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

ANA C.-M.,

Plaintiff, v. Civil Action No. 3:20-CV-0296 (DEP) KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACKMAN GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89 1500 East Main St. Endicott, NY 13761-0089

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MOLLY CARTER, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff's complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See

(g). 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(3)(c), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on

July 14, 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

2 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. 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 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: July 23, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x ANA C.-M.,

Plaintiff,

vs. 3:20-CV-296

KILOLO KIJAKAZI, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Digitally-Recorded Telephone Conference on July 14, 2021, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: LACHMAN GORTON LAW FIRM Attorneys at Law P.O. Box 89 1500 East Main Street Endicott, New York 13761-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel JFK Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: MOLLY CARTER, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by 2 telephone, 2:16 p.m.) 3 THE COURT: All right. Let me begin by thanking 4 both of you for excellent presentations, you presented me 5 with quite an interesting complex case with a wealth of 6 medical and expert opinion evidence contained in the 7 administrative transcript. 8 I have before me a challenge to the Commissioner's 9 determination finding that plaintiff was not disabled at the 10 relevant times and therefore ineligible for the benefits 11 which she sought. The challenge is brought pursuant to 42

(g) and 1383(c)(3). 13 The background is as follows: Plaintiff was born 14 in June of 1966 and is currently 55 years of age. She stands 15 5 foot 4 inches in height and has at various times weighed 16 between 166 and 199 pounds. Plaintiff is divorced. She has 17 children who live in Puerto Rico with their father. The 18 plaintiff moved from Puerto Rico approximately three years 19 ago and has lived in New Jersey and more recently in 20 Binghamton or the Binghamton area in various apartment 21 settings. At points she was living alone, at other times she 22 was living with a granddaughter. Plaintiff has a GED and 23 while in school in Puerto Rico attended regular classes. She 24 also has a certification in the area of phlebotomy. 25 Plaintiff is right-handed. She has, is equivocal as to 1 whether she has a driver's license, at one point it was 2 suspended. Plaintiff stopped working sometime in 2011. Her 3 past positions have included as a retail clerk, a private 4 security guard, a child care assistant, a bus aide, a 5 laborer, an airline or airplane cleaner, and self-employed as 6 a hair stylist. Beginning in October of 2019, plaintiff 7 began being paid approximately 18 to 39 hours per week to 8 care for her mother and that position included various other 9 tasks including cleaning house. 10 Physically, plaintiff suffers from degenerative 11 disk disease of the lumbar spine, a right knee meniscal tear, 12 status post surgery repair which occurred in December of 13 2016, asthma, a bilateral foot disorder, described as plantar 14 fascial fibromatosis, an obstructive sleep apnea condition, 15 headaches, and peripheral neuropathy of the lower 16 extremities, and diabetes. She has also had a cochlear 17 hearing transplant surgery on her left ear in June of 2009 18 and her right ear in June of 2010. She's had multiple foot 19 surgeries, the latest of which was 2017, she underwent a 20 laminectal discectomy of the L3-L4 region in September of 21 2015, as I indicated, right knee surgery in December of 2016. 22 She reports having been struck as a pedestrian by a car in 23 2003, leading to some of the physical conditions. She was 24 also attacked by dogs at one point. 25 Mentally plaintiff suffers from depression, bipolar 1 disorder, anxiety, post-traumatic stress disorder, and major 2 depressive disorder. One of the causes for her mental health 3 condition was the murder of her son in June of 2012. She has 4 undergone no psychiatric hospitalization. There is some 5 evidence that at some point she underwent counseling 6 approximately one time per month. 7 Plaintiff has seen multiple doctors over time. Her 8 general practitioner was a nