UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ______________________________________________ NICHOLAS M., Plaintiff, v. 1:19-CV-355(TWD) COMMISSIONER OF SOCIAL SECURITY, Defendant. ______________________________________________ APPEARANCES: OF COUNSEL: OLINSKY LAW GROUP MELISSA PALMER, ESQ. for Plaintiff 250 South Clinton Street, Suite 210 Syracuse, NY 13202 HON. GRANT JAQUITH RAMI VANEGAS, 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 16, 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 his 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 23, 2020 Syracuse, New York ‘ Ma Therese Wiley Dancks United States Magistrate Judge

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x NICHOLAS J. M.,

Plaintiff,

vs. 1:19-CV-355

COMMISSIONER OF SOCIAL SECURITY,

Defendant. -------------------------------------------------------x DECISION - July 16, 2020 James Hanley Federal Building, Syracuse, New York HONORABLE THÉRÈSE WILEY DANCKS United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: OLINSKY LAW GROUP Attorneys at Law 250 South Clinton Street Syracuse, NY 13202 BY: MELISSA A. PALMER, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 15 New Sudbury Street Boston, MA 02203 BY: RAMI VANEGAS, 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 a request for judicial 2 review of an adverse determination by the Acting Commissioner 3 under

(g). 4 The background is as follows: The plaintiff was 5 born in November of 1982 and is currently 37 years old. He 6 was 32 years old at the onset of his alleged disability. He 7 completed some high school and he has a GED. He has not 8 engaged in substantial gainful activity since the alleged 9 onset date. He has worked jobs since then in the auto 10 service industry and as a groundskeeper, but those jobs did 11 not rise to the level of substantial gainful activity. In 12 his application for benefits, he indicated he suffers from 13 traumatic brain injury, neck pain and stiffness, right sided 14 numbness, and balance problems. 15 Procedurally, the plaintiff filed for Title II 16 benefits on July 13, 2016, alleging disability beginning 17 specifically on March 15, 2015. A hearing was conducted by 18 Administrative Law Judge Asad Ba-Yunus on December 20, 2017, 19 wherein plaintiff testified, as did a vocational expert. 20 Plaintiff was represented by an attorney at that hearing who 21 also represented plaintiff through the Appeals Council 22 process. ALJ Ba-Yunus issued a decision on March 22, 2018, 23 finding the plaintiff was not disabled at the relevant times. 24 The Social Security Administration made that a final 25 determination of the Agency by the Appeals Council's 1 January 22, 2019 denial of plaintiff's request for review. 2 This timely District Court action followed. 3 ALJ Ba-Yunus 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 that 7 plaintiff suffers from several severe conditions secondary to 8 a motor vehicle accident, including traumatic brain injury 9 with subarachnoid hemorrhage, status post left occipital 10 condyle fracture, status post right tibia/fibula fracture 11 requiring reduction and internal fixation surgery, ankle and 12 hip dislocation with reduction, right sided numbness, 13 deficits in balancing, and post traumatic epileptic seizures. 14 At step three, the ALJ concluded that plaintiff's conditions 15 do not meet or medically equal any of the listed 16 presumptively disabling conditions, considering several 17 physical and mental health listings. Then after a review of 18 the record evidence, the ALJ determined plaintiff is capable 19 of performing light work but with several detailed additional 20 postural and non-exertional limitations considering his 21 physical and mental abilities. At step four, the ALJ 22 concluded plaintiff could not perform any of his past 23 relevant work. At step five, the ALJ applied the 24 Medical-Vocational Guidelines as well as obtained testimony 25 from a vocational expert, and concluded that the plaintiff 1 was not disabled. 2 As relevant to the time period in question, 3 plaintiff was treated at Albany Medical Center and at Glens 4 Falls Hospital after his motor vehicle accident. He also 5 received physical and occupational therapy at Glens Falls 6 Rehabilitation and Wellness Center. He treated with various 7 providers at Adirondack Rehabilitation Medicine, and also 8 treated with neurologist Dr. Francisco Gomez of Gomez 9 Neurology, primary care physician Dr. Thomas Portuese of 10 Hudson Headwaters Health Network, and neurosurgeon Dr. John 11 German of Albany Medical Center. Diagnostic studies 12 performed include an EMG in June of 2013, two EEGs, one in 13 June of 2013 and the other in December of 2017, MRIs of the 14 brain and cervical spine, and various other X-rays. A 15 neuropsychological evaluation was conducted by psychologist 16 Dr. Phyllis Broege in November of 2017, who also provided a 17 source statement. Other opinions in the record are from 18 treating physician Dr. Portuese; occupational medicine 19 consultant Dr. William Rogers, who opined on plaintiff's 20 physical limitations; and psychologist Dr. Thomas Osika, who 21 conducted a psychological evaluation. Agency record reviewer 22 psychologist Dr. M. Momot-Baker also provided an opinion 23 regarding plaintiff's limitations. 24 I've reviewed the record carefully, and in light of 25 the arguments of counsel and what counsel have presented in 1 their briefs, I have applied the requisite deferential 2 standard which requires me to determine whether proper legal 3 principles were applied and whether the result is supported 4 by substantial evidence. 5 I'll turn first to the plaintiff's argument that 6 the ALJ erred in the determination of the plaintiff's 7 residual functional capacity, or RFC, and specifically that 8 the ALJ did not give proper weight to the opinion evidence. 9 I've done a thorough and searching review of the 10 record and find that the ALJ did properly assess the medical 11 and non-medical evidence of record and the RFC is supported 12 by substantial evidence. The ALJ thoroughly discussed the 13 medical evidence and other evidence of record, formulated the 14 RFC based upon an assessment of all medical and non-medical 15 evidence as a whole for the relevant time period, and 16 thoroughly explained his analysis in arriving at the RFC. 17 The ALJ's decision shows he considered plaintiff's 18 testimony, his adult function report, his activities, and all 19 treatment records for the relevant period. He noted 20 plaintiff had a history of a motor vehicle accident causing 21 numerous serious injuries and the need for multiple 22 surgeries. He credited examining consulting psychologist 23 Dr. Osika's opinion with significant weight and also gave 24 significant weight to non-examining Agency psychologist 25 Dr. Momot-Baker. He gave very little weight to the opinion 1 of psychologist Dr. Broege, who performed a 2 neuropsychological evaluation at the referral of primary care 3 physician Dr. Portuese. The ALJ also gave little weight to 4 the opinion of Dr. Portuese. 5 Plaintiff argued the ALJ's assessment of 6 Dr. Momot-Baker's opinion was improper because he accorded 7 more weight to it than to the opinions of examining and 8 treating providers and because the opinion was inconsistent 9 with the opinions of Dr. Broege and Dr. Portuese. Plaintiff 10 also argues the RFC was not consistent with Dr. Osika's 11 opinion, which was accorded significant weight. For the 12 following reasons, I find these arguments unpersuasive. 13 Initially, I note that the ALJ is not required to 14 accept every limitation assessed by an examining consultant. 15 Next, I note that the psychological exam by Dr. Osika, to 16 which significant weight was given, was largely unremarkable. 