Rucker v. Kijakazi

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK ________________________ JESSICA R., Plaintiff, v. Civil Action No. 3:19-CV-1344 (DEP) ANDREW SAUL, Commissioner of Social Security, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN & GORTON LAW FIRM PETER A. GORTON, ESQ.

1500 East Main St. P.O. Box 89 Endicott, NY 13761-0089 FOR DEFENDANT HON. ANTOINETTE L. BACON DANIEL TARABELLI, ESQ.

Acting United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 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 (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on February 24, 2021, 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

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.

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: March 2, 2021 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x JESSICA R., Plaintiff, vs. 3:19-CV-1344 ANDREW SAUL, Commissioner of Social Security, Defendant. -------------------------------------------------------x DECISION held on February 24, 2021 before the HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 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: Let me begin by thanking both counsel for excellent presentations. I enjoyed working with you.

3 Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge an adverse determination by the Commissioner of Social Security.

7 The background is as follows. Plaintiff was born in July of 1991. She is currently 29 years of age. She was 25 years old at the time of the alleged onset -- or, the amended alleged onset date of August 1, 2016. Plaintiff stands approximately 5-foot 2-inches in height, and has weighed between 245 and 250 pounds at various points.

13 Plaintiff is single and has no children. She lives in Binghamton in an apartment with her mother. Plaintiff is right-handed. She has no driver's license.

16 Plaintiff has a high school education. She received an IEP diploma and was in special education classes where she was classified apparently as learning disabled.

19 She also attended two semesters at Broome Community College.

20 She did receive some accommodations due to her psychological conditions at the college, and ultimately stopped going or attending out of frustration. Plaintiff also participated in a Catholic Charities Work Training Program.

24 Plaintiff stopped working in August of 2015 while she was undergoing work training in a cafe. Her past work includes as a cashier in various settings, a cleaner, and an overnight stocker. The Administrative Law Judge concluded that none of those positions constituted substantial gainful activity.

5 Plaintiff physically suffers from a lower back issue, obesity, and hypertension. The hypertension appears to be medically controlled. In terms of her back, an X-ray from August 12, 2016, that appears at 390 of the Administrative Transcript, showed moderate degenerative spondylosis, meaning disc space narrowing and osteophyte formation, at L1-L2, but no compression fracture. The impression is listed as, quote, "degenerative changes." 13 The plaintiff suffers from mental impairments that have been variously described, and including as low borderline intellectual functioning. Testing at one point revealed a full scale IQ of 70. Bipolar disorder, borderline personality disorder, schizo-affective disorder, adjustment disorder with depressed mood. She has a history of cutting, suicide attempts and ideation, homicidal ideation, auditory hallucination, paranoid delusions.

21 She treats primarily with UHS Primary Care where she sees Physician Assistant Erica Hill and has since March of 2016. She has treated with Dr. Sobia Mirza, a psychiatrist, who she sees one time per month and has for roughly four years, as well as LMSW Megan Hagerbaumer, who she also sees approximately one time per month and has for four years.

3 As plaintiff's counsel pointed out, the record reveals several hospitalizations for psychiatric conditions, including October 13, 2014 to November 1, 2014, that's at 354 of the Administrative Transcript. There is reference to December 2, 2014 at 354 to 356. April 25, 2016 to April 29, 2016, she was hospitalized, that's at 336 and 635, for cutting her wrist. She had been drinking and engaged in a family argument which appears to have precipitated that hospitalization. She was hospitalized between June 28 and June 30, 2016. That's at 402 to 404, 333 to 336, and 635 of the Administrative Transcript. That was precipitated by suicidal thoughts brought on because her ex-boyfriend moved into the same apartment complex that she was living in with a new girlfriend. There were also hospitalizations in March of 2017 for suicidal thoughts. That's at 400 and 635. She was apparently sent to the hospital by her psychiatrist. She was hospitalized in April, late April to early May of 2017, that's at 398 and 638, with auditory hallucinations and persecutory delusions. Again hospitalized in January 2019 with suicidal and homicidal thoughts and depression.

23 Apparently that was precipitated by an argument with plaintiff's aunt.

25 Plaintiff has been prescribed several medications, including Citalopram, Metoprolol, Trazodone, Mirtazapine, Olanzapine, Ibuprofen, Tylenol, Remeron, Celexa, Latuda, and a muscle relaxant.

4 In terms of activities of daily living, plaintiff is able to shower, dress, shop with her mother. She does some walking. She does some laundry. She does -- I'm sorry, some cooking, not walking; I can't read my own notes. Some laundry. She cleans, sweeps, mops, vacuums, takes out the garbage, watches television, listens to music. She smokes approximately two cigarettes per day.

11 Procedurally, plaintiff applied for Title II and Title XVI benefits on June 14, 2016, alleging an onset date of January 1, 2013. The onset date was later amended on advice of counsel or with advice of counsel to August 1, 2016, which took out of play the Title II application, leaving only the Supplemental Security Income, or SSI, application.

18 A hearing was conducted on October 10, 2018, by Administrative Law Judge Elizabeth Koennecke. A supplemental hearing with a vocational expert was conducted on March 11, 2019. ALJ Koennecke issued a decision on March 19, 2019, that was adverse to the plaintiff. That became a final determination of the Agency on September 17, 2019, when the Social Security Administration Appeals Council denied plaintiff's request for review.

1 This action was commenced on October 31, 2019. The Commissioner does not argue that it is untimely, and it appears to the Court that it is, in fact, timely.

4 In her decision, ALJ Koennecke applied the familiar five-step sequential test for determining disability.

6 She found that plaintiff had not engaged in substantial gainful activity since August 1, 2016.

8 At step two, ALJ Koennecke concluded that plaintiff does suffer from mental impairments that have been variously characterized, and she does not specify precisely what impairments she is considering, although she does state that plaintiff claims disability due to depression, learning disability, schizophrenia, personality disorder, and bipolar disorder in terms of the mental impairments.

15 At step three, ALJ Koennecke concluded that plaintiff's conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 12.03, 12.04, 12.06 and 12.08, all of which address mental impairments or psychological impairments. The conclusion was that the B criteria and the C criteria of those regulations were not met. She also considered listing 12.04 and found a low IQ, but no diminishment or deficits in adaptive functioning.

25 At the next stage, ALJ Koennecke concluded that plaintiff is capable of performing a full range of work at all exertional levels, with the following limitations addressing her mental or psychological impairments. The claimant has the very basic capacity to read, spell, or perform mathematical calculations. The claimant retains the ability to: Understand and follow simple instructions and directions; perform simple tasks independently; maintain attention and concentration for simple tasks; regularly attend to a routine and maintain a schedule; handle simple, repetitive work-related stress in that she can make occasional decisions directly related to the performance of simple tasks in a position with consistent job duties that does not require the claimant to supervise or manage the work of others; should avoid work requiring more complex interaction or joint effort to achieve work goals, for example, work performed alone except for normal supervision; can have no contact with the public.

18 At step four, Administrative Law Judge Koennecke concluded that plaintiff does not have any past relevant work to consider, and thus proceeded to step five.

21 With the assistance of testimony from a vocational expert, who was given a hypothetical that parallelled the residual functional capacity finding, the Administrative Law Judge concluded that plaintiff is capable of performing available work in the national economy, and cited representative occupations of hand packager, laundry worker, and industrial cleaner, and thus concluded that plaintiff was not disabled at the relevant times.

4 The standard of review, as the Commissioner has argued, in this case is extremely deferential. My job is to determine whether correct legal principles were applied and that the resulting determination is supported by substantial evidence. Substantial evidence, of course, is defined as such relevant evidence as a reasonable mind would consider sufficient to support a conclusion or finding. The Second Circuit Court of Appeals in Brault versus Social Security Administration Commissioner, 683 F.3d 443, noted that the test is extremely stringent, more so than the clearly erroneous standard that lawyers are familiar with. The Court noted in Brault that under this standard once an ALJ finds facts, those facts can be rejected only if a reasonable fact-finder would have to conclude otherwise.

