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

NIKITA N. C.,

Plaintiff, v. Civil Action No. 5:20-CV-0225 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

__________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OLINSKY LAW GROUP HOWARD D. OLINSKY, ESQ 250 South Clinton Street MELISSA DELGEURICO, ESQ. Suite 210 Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. HUGH RAPPAPORT, ESQ. J.F.K. Federal Building Room 625 15 New Sudbury Street Boston, MA 02203

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

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on April 15, 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: April 20, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK *************************************************** NIKITA N. COSBY, * Plaintiff, * -v- 20-cv-225 * COMMISSIONER OF SOCIAL SECURITY, * Defendant. * *************************************************** TRANSCRIPT OF TELECONFERENCE BEFORE THE HONORABLE DAVID E. PEEBLES April 15, 2021 FOR THE PLAINTIFF: MELISSA A. DELGUERCIO, ESQ. 250 South Clinton Street Syracuse, New York 13202 FOR THE DEFENDANT: HUGH RAPPAPORT, ESQ. 15 New Sudbury Street Boston, Massachusetts 02203 COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 THE COURT: Plaintiff has commenced this 2 proceeding pursuant to 42 United States Code, 3 Sections 405(g) and 1383(c)(3) to challenge an adverse 4 determination by the Commissioner of Social Security. 5 The background is as follows: 6 Plaintiff was born in October of 1976 and is 7 currently 44 years of age. She was 37-years-old at the 8 time of the amended onset date attributed to her 9 disability, that being May 22, 2014. 10 Plaintiff is 5 foot, 11 inches in height and 11 has weighed at various times between 234 and 270 pounds. 12 The record is somewhat ambiguous as to 13 plaintiff's living conditions. At one point she was 14 living with a girlfriend in an apartment, and at another 15 point it was reported that she was homeless. 16 Plaintiff has an 11th grade education and was 17 in special education classes while in school. She also 18 has some sort of certifications in hotel management and 19 cooking. Plaintiff is left-handed and has a driver's 20 license. 21 I have to say before I go further that the 22 record in this case was extremely poorly developed, but 23 I note that plaintiff was represented, and without 24 diminishing the administrative law judge's obligation to 25 flesh out the record, ultimately, it is plaintiff's Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 burden to demonstrate her conditions and the resulting 2 limitations associated with those conditions. 3 Plaintiff stopped working in January of 2011. 4 Her prior work consists of and includes as a clothing 5 sorter, a janitor, a groundskeeper, a babysitter, and in 6 some position in a blacktop/landscape operation where 7 she did flagging, among other things. 8 Physically, plaintiff suffers from Type 2 9 diabetes and resulting neuropathy, as well as asthma, 10 for which she uses an inhaler and nebulizer, a lumbar 11 back issue with reported pain extending into her legs, 12 and pain and carpal tunnel syndrome possibly in her 13 hands. 14 Plaintiff underwent stomach surgery in 2013 15 and groin surgery in 2005. Plaintiff reportedly was 16 involved in a motor vehicle accident on July 6th, 2013. 17 She has had both magnetic resonance imaging, or MRI, 18 testing of her back and x-rays. 19 On July 28th, 2013, MRI testing revealed a 20 small posterior central disc protrusion at L4-L5 and 21 L5-S1, not causing significant central spinal canal 22 stenosis; that appears at page 529 of the administrative 23 transcript. 24 On July 21, 2016, MRI testing reflected 25 minimal degenerative disc disease L4 -- L3-L4, very Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 small midline posterior L3-L4 disc protrusion extending 2 only 2 millimeters into the spinal canal, and mild 3 degenerative disc disease L5-S1, mild blood-based 4 posterior L5-S1 disc protrusion extending only 3 5 millimeters into the spinal canal. The results of that 6 testing appear at 1028 and 1029 of the administrative 7 transcript. 8 X-rays taken on July 19, 2016, revealed mild 9 degenerative changes L5-S1 and mild bilateral 10 degenerative changes SI joints. That report appears at 11 1121 of the administrative transcript. 12 Mentally, plaintiff has suffered from reported 13 anxiety and depression. For mental condition, she has 14 undergone counseling with Psychiatric Nurse Practitioner 15 Ann Sweet. She has not undergone any hospitalization. 16 Plaintiff's primary care provider was or is Dr. Joseph 17 Merola. She also has treated at the Joslin Center 18 including with Dr. Barbara Mols-Kowalczewski, as well as 19 Upstate, where she has seen Dr. Burk Jubelt and a 20 resident, Dr. Sanam Anwer. She has also treated with 21 St. Joseph's Family Medical with P.A. Joseph Morabito 22 and Syracuse Orthopedics, or SOS, with Dr. Richard 23 DiStefano. 24 Plaintiff has been prescribed various 25 medications, including Lyrica, oxycodone, gabapentin, Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 Cymbalta, Neurontin, Prazosin, Trazodone, Buspirone, and 2 Wellbutrin. 3 Plaintiff's activities of daily living have 4 included dressing; bathing; grooming; cooking, which she 5 likes to do and does fairly often; housework, some; 6 shopping, some; no dishes; no laundry. She takes public 7 transportation. She drives, she reads, plays sports, 8 gets along well with people, went on a Bahamas cruise in 9 February of 2016; attends family cookouts, likes to 10 fish, and wants to open a restaurant and exercises. 11 In 2013, plaintiff was apparently arrested for 12 driving while intoxicated and underwent subsequent drug 13 treatment as reflected at 12-F and 16-F. She is also a 14 regular user of marijuana, and by that I mean the record 15 reflects she uses marijuana as often as two to three 16 times daily. 17 Procedurally, plaintiff applied for Title 16, 18 Supplemental Security Income payments on May 22nd, 2014, 19 alleging an onset date of December 31, 2010. That was 20 later amended to May 22, 2013. She claimed disability 21 based on diabetes, asthma, a learning disability, drug 22 and alcohol problems, and back injury. I note that that 23 followed a prior adverse administrative law judge 24 decision on March 22, 2013. 25 A hearing was conducted by Administrative Law Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 Judge Bruce S. Fein on July 28, 2016, to address 2 plaintiff's request for SSI benefits. ALJ Fein issued 3 an adverse decision on September 19th, 2016. The matter 4 was subsequently remanded by the Social Security 5 Administration Appeals Council on January 17th, 2018, 6 with a directive that vocational expert testimony be 7 elicited to determine the extent of any erosion of the 8 job base on which the medical-vocational guidelines are 9 predicated, and also to adequately consider plaintiff's 10 obesity. 11 A second hearing was conducted on 12 November 6th, 2018. ALJ Fein issued another decision on 13 January 24, 2019; also unfavorable to the plaintiff. 14 The Social Security Administration Appeals 15 Council denied review of that decision on December 30, 16 2019, making the administrative law judge's opinion the 17 final determination of the agency. 18 This action was commenced on February 28th, 19 2020, and is timely. 20 In his decision, ALJ Fein applied the familiar 21 five-step sequential test for determining disability. 22 He concluded at step one that plaintiff had not engaged 23 in substantial gainful activities since May 22, 2014, 24 although he noted that there had -- there was some work 25 that was performed by the plaintiff after that date. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 At step two, ALJ Fein concluded the plaintiff 2 does suffer from impairments that are severe in that 3 they provide more than a minimal limitation on 4 plaintiff's ability to perform basic work functions, 5 including low back pain with bilateral sciatica, 6 neuropathy, post-traumatic stress disorder, depressive 7 disorder, and anxiety disorder. 8 At step three, the administrative law judge 9 concluded the plaintiff's conditions do not meet or 10 medically equal any of the listed presumptively 11 disabling conditions set forth in the commissioner's 12 regulations, specifically considering listings 1.04, 13 11.13, 12.04, 12.06, 12.15. 14 The administrative law judge next concluded 15 that notwithstanding her conditions, plaintiff 16 maintained her residual functional capacity, or RFC, to 17 perform light work subject to both physical and mental 18 limitations. 19 Physically, he found the plaintiff cannot 20 crawl or climb ladders, ropes, or scaffolds and can only 21 occasionally climb ramps and stairs, balance, stoop, 22 kneel and crouch. 23 He also found that claimant should also avoid 24 concentrated exposure to operational control of moving 25 machinery, unprotected heights, and hazardous machinery. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 Mentally, he found that the claimant is 2 limited to performing simple routine repetitive tasks. 3 She also requires a low-stress job, which is defined as 4 involving only occasional decision making, occasional 5 use of judgment, and occasional changes in work setting. 6 At step four, Administrative Law Judge Fein 7 concluded that plaintiff did not have any past relevant 8 work to examine and proceeded to step five. 9 At step five, he first noted that if plaintiff 10 were capable of performing a full range of light work, a 11 finding of no disability would be required by 12 consideration of the medical-vocational guidelines or 13 grids set forth in the commissioner's regulations, 14 specifically citing Grid Rule 202.17. 15 Considering the testimony of the vocational 16 expert and the issue of erosion based on exertional and 17 nonexertional limitations, ALJ Fein concluded the 18 plaintiff is capable of performing in positions that are 19 available in the national workforce, and representative 20 examples included laundry folder, label coder and 21 marker, and concluded plaintiff, therefore, was not 22 disabled at relevant times and ineligible for the 23 benefits sought. 24 As the commissioner rightfully argues, 25 the test that the Court must apply in this case is Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 extremely deferential. I must determine whether correct 2 legal principles were applied and the resulting 3 determination is supported by substantial evidence, 4 which is defined as such relevant evidence as a 5 reasonable mind would consider adequate to support a 6 conclusion. 7 As the Second Circuit has noted in Brault 8 versus Social Security Administration Commissioner, 9