17 While Dr. Osika noted plaintiff reported having trouble with 18 his memory and trouble following directions since the motor 19 vehicle accident, Dr. Osika noted plaintiff drove himself 20 alone to the appointment. Plaintiff was casually dressed 21 with adequate hygiene. His speech was fluent, coherent and 22 logical, and his insight and judgment were fair to good. He 23 was fully oriented in all spheres and alert, and there were 24 no signs of delusions, hallucinations, obsessions or 25 compulsions. His mood and affect were mildly dysphoric and, 1 as plaintiff reported, he had trouble with concentration and 2 energy level. In describing and assessing plaintiff's 3 functional abilities, Dr. Osika noted that plaintiff had 4 trouble with balance and had a hard time doing chores around 5 the house, but he did accomplish some maintenance and yard 6 work, watched television, played with his dogs, and spent 7 some time with his family and friends. Dr. Osika thought 8 plaintiff would benefit from counseling and that it may be 9 helpful to have a more extensive evaluation of his memory and 10 concentration to elicit his strengths and weaknesses, but 11 overall Dr. Osika opined that plaintiff would have mild 12 difficulty with simple tasks and moderate difficulty with 13 complex tasks. Dr. Osika also opined plaintiff would have 14 mild difficulty with the ability to interact with people in 15 the workplace. 16 Notably, psychiatric and mental exams by other 17 providers were largely unremarkable. For example, on 18 multiple dates of treatment during the relevant time period, 19 Dr. German and other providers at Albany Medical Center's 20 neurosurgery service found plaintiff pleasant, fully alert 21 and oriented, and with clear, fluent and appropriate speech. 22 Although plaintiff complained of mild memory difficulties, 23 Dr. German repeatedly noted he followed complex commands 24 without difficulty and he asked and answered questions 25 appropriately. Neurologist Dr. Gomez noted plaintiff on 1 multiple office encounters to be completely alert, oriented 2 and cooperative. Dr. Gomez also noted plaintiff's speech, 3 concentration, recent and remote memory appeared normal to 4 conversation. In April 2017 plaintiff reported he felt 5 better, although he complained of some memory issues, and an 6 ambulatory EEG in December of 2017 showed some mild epileptic 7 activity. The approximately 22 encounter notes of treating 8 physician Dr. Portuese from June 2013 to July of 2016 all 9 show that plaintiff had good judgment and he was always 10 active, alert and fully oriented. Dr. Portuese also 11 consistently noted plaintiff's recent and remote memories 12 were entirely normal. 13 Dr. Portuese provided a source statement in which 14 he opined plaintiff would be 10 percent off task except for 15 being 15 to 20 percent off task in maintaining a regular work 16 schedule, understanding and carrying out simple instructions, 17 maintaining concentration to complete tasks in a timely 18 manner, meeting minimum accuracy and quality standards, 19 responding appropriately to changes in a routine work 20 setting, and dealing with normal work stress. The ALJ gave 21 little weight to this opinion since it was not supported by 22 the majority of the record, including Dr. Portuese's own 23 treatment notes showing intact memory and concentration, and 24 the opinion was inconsistent with diagnostic tests including 25 the tests showing that plaintiff's seizure actives are short, 1 infrequent and not debilitating, and his brain MRIs were also 2 largely normal. For the same reasons, the ALJ found the 3 source statement provided by psychologist Dr. Broege should 4 be accorded very little weight. Her findings too were 5 inconsistent with the majority of the record as I've outlined 6 above. 7 Plaintiff also takes issue with the ALJ giving 8 significant weight to the opinion of non-examining Agency 9 consultant Dr. Momot-Baker, arguing that it is not consistent 10 with the record as a whole, pointing to the opinions of 11 Dr. Broege and Dr. Osika, who indicated plaintiff would have 12 difficulty with simple instructions. However, as noted 13 earlier, Dr. Osika opined that plaintiff would have only mild 14 difficulty with simple tasks and moderate difficulty with 15 complex tasks. This is consistent with Dr. Momot-Baker's 16 opinion that plaintiff would be limited to simple and some 17 detailed instructions, and that plaintiff had moderate 18 limitation in the ability to understand, remember and carry 19 out detailed instructions. Dr. Momot-Baker's opinion is also 20 consistent with the records I've already outlined indicating 21 some issues with memory and cognition that would not disrupt 22 plaintiff's ability to perform semi-skilled work, the 23 multiple examinations by his treating providers Drs. German 24 and Portuese showing plaintiff had good judgment, intact 25 memory, and that plaintiff could follow complex commands 1 without difficulty and ask and answer questions 2 appropriately. Further, relevant diagnostic tests show that 3 his brain MRIs were normal, as I've stated, and his EEGs and 4 follow-up treatment notes show his seizures treated with 5 medication were short, infrequent and not debilitating. 6 Further regarding plaintiff's argument that the ALJ 7 erred in giving significant weight to Dr. Momot-Baker's 8 opinion because Dr. Momot-Baker did not examine the 9 plaintiff, I disagree. While it is correct that 10 Dr. Momot-Baker did not personally examine the plaintiff, it 11 is well settled that the opinions of state Agency consultants 12 can be given weight if supported by medical evidence and 13 other evidence of record. The ALJ clearly stated, and the 14 record supports, that he gave weight to Dr. Momot-Baker's 15 opinion because it was supported by the record evidence as 16 I've outlined already. 17 Further supporting the weight given to 18 Dr. Momot-Baker's opinion and the opinion of Dr. Osika and 19 the overall RFC are the plaintiff's reported daily 20 activities. Plaintiff indicated he was able to follow 21 written and spoken instructions, and he was able to perform 22 some work, albeit not at the level of substantial gainful 23 activity. Plaintiff reported he was able to cook on a daily 24 basis, go shopping, drive himself and by himself, manage 25 money, and go out alone. Plaintiff reported in his function 1 report and to his providers that he was the primary care 2 giver of one of his children. He had no problems completing 3 household chores, although he needed a riding lawnmower, and 4 he could still do the hobbies of carpentry and car detailing 5 and repairs. 6 I also note that there is no requirement that the 7 ALJ accept every limitation in the opinion of a medical 8 source or a consultative examiner. Nor must the RFC 9 identically track any one of those opinions. The ALJ has the 10 responsibility of reviewing all of the evidence before him, 11 resolving inconsistencies, and making a determination 12 consistent with the evidence as a whole. Stated another way, 13 it is the ALJ's responsibility to weigh the various opinions 14 along with other evidence and determine which limitations 15 were supported by the overall evidence of record. The Court 16 cannot reweigh the evidence under the substantial evidence 17 review standard. Here, the ALJ considered all of the 18 opinions and other evidence of record when determining 19 plaintiff's overall RFC including the mental limitations. 20 I also find the ALJ did not err in considering 21 plaintiff's ability to work in some capacity during the 22 relevant time period given that it is a proper factor to 23 consider in assessing the claim. I find the RFC is supported 24 by the opinions, other medical records, and the non-medical 25 evidence since plaintiff is limited to semi-skilled tasks, 1 may only have frequent interaction with the public, and he 2 can tolerate occasional changes to a routine work setting. 3 I also find all of the treatment briefly outlined 4 above was thoroughly reviewed by the ALJ and the records 5 provide clear and substantial evidence to support the RFC 6 determination such that meaningful review is possible. In 7 Cichocki versus Astrue,