18 The plaintiff in this case raises two basic contentions, both of which affect the step five determination, because if accepted, the errors would result in a finding that the hypothetical posed to the vocational expert was flawed. The first relates to the failure to find a physical impairment at step two focusing on plaintiff's lumbar back condition. The second attacks the residual functional capacity finding and the weighing of medical opinions in the record.

2 Turning first to the step two determination, the focus is on Dr. Jenouri's report, which appears at 386 to 389 of the Administrative Transcript, as well as the X-ray taken on August 12, 2016. That is reported at page 390.

6 Undoubtedly and undeniably the second step of the sequential analysis is a modest step and a modest hurdle to surpass.

8 The governing regulation provides that an impairment or combination of impairments is not severe if it does not significantly limit claimant's physical or mental ability to do basic work activities; 20 CFR Section 404.1521(a), and there is a corresponding regulation in the Section 416 series.

14 The Second Circuit requirement is de minimis and intended only to screen out the truly weakest of cases; Dixon versus Shalala, 54 F.3d 1019 (2nd Cir. 1995). However, the mere presence of a disease or impairment, or establishing that a person has been diagnosed or treated for disease or impairment, is not by itself sufficient to establish a condition as severe; Coleman versus Shalala, 895 F.Supp. 50 21 (S.D.N.Y. 1995).

22 The Administrative Law Judge rejected the plaintiff's back injury as severe at page 18 and discussed why. The first question is, assuming that there is error at step two, would the error be harmless. Dr. Jenouri in his opinion at page 389 found a moderate restriction in walking, standing, sitting long periods, bending, stair climbing, lifting, and carrying, which, of course, could have potentially affect the residual functional capacity, but that was given limited weight. There is no exertional limitation in the RFC.

7 As plaintiff argues, the three jobs specified in the Administrative Law Judge's determination are all in the medium exertional range. Medium work involves lifting no more than 50 pounds at a time with frequent lifting or carrying of objects weighing up to 25 pounds. The regulation goes on to state, "If someone can do medium work, we determine that he or she can also do sedentary and light work." 20 CFR Section 404.1567(c).

15 The plaintiff relies on Giddings for the proposition that -- Giddings versus Astrue, 333 F.App'x 649, (2d Cir. 2009), for the proposition that Dr. Jenouri's opinion, which stands uncontradicted by any other medical opinion that would support the RFC, cannot be overridden unless there is overwhelmingly compelling reasoning given. I note that the Commissioner in this and several other cases has asked the Court to declare that the Second Circuit's overwhelmingly compelling reasoning standard has been abrogated, but I respectfully decline that invitation and note that as recently as 2020 the Second Circuit was still using that standard.

2 The defendant relies on Pellam; Pellam versus Astrue, 508 F.App'x 87 (2d Cir. 2013). That case is somewhat distinguishable, though, because while the consultative examiner's opinion was rejected in that case, the RFC finding was actually consistent with the opinion.

7 As I indicated, the Administrative Law Judge at 18 and 19 gave Dr. Jenouri's opinion limited weight. The reasoning cited includes the fact that there was no compression fracture revealed in the X-ray, there was extremely conservative treatment demonstrated in the record.

12 Plaintiff treated her back condition with over-the-counter medications, including Tylenol, Ibuprofen, and muscle relaxers. She in many instances described her pain as zero on a scale of zero to ten, including at 435, 440, 445, 456, 467, and 624 of the Administrative Transcript. She also described at page 370 her condition, back condition is stable without radiation. She also apparently has engaged walking and exercises.

20 So in terms of the step two argument, I find that the reasoning cited by Administrative Law Judge Koennecke meets the overwhelmingly compelling standard for discounting Dr. Jenouri's opinion.