, the standard is extremely rigid. It 10 is even more deferential than the clearly erroneous 11 standard that orders are familiar with. 12 The Second Circuit additionally noted in 13 Brault that the standard means that once an ALJ finds a 14 fact, that fact can be rejected only if a reasonable 15 fact finder would have to conclude otherwise. 16 The plaintiff in this case raises two basic 17 contentions. The first concerns the physical components 18 of the residual functional capacity and specifically 19 centers upon the amount of weight afforded to 20 Dr. Anwer's and Dr. Jubelt's medical source statement. 21 The second addresses the mental components of the RFC 22 and again focuses on improper weight given to the 23 opinion of Nurse Practitioner Sweet, signed off on by 24 Dr. Walia and also supported, in plaintiff's view, by 25 Dr. Caldwell and Dr. Kahn. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 Before I address those contentions, I noted 2 one additional error. The hypothetical that was posed 3 to the vocational expert did not exactly mirror the 4 residual functional capacity finding in that it did not 5 include the limitation of only occasional climb ramps or 6 stairs, balance, stoop, kneel and crouch. 7 And so, I examined that issue, although it may 8 well have been an issue that is waived by the plaintiff 9 since it is not raised. It turns out that when you 10 review the Dictionary of Occupational Titles, in two of 11 the three exemplary positions cited, there's no 12 climbing, balancing, stooping, kneeling, and crouching 13 required and that would be true of the folder, which is 14 a Dictionary of Occupational Titles 369.687-018, 15 appearing at Westlaw -- 1991 Westlaw 673072. It's also 16 true of the position of marker, that's Dictionary of 17 Occupational Titles 209.587-034 appearing at 1991 18 Westlaw 671802, and the third one, label coder, which 19 appears at Dictionary of Occupational Title 920.587-014, 20 reported at 1991 Westlaw 687915, there is occasional 21 climbing required, and occasional stooping required, but 22 then again, that is consistent with the residual 23 functional capacity finding. 24 So, I find that there was no error or, at 25 best, it is harmless error. Turning to the physical Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 component of the residual functional capacity, as a 2 backdrop, let me note that one of the primary functions 3 and pivotal to a consideration of a disability claim is 4 determination of residual functional capacity, which 5 represents a finding of the range of tasks that a 6 claimant is capable of performing, notwithstanding his 7 or her impairments, 20 CFR Section 40 -- in this case 8 416.945, and Tankisi versus Commissioner of Social 9 Security,

from the Second Circuit 2013. 10 An RFC determination of course is informed by 11 the consideration of all of the relevant medical and 12 other evidence. 13 The administrative law judge's RFC finding of 14 course must be supported by substantial evidence. As a 15 backdrop also, I note that under Poupore from the Second 16 Circuit, it is plaintiff's burden to establish her 17 limitations up through step four, including at the RFC 18 stage. 19 One of the issues -- key issues raised with 20 regard to the physical components of the RFC finding is 21 considerations of the medical source statement of 22 Resident Dr. Anwer, signed off on by Dr. Jubelt, dated 23 April 20, 2016. It appears at pages 641 through 644 of 24 the administrative transcript. 25 After identifying symptoms that the plaintiff Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 would experience, Dr. Anwer and Dr. Jubelt were asked to 2 opine concerning sitting, standing, and walking at 3 page 642. The result is quite ambiguous. There are two 4 columns intended for checkmarks. There are no 5 checkmarks. Instead, the doctors have circled about 6 four hours without indication of whether that is 7 cumulative of sitting, standing, walking, or whether it 8 applies to each category. 9 The opinion goes on to state that plaintiff 10 can occasionally lift 10 pounds and less than 10 pounds, 11 and also opines that plaintiff would be off task more 12 than 20 percent of the time and absent more than four 13 days per month. That opinion was discussed by the 14 administrative law judge and -- at page 31 and given 15 little weight. 16 The administrative law judge noted that 17 plaintiff had only treated with those physicians for two 18 months, that it was inconsistent with plaintiff's 19 activities of daily living and inconsistent with 20 plaintiff's hearing testimony, particularly with regard 21 to lifting. 22 I note first that these individuals are 23 properly regarded as treating sources. The opinion of 24 the treating source regarding the nature and severity of 25 an impairment is entitled to considerable deference if Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 it is supported by medically acceptable clinical and 2 laboratory diagnostic techniques and is not inconsistent 3 with other medical evidence; Veino versus Barnhart, 4