, the Second Circuit 8 stated that only where the reviewing court is unable to 9 fathom the ALJ's rationale in relation to the evidence in the 10 record would remand be appropriate for further findings or 11 clearer explanation for the decision. As I stated, I find 12 that the ALJ's analysis regarding plaintiff's functional 13 limitations and restrictions afford an adequate basis for 14 meaningful judicial review, applies the proper standards, and 15 is supported by substantial evidence such that additional 16 analysis would be unnecessary or superfluous. 17 All in all, I find that the ALJ properly weighed 18 the opinions of record for the relevant period, gave good 19 reasons for the weight given to the opinions, and the ALJ 20 considered all of the medical evidence showing mostly limited 21 findings on the mental examinations. The ALJ also properly 22 considered plaintiff's own reported activities per his 23 testimony, his function report, and as he reported to his 24 providers. All of this supports the ALJ's determination of 25 the plaintiff's RFC. In short, I find the ALJ properly 1 explained the reasons for the RFC. And in light of the 2 foregoing and considering the entire record, I find the ALJ 3 applied the appropriate legal standards of review in 4 determining plaintiff's RFC and the RFC is supported by 5 substantial evidence. 6 Lastly, I find plaintiff's contention regarding the 7 Appointments Clause of the United States Constitution to be 8 without merit. Here, plaintiff essentially argues that the 9 ALJ did not exercise lawful authority in denying his claim 10 because the ALJ was an inferior officer who was not properly 11 appointed pursuant to the Appointments Clause. As such, 12 plaintiff argues this case must be remanded to a different 13 ALJ who has been constitutionally appointed. The defendant 14 counters that plaintiff forfeited his Appointments Clause 15 claim because he failed to assert this challenge during the 16 administrative proceedings. 17 The Court is aware that courts in this circuit and 18 other Circuit Courts differ on this issue. For example, the 19 Third Circuit Court of Appeals has adopted plaintiff's view 20 in Cirko versus Commissioner,

