S. Magistrate Judge

Dated: August 18, 2020 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x BROOK ELLEN B.,

Plaintiff,

vs. 6:19-cv-721

COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION,

Defendant. -------------------------------------------------------x DECISION - August 12, 2020 James Hanley Federal Building, Syracuse, New York HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: DeSANTIS, DeSANTIS LAW FIRM Attorneys at Law 286 Genesee Street Utica, NY 13501 BY: MICHAEL V. DESANTIS, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 15 Sudbury Street Boston, MA 02203 BY: DANIEL STICE TARABELLI, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Very good. I'll have to let that be 2 the last word. First, let me express my thanks to counsel 3 for excellent written and oral presentations. I found this 4 case to be interesting and enjoyed working on it. 5 Plaintiff has commenced this proceeding pursuant to 6

(g) and 1383(c)(3) to 7 challenge an adverse determination by the Commissioner of 8 Social Security finding that she was not disabled at the 9 relevant times and, therefore, ineligible for the benefits 10 which she sought. 11 The background is as follows. Plaintiff was born 12 in November of 1984. She's currently 35 years of age. She 13 was 27 years old at the alleged onset of her disability on 14 May 1, 2012. She stands somewhere between 5-foot 2-inches 15 and 5-foot 3-inches in height, and at various times has 16 weighed between 162 and 195 pounds. Plaintiff has a high 17 school diploma and an Associate's Degree in computer 18 networking. While she was in school she attended regular 19 classes. 20 Plaintiff lives in Rome in a duplex, Rome, 21 New York, that is, with her children who in November of 2017 22 were thirteen, ten and seven years of age. Plaintiff is a 23 widow. She has or had at the time of the hearing a 24 boyfriend. Plaintiff drives some, although she testified 25 that she is nervous when she drives because of limitations in 1 her right foot and ankle. 2 Plaintiff worked until May 1, 2012, in several 3 positions. She was a sales associate and cashier at various 4 locations, and between January 2004 and February of 2011 was 5 a maid and caretaker, possibly for elderly patients. 6 Plaintiff suffered from severe foot burns in 7 Detroit, Michigan, when she was scalded in the bathtub in 8 1985. She was eleven months of age at the time. She had 9 several skin grafts to address her burns over the following 10 two years. She suffers from lingering foot pain and has 11 undergone several procedures, as counsel referenced. 12 In August of 2014, she underwent a percutaneous 13 Achilles lengthening of her right leg from Dr. Alan Zonno 14 with Upstate Orthopedics. That's at pages 488 and 489. On 15 October 5, 2015, she underwent a left percutaneous Achilles 16 lengthening by Dr. Scott VanValkenburg. The reference is 510 17 to 511. On February 20, 2017, she underwent two to five 18 metatarsal osteotomies and paring of hyperkeratosis on the 19 right foot. That was referenced at 716. On November 5, 20 2018, she underwent a fourth and fifth metatarsal resection 21 on her right side. And that was referenced at page 44. She 22 underwent some physical therapy but was discharged for 23 noncompliance. 24 Plaintiff also suffers from plantar fasciitis; lung 25 nodules; GERD, or Barrett's esophagitis; chronic migraines; 1 hip, knee, back and pelvic pain; bursitis; hypertension; 2 fibromyalgia; tarsal tunnel syndrome; and obesity. 3 Mentally, plaintiff has suffered from a general 4 anxiety disorder. She has not been hospitalized. She does 5 undergo therapy with a social worker every two weeks, but 6 there does not appear to be any records of that in the 7 Administrative Transcript. 8 Plaintiff has a fairly robust set of activities of 9 daily living. She is able to dress, groom, shower, clean, 10 cook, wash dishes, shop, drive, care for her children, take 11 her children to the playground, travels to a friend's house, 12 watches television, listens to the radio, and reads. 13 Plaintiff has been prescribed many medications, 14 including Zofran for nausea; Xanax, which she takes daily; 15 Gabapentin, which she takes daily; Hydrocodone; Oxycodone; 16 Topamax; Seroquel; Omeprazole, or Prilosec; Cortisone 17 injections; acetaminophen; and Claritin. 18 Plaintiff is a smoker. She smokes between one half 19 and one pack of cigarettes per day. She has been urged on 20 many occasions by her medical providers to quit, including at 21 456, 474, 608, 625 and 687 of the Administrative Transcript. 22 Procedurally, plaintiff applied for Title II and 23 Title XVI benefits on August 17, 2015, alleging a disability 24 onset date of May 1, 2012. She alleges at page 268 25 disability based on the following conditions: Bilateral foot 1 and ankle burns, Achilles contracture, right hammertoe, 2 obesity, migraine headaches, bursitis, hypertension, 3 fibromyalgia, and Barrett's esophagitis. 4 A hearing was conducted on November 28, 2011 to 5 address plaintiff's applications for benefits by 6 Administrative Law Judge, or ALJ, David Pang. ALJ Pang 7 issued an unfavorable decision on March 16, 2018. That 8 decision became a final determination of the Agency when the 9 Social Security Administration Council on May 21, 2019 denied 10 plaintiff's application for review. In doing so, the Appeals 11 Council opted not to exhibit additional documents submitted 12 by plaintiff's counsel. 13 This action was commenced on June 17, 2019 and is 14 timely. In his decision, ALJ Pang applied the familiar 15 five-step test for determining disability. 16 At step one, ALJ Pang concluded plaintiff had not 17 engaged in substantial gainful activity since May 1, 2012. 18 At step two, he concluded that plaintiff does 19 suffer from severe impairments that imposed more than minimal 20 limitations on her ability to perform basic work functions, 21 including bilateral foot and ankle burns, Achilles 22 contracture, right hammertoe, obesity, migraine headaches, 23 bursitis, hypertension, fibromyalgia, and Barrett's 24 esophagus. 25 At step three, ALJ Pang concluded that none of 1 those conditions meets or equals any of the listed 2 presumptively disabling conditions set forth in the 3 Commissioner's regulations, specifically considering listings 4 1.08, 8.08, 1.02, and fibromyalgia pursuant to Social 5 Security Ruling 12-2p. Also considered was listing 11.02 6 concerning migraines, and obesity was considered pursuant to 7 Social Security Ruling 02-1p. 8 Administrative Law Judge Pang next determined that 9 the claimant retains the residual functional capacity to 10 perform sedentary work with additional limitations set out at 11 page 91 of the Administrative Transcript, including: The 12 claimant has no limitations in sitting; she can stand and 13 walk for one hour in a day; she can stand or walk for no more 14 than ten minutes at any one time; and she can never operate 15 foot controls with lower right extremity. The claimant can 16 occasionally climb ramps and stairs, but never climb ladders, 17 ropes or scaffolds. The claimant can occasionally balance, 18 stoop, kneel, crouch, and crawl. The claimant can never 19 operate a motor vehicle in a work situation. 20 The Administrative Law Judge then concluded, based 21 on that residual functional capacity, at step four that 22 plaintiff is incapable of performing her past relevant work, 23 which would be with the assistance of a vocational expert 24 characterized as a cashier, a sales clerk, a 25 housekeeping/cleaner, and a home attendant. 1 At step five, again based on the testimony of a 2 vocational expert, Administrative Law Judge Pang concluded 3 that the claimant is capable of performing work in the 4 national economy, including as a final assembler, inspector, 5 and a table worker. I note that ALJ Pang did conclude that 6 if the Medical-Vocational Guidelines applied and plaintiff 7 were capable of performing a full range of sedentary work, 8 Rule 201.28 of the grids would direct a finding of no 9 disability. 10 In this case, the Court's task is limited to 11 determine whether substantial evidence supports the 12 Administrative Law Judge's determination and whether correct 13 legal principles were applied. The Second Circuit addressed 14 this standard in Brault versus Social Security Administration 15 Commissioner, reported at