24 Turning to the second argument, the argument first surrounds the residual functional capacity finding of the Administrative Law Judge. Claimant's RFC represents the finding of the range of tasks she is capable of performing notwithstanding the impairments at issue; 20 CFR Section 416.945(a). An RFC determination is informed by consideration of all of the relevant medical and other evidence. The ascertaining of an RFC details both assessment of exertional capabilities as well as non-exertional limitations or impairments. And, of course, any RFC determination must be supported by substantial evidence.

10 When it comes to weighing medical opinions, there is also an overarching consideration that the weighing of conflicting opinions in the first instance is a matter entrusted to an Administrative Law Judge, under Veino versus Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). The mental and cognitive issues are what is front and center in this case.

16 The weight to be given to medical opinions under the former regulations governing applications filed prior to March of 2017 is addressed at 20 CFR Section 416.927(c).

19 The first opinion at issue is by Dr. Sobia Mirza from September 5, 2018. That appears at 595 and 596 of the Administrative Transcript. The opinion reflects a marked limitation in maintaining regular attendance without interruptions from psychological bases symptoms. I think that probably should be psychological based symptoms. Marked is defined as, "There is a serious limitation in this area.

1 There is a substantial loss in the ability to effectively function, the loss would be greater than 33 percent." There is also medium limitation in Dr. Mirza's report in the fields of maintaining attention and concentration, and ability to interact appropriately with the general public.

6 The opinion of Dr. Mirza was addressed at page 21 of the Administrative Transcript and it was given limited weight. The reasons cited include that it is based solely on plaintiff's reports. There is no indication that plaintiff was frequently absent from counseling, and therefore in the Administrative Law Judge's view, that would translate into a finding that she would also not likely be absent from work.

13 She also pointed out that Dr. Mirza was not able to fully assess mental functioning, according to her own medical source statement, and that it was not supported by objective evidence, including the many denials by plaintiff of psychological symptoms, psychiatric symptoms, and plaintiff's statements that her symptoms were controlled with medications.

20 The factors to be considered under the former regulations, specifically Section 416.927, are well-known.

22 They are the so-called Burgess factors in the Second Circuit.

23 The Second Circuit has noted, however, in Estrella versus Berryhill, 925 F.3d 90, from May of 2019, that the failure to consider explicitly the Burgess factors is not necessarily fatal if a searching review of the record assures that the treating physician rule is not violated.

3 Of course, as plaintiff argues, Dr. Mirza appears to qualify as a treating source, and ordinarily the opinion of a treating source or treating physician or acceptable medical source under the former regulations regarding the nature and severity of an impairment is entitled to considerable deference if it is supported by medically acceptable clinical and laboratory diagnostic techniques and is not inconsistent with other substantial evidence. Such opinions are not, however, controlling if they're contrary to other substantial evidence in the record, including the opinions of other medical experts.

14 And, of course, as I previously noted, where there are conflicts, the resolution is properly entrusted under Veino to the Commissioner. If controlling weight is not given to a treating source opinion, the Burgess factors must be addressed and there must be an indication of what weight, if any, is given to a medical source opinion.

20 In this case the form is a check-box form with no explanation provided. I do note that defendant argues that the reliance solely on the subjective complaints of a plaintiff is not a proper basis to reject those opinions.

24 Those cases that are cited are Roma versus Astrue, 468 25 F.App'x 16, and Dailey versus Commissioner of Social Security, 2016 WL 922261 (N.D.N.Y February 2016).

2 I might agree with that when it comes to a physical impairment, but in terms of a mental impairment, it's fairly clear that plaintiff's statements and the observations of medical professionals are important to consider as plaintiff has argued. Flynn versus Commissioner of Social Security Administration, 729 F.App'x 119 (2018) supports that conclusion, as well as Stacey versus Commissioner of Social Security Administration, 799 F.App'x 7 (2020).

10 So I reject this part of the Commissioner's argument. However, I do find that the reasoning of the Administrative Law Judge for giving limited weight to Dr. Mirza's opinion is explained sufficiently when you read the decision as a whole, which goes through considerably the treatment received. I find the reasoning is well set out and a searching review of the record convinces the Court that the treating source rule is not violated in connection with Dr. Mirza's opinions.

19 The next opinion cited by the plaintiff is from Counselor Hagerbaumer, and that was given on August 21, 2018.

21 It appears at 405 to 406 of the Administrative Transcript.

22 It is extremely unclear because on both pages the counselor has drawn a line through the check-box areas and written, quote, "unable to assess per clinic policy," but then she goes ahead and finds extreme limitations in certain areas, including accepting instructions and responding appropriately to criticism from supervisors, getting along with co-workers, ability to respond appropriately to ordinary stressors in a work setting with simple tasks.

5 The counselor also notes sporadic suicidal ideation and history of auditory hallucinations, but states that the main issue is her inability to cope with her reactions caused by external stressors. She also has a learning disability which causes limitations in her daily functioning. To some degree, as the Commissioner has noted, these limitations are accommodated in the residual functional capacity finding. I note that under the former regulations, the counselor is not an acceptable medical source and her opinions are, therefore, not subject to the treating source rule.

15 I agree that there seems to be a disparity between the statement that she cannot assess and the finding that she did, in fact, assess. But as I said, the concerns appear to be the effect of stressors and her learning disability, and as I said, those are accommodated in the residual functional capacity. She is also limited in her interaction with others, including the public and her supervisor, and those are accommodated as well in the residual functional capacity finding. So I find no error in consideration of this report.

24 The next report considering plaintiff's psychiatric conditions is the report of consultative examiner, Dr. Sara Long, a psychologist, and it appears at 392 to 396 of the Administrative Transcript, and the results from a consultative examination on August 16, 2016. The medical source statement finds, "Mild to moderate limitations regarding following and understanding simple directions and performing simple tasks. She was able to maintain attention and concentration. She appears able to maintain a regular schedule. She is able to learn some new tasks. Regarding complex tasks and making appropriate decisions, there appear to be marked limitations. It is not clear that she is relating adequately to others. Her psychiatric symptoms might cause problems in this area. She presents with low stress management." It goes on to say that, "The results of the present evaluation appear to be consistent with psychiatric history of substance abuse problems which appear to interfere with her ability to function on a regular basis." 18 The report of a consultative examiner such as Dr. Long is entitled to weight and can provide substantial evidence for a determination. The Administrative Law Judge in this case afforded substantial weight, or significant weight, I should say, to Dr. Long's opinions at pages 20 and 21 and also again discussed at page 22. The residual functional capacity finding addressed many of the limitations identified by Dr. Long, including judgment and relating to others, and decision-making. As the Commissioner points out, unskilled work requires little to no judgment; 20 CFR Section 416.968(a). The residual functional capacity finding once again accounted for stress and the limitation on the interaction.

6 So I find no error in the consideration of Dr. Long's opinion, and I find that Dr. Long's opinion does provide substantial weight to support the resulting determination of the Commissioner.

10 The next decision considered or opinion considered is that of Dr. S. Juriga, a psychologist. That appears at Exhibit 3A. He is a non-examining state agency consultant.

13 His opinion was rendered in September of 2016.

14 He finds moderate limitation in several areas, including ability to understand and remember detailed instructions; the ability to carry out detailed instructions; the ability to maintain attention and concentration for extended periods; the ability to perform activities within a schedule, maintain regular attendance, and be punctual within customary tolerances; the ability to sustain an ordinary routine without special supervision; the ability to perform and to complete a normal workday and workweek without interruptions; the ability to accept instructions and respond appropriately to criticism from supervisors; and the ability to get along with co-workers or peers without distracting them or exhibiting behavioral extremes.