. The 21 Eighth Circuit, in Davis versus Saul, a recent opinion at 22

, the Court there recently ruled that 23 constitutional claims must be presented in Agency proceedings 24 as argued by the Commissioner here. I have considered all of 25 the rulings speaking to this issue and find that plaintiff 1 was required to raise the Appointments Clause issue at the 2 Agency level prior to raising it in federal court. I agree 3 with the arguments of the Commissioner as set forth in his 4 brief, and I also fully adopt the reasoning of my colleague, 5 Magistrate Judge Baxter, as set forth in his recent decision 6 of Danielle R. versus Commissioner,

. Also, 7 even if I were to credit the plaintiff's argument that he 8 could not have raised this challenge at the Agency level 9 because his deadline to submit evidence to the Appeals 10 Council expired one month before the case of Lucia versus 11 SEC,

, on which he relies, was decided, the 12 argument still fails because the Lucia case was, however, 13 decided before the Appeals Council's denial of review in this 14 case. 15 For these reasons, I conclude that this is not one 16 of the rare cases as described in Freytag versus Internal 17 Revenue,

, where a court should excuse 18 plaintiff's failure to raise an Appointments Clause claim 19 during the administrative process. Accordingly, plaintiff is 20 not entitled to remand based upon an alleged violation of the 21 Appointments Clause. 22 So, I grant defendant's motion for judgment on the 23 pleadings and will enter a judgment dismissing plaintiff's 24 complaint in this action. A copy of the transcript of my 25 decision will be attached to the order should any appeal be Decision - 7/16/2020 - 19-cv-355 15

1 taken from my determination. 2 3 * * * 4 5 CERTIFICATION 6 7 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 8 Realtime Court Reporter, in and for the United States 9 District Court for the Northern District of New York, 10 do hereby certify that pursuant to Section 753, Title 28, 11 United States Code, that the foregoing is a true and correct 12 transcript of the stenographically reported proceedings held 13 in the above-entitled matter and that the transcript page 14 format is in conformance with the regulations of the 15 Judicial Conference of the United States. 16 17 18 19 Leen McDonough 20 EITLEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 21 22 23 24 25