. 16 First, it was noted, and it's well accepted, that 17 substantial evidence means such relevant evidence as a 18 reasonable mind might accept as adequate to support a 19 conclusion. The Second Circuit noted that the substantial 20 evidence standard is extremely deferential and stringent, 21 more so than the clearly erroneous standard which we as 22 lawyers and jurists are familiar with. 23 Significantly, the Second Circuit noted that the 24 standard means once an ALJ finds a fact, that fact can be 25 rejected only if a reasonable factfinder would have to 1 conclude otherwise. I note also, as the Commissioner has 2 pointed out, that the mere existence of evidence that would 3 counter the Administrative Law Judge's determination does not 4 necessarily mean that his determination is not supported by 5 substantial evidence. 6 In this case plaintiff alleges two contentions, 7 both surrounding the step three determination of ALJ Pang. 8 She argues that her conditions meet or equal the listing 9 1.08; and secondly, that her condition meets or equals 10 listing 8.08. I note that it is plaintiff's burden. Under 11 Poupore through step four of the sequential determination, 12 plaintiff bears the burden. When it comes to a listing, the 13 listing is met if all criteria of the listing are met. 14 The issue in this case then is whether plaintiff 15 has proven that the ALJ's rejection of step three is not 16 supported by substantial evidence. In making that analysis, 17 the Court may look to the entirety of the Administrative Law 18 Judge's decision. 19 First, taking listing 8.08, that listing requires 20 the following: "Burns with extensive skin lesions that have 21 lasted or can be expected to last for a continuous period of 22 at least twelve months." So, there are three criteria that 23 must be met. Burns obviously are met. Extensive skin 24 lesions the Administrative Law Judge concluded was not met. 25 That fact was discussed at page 90 of the Administrative 1 Transcript. 2 A review of the Administrative Transcript supports 3 that determination. There are many exams of the plaintiff 4 that found no lesions. I found reference to no lesions at 5 pages 429, 432, 435, 437, 442, 444, 446 and 448 of the 6 Administrative Transcript. I also found at least two 7 occasions when plaintiff denied the existence of any lesions, 8 at page 607 and 625. I reject, respectively, plaintiff's 9 contention that any wound, including a burn and a skin graft, 10 can constitute a lesion. So, I find that the rejection of 11 listing 8.08 is supported by substantial evidence. 12 Listing 1.08 presents a more interesting question. 13 That listing requires, "Soft tissue injury (e.g. burns) of an 14 upper or lower extremity, trunk, or face and head, under 15 continuing surgical management, as defined in 1.00M, directed 16 toward the salvage or restoration of major function, and such 17 major function was not restored or expected to be restored 18 within twelve months of onset." It goes on to say that, 19 "Major function of the face and head is described in 1.00O." 20 Unfortunately, it does not have a similar definition of major 21 function with respect to the lower extremities. 22 The first element, of course, is under continuing 23 surgical management, as defined in 1.00M. And that I would 24 agree with plaintiff probably is met in this case. 25 The second element is directed toward the salvage 1 or restoration of major function. As the Commissioner's 2 counsel has noted, that the courts have looked to other 3 definitions to fill the void that exists when the listings 4 don't define that term. The case that was cited, Murray 5 versus Commissioner of Social Security,