2 The summary of mental residual functional capacity finding, which is what controls, appears 104 and 105 of the opinion, and the summary is retains the ability to perform entry level work, which, as the Commissioner has argued, equates to simple unskilled work. It is true that there is no explanation given in certain portions of the worksheet, but the residual functional capacity is what controls once again, and it's summary and conclusions support the residual functional capacity.

11 Many of the moderate limitations are also accounted for in the residual functional capacity. Granted, I would like to see a more fulsome discussion in the residual functional capacity finding, especially without explanation or finding of certain of the moderately limited categories set forth in the work sheet. But I find that it does adequately address the residual functional capacity and support the ability to perform unskilled entry level work, which is the same; Tollison versus Colvin, 2013 WL 3367101, from the Middle District of Tennessee, July 5, 2013, and that's addressed at note 8. I find that the residual functional capacity does pass muster. Carver versus Colvin, 600 F.App'x (10th Cir. 2015). It is well-accepted that a non-examining consultative examiner's report can constitute substantial evidence and overlie even a treating source if it is properly supported. Netter versus Astrue, 272 F.App'x 54 2 (2d Cir. 2008).

3 As I indicated, it's well-accepted that moderate limitations are not inconsistent with the ability to perform unskilled work. Richard H., 2020 WL 467734, from the Northern District of New York, January 29, 2020. And in that case the proposition is said to be supported by Zabala v. Astrue, 595 F.3d 402, 410 (2d Cir. 2010). Plaintiff relies on the Program Operations Manual Systems, or POMS, to argue that the worksheet is not sufficiently detailed in this case, and, of course, the POMS are not binding either on the Commissioner or the Court. One focus of the plaintiff is the inability of her to apply for and be hired for a job. As the Commissioner's argued, that is not dispositive; 20 CFR 416.966.

16 I do note that the ALJ did not rely solely on Dr. Juriga for her residual functional capacity finding. She considered Dr. Long's opinion, as well as the entire record, which is generally supported by treatment notes discussed at length at pages 22 and 23 of the Administrative Transcript.

21 It is true that Dr. Juriga's opinions come from 2016 and predate some of the psychological treatment and hospitalizations, but when you consider the entire record, it does not appear that there was a significant decline, and, in fact, consideration of later treatment notes show some improvement.

2 The last opinion discussed by the plaintiff is from Dr. Krantweiss, Dr. Adam Krantweiss, from November 18, 2017.

4 It appears at pages 598 to 602 of the Administrative Transcript, and it addresses the plaintiff's level of intellectual functioning, academic achievement, and adaptive behavior. There are several findings. One finding is it is expected that she would not succeed across many work settings, she cannot technically be classified as intellectually disabled, and it indicated that she should be limited to a job requiring very basic capacity to read, spell words, or perform mathematical calculations.

13 The opinion was discussed at page 21 of the Administrative Transcript by the ALJ and given limited weight. It was noted that Dr. Krantweiss admitted that his findings were speculative, but it also showed that plaintiff has a basic ability to perform unskilled work, and the limitations, the intellectual limitations that were cited are accounted for in the residual functional capacity finding.

20 Once again, the act of finding of work is not relevant. 20 CFR Section 416.966, and Morrow v. Astrue, 2010 WL 3259988, from the Northern District of New York, July 30, 2010, that's addressed at footnote 5.

24 So I don't find any error in the consideration and weighing of the various medical opinions in this case, including those of treating source Dr. Mirza. The step five finding of the Commissioner is supported by substantial evidence. I find that the Commissioner did carry his burden at that step by relying on the testimony of a vocational expert who was posed a hypothetical that parallelled the residual functional capacity finding, which I do find is supported by substantial evidence.

8 I agree with the Commissioner that the Court is simply unable to say that in this case no reasonable fact-finder could conclude as the Administrative Law Judge did; or put another way, a reasonable fact-finder would have to conclude that plaintiff is incapable of performing the work identified by the vocational expert.

14 So I will grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint.

16 Thank you both. Please stay safe.

17 * * * 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