, Second Circuit 2002. 5 Treating source opinions are not controlling, 6 however, if they are contrary to other substantial 7 evidence in the record, including the opinions of other 8 medical experts. 9 Of course where there are conflicts in the 10 form of contradictory medical evidence, the resolution 11 is properly entrusted to the commissioner under Veino. 12 The administrative law judge is not giving 13 controlling weight to attributing source opinion 14 must detail what degree of weight, if any, should be 15 assigned to the opinion and consider the relevant 16 factors set out in 20 CFR Section 416.927, sometimes 17 referred to as the Burgess factors in this case, and I 18 note, of course, that this case is being decided under 19 the former regulations governing medical opinions 20 because this claim was filed prior to March of 2017. 21 In this case, Dr. Anwer's opinion comes on the 22 form of a checkbox. It's marginally useful and, as I 23 indicated, ambiguous, at least with regard to sitting, 24 standing, and walking. 25 I note that plaintiff -- the administrative Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 law judge relied on activities of daily living. In 2 this, plaintiff -- as defense counsel noted, in his 3 prior decision, ALJ Fein also relied on the same 4 activities of daily living and, despite that, in the 5 second hearing, at which plaintiff was represented, she 6 did not adduce any additional evidence regarding her 7 activities of daily living and the fact that they 8 undermine Dr. Anwer's opinions. 9 Under Estrella Berryhill

from 10 2019, Second Circuit, the Court must make a searching 11 record of -- a searching review of the record and 12 determine, considering the record as a whole, whether 13 the treating source rule was violated. In this case I 14 find that it was not. 15 The administrative law judge marshaled the 16 evidence concerning plaintiff's physical condition, 17 including at pages 28 and 29. The residual functional 18 capacity finding was supported by other medical evidence 19 in the record, including the opinion of consultative 20 examiner Dr. Kalyani Ganesh, who, after examining the 21 plaintiff, issued an opinion on July 31st, 2013, finding 22 that plaintiff did not have any gross physical 23 limitation noted; sitting, standing, walking, use of 24 upper extremities; that appears at page 637 of the 25 administrative transcript. Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 The RFC finding is also supported by the 2 findings of non-examining counsel consultative expert 3 Dr. Leong, including 23-F and 24-F of the administrative 4 transcript. 5 One limitation of course, as Dr. Ganesh noted, 6 was an environmental limitation which the administrative 7 law judge properly rejected based upon plaintiff's heavy 8 use of marijuana. 9 I note that the plaintiff does cite a case 10 that she believes supports her position, Nelson versus 11 Bowen,

from the Second Circuit 1989. It's 12 an old case, and it significantly predated the Poupore 13 and other opinions which made clear that the burden was 14 on the plaintiff and not the commissioner to prove 15 residual functional capacity, it is also 16 distinguishable. 17 The plaintiff quarrels with consideration of 18 activities of daily living. Clearly, the reported 19 activities of daily living are properly considered, 20 Alpeter versus Commissioner of Social Security, 27 21 Westlaw 4443978 from Chief Judge Glenn T. Suddaby. 22 Obviously there needs to be some consideration of the 23 relation between the administrative -- the activities of 24 daily living and the function in question. 25 But the bottom line is I'm unable to state Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 that a reasonable fact finder would have to credit the 2 medical source statement of Dr. Anwer, and so I find, 3 based on the totality of the evidence, including but not 4 limited to the opinions of Dr. Ganesh and Dr. Leong, 5 that the physical aspects of the residual functional 6 capacity finding are supported. 7 Turning to the mental condition, the 8 plaintiff, the focus would as -- 9 (Technical issues) 10 THE COURT: The focus is on the opinion of 11 Nurse Practitioner Ann Sweet, that it -- 12 (Technical issues) 13 (Discussion held off the record) 14 THE COURT: Addressing the mental residual 15 functional capacity, plaintiff's challenge focuses on an 16 opinion issued by Nurse Practitioner Ann Sweet and 17 cosigned by Dr. Katherine Walia, dated July 7th, 2016, 18 is Exhibit 9-F and appears at 696 to 698 of the 19 administrative transcript. 20 It is a checkbox form. It lists symptoms of 21 the plaintiff. It then asks to opine concerning 22 plaintiff's abilities in several areas, A through U. 23 The opinion indicates that plaintiff is unable to meet 24 competitive standards in 11 categories. The opinion is 25 discussed by Administrative Law Judge Fein at pages 30 Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 and 31 of the administrative transcript and given no 2 weight. 3 I note initially that is unclear what 4 Dr. Walia's role is. There is not any indication that 5 she has treated the plaintiff and, therefore, does not 6 qualify as a treating source. Nurse Practitioner Sweet, 7 of course, under the former regulations, is not an 8 acceptable medical source. The reasons cited will note 9 given no weight includes the inconsistency of 10 plaintiff's activities of daily living, and the fact 11 that it is based in many respects on subjective reports, 12 including the report that plaintiff feels that her 13 neuropathy is incapacitating, that appears at 697, a 14 proper consideration under Gates versus Astrue, 15 338 Fed Appx. 46, Second Circuit 2019. The opinion is 16 also equivocal and use of the term "possible" in several 17 respects, and it is based, at least in part, on the 18 interplay between plaintiff's physical symptoms and her 19 mental condition. 20 I note that the issue of Dr. Walia's 21 involvement was identified in the first hearing in this 22 matter and decision, but there was no proof offered at 23 the second hearing as to Dr. Walia's involvement. 24 The opinion is also inconsistent with the 25 evidence in question. For example, Nurse Practitioner Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 Sweet opines that plaintiff is unable to use public 2 transportation. The plaintiff admitted to Dr. Caldwell, 3 at page 631, that she is capable using of public 4 transportation. 5 The opinion is also inconsistent with the 6 opinions of Dr. Christina Caldwell, a psychiatrist who 7 examined the plaintiff and issued an opinion on July 31, 8 2014, that is consistent with the residual functional 9 capacity finding. In other words, the limitations set 10 forth at 631 and 632 of Dr. Caldwell's opinion has been 11 accommodated by the residual functional capacity. 12 Dr. Kamin, an agency expert, non-examining, 13 issued an opinion on August 12th, 2014, that's 14 Exhibit 3-A, that also supports the finding of the 15 administrative law judge, found only moderate limitation 16 in several areas and opined that -- issued a mental 17 residual functional capacity assessment; however, that 18 is not inconsistent with the residual functional 19 capacity he found. 20 There is a stress limitation set forth in 21 Dr. Caldwell's opinion, and that is addressed in the 22 residual functional capacity finding -- there's a stress 23 limitation found by Dr. Caldwell that is addressed in 24 the residual functional capacity finding Tatelman versus 25 Colvin,

from the Western District of Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225 1 New York, 2017. 2 In support of his mental RFC finding, the 3 administrative law judge cited treatment records and the 4 opinions of Dr. Caldwell. The rejection of Nurse 5 Sweet's opinion is supported by substantial evidence and 6 a finding that the mental health component of the RFC is 7 also supported by substantial evidence. 8 Turning to step five, I conclude with the 9 exception that I mentioned at the outset, that 10 the residual functional capacity finding was presented 11 to the vocational expert, and the step five 12 determination at which the commissioner bears the burden 13 of proof was supported by substantial evidence based on 14 vocational experts testimony. 15 So, in conclusion, I will grant judgment on 16 the pleadings to the defendant and order dismissal of 17 plaintiff's complaint. 18 Thank you all for excellent presentation. I'm 19 sorry that we had to deal with the conditions of the 20 telephone service. I wish you all well and stay safe. 21 (Proceeding concluded) 22 * * * * * * * * * * * 23 24 25 Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY COSBY v COMM. OF SOCIAL SECURITY - 20-cv-225

C E R T I F I C A T I O N

I, Lisa L. Tennyson, RMR, CSR, 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 excerpt of the 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. /s/ Lisa L. Tennyson Lisa L. Tennyson, RMR, RPR, FCRR

Lisa L. Tennyson, CSR, RMR, FCRR UNITED STATES DISTRICT COURT - NDNY