, from 6 the Eastern District of New York 2014, I found to be 7 persuasive in that regard. 8 The function in this case is the ability to 9 ambulate. That is defined in Section 1.00B, as follows: 10 "Inability to ambulate effectively means an extreme 11 limitation of the ability to walk; i.e., an impairment that 12 interferes very seriously with the individual's ability to 13 independently initiate, sustain, or complete activities. 14 Ineffective ambulation is defined generally as having 15 insufficient lower extremity functioning to permit 16 independent ambulation without the use of a hand-held 17 assistive device that limits the function of both upper 18 extremities." It goes on to state, "To ambulate effectively, 19 individuals must be capable of sustaining a reasonable 20 walking pace over a sufficient distance to be able to carry 21 out activities of daily living. They must have the ability 22 to travel without companion assistance to and from a place of 23 employment or school. Therefore, examples of ineffective 24 ambulation include, but are not limited to, the inability to 25 walk without the use of a walker, two crutches or two canes, 1 the inability to walk a block at a reasonable pace on rough 2 or uneven surfaces, the inability to use standard public 3 transportation, the inability to carry out routine ambulatory 4 activities, such as shopping and banking, and the inability 5 to climb a few steps at a reasonable pace with the use of a 6 single handrail. The ability to walk independently about 7 one's home without use of assistive devices does not, in and 8 of itself, constitute effective ambulation." 9 In this case, I would note that the loss of 10 function or the lack of restoration of function must also 11 last more than twelve months. There is no question that 12 plaintiff has undergone several surgical procedures, but it 13 appears very clear from the record, as the Administrative Law 14 Judge concluded at page 89, function was restored within 15 twelve months. 16 The record reflects she did very well in response 17 to surgery. There are many reports of a normal gait from 18 12/23/14, at page 395; from August 28, 2015, at page 471, 19 plaintiff was doing well; on March 14, 2016, at 601, 20 plaintiff ambulates without difficulty; at page 691 from 21 October of 2016, gait normal; page 707, from, if I read my 22 writing correctly, May 9, 2017, normal gait. 23 So, the finding that there was no evidence of 24 extreme inability to ambulate for twelve consecutive months, 25 pivotal to the Administrative Law Judge's rejection of 1 listing 1.08, is supported by substantial evidence. Also, 2 the Administrative Law Judge noted at page 95 that plaintiff 3 is able to carry out activities of daily living and with 4 normal ambulatory activity. 5 So, in conclusion, I find that the rejection of the 6 two listings cited and relied upon by the plaintiff at step 7 three are supported by substantial evidence. The fact that 8 the plaintiff may be able to cite contrary evidence is not 9 sufficient to undermine a finding of substantial evidence 10 supporting the Administrative Law Judge's determination. 11 So, I will grant judgment on the pleadings to the 12 defendant and order dismissal of plaintiff's complaint. 13 Again, thank you both for the excellent 14 presentations. I hope you stay safe during these challenging 15 times. 16 * * * 17 18 19 20 21 22 23 24 25 C E R T I F I C A T I O N

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.

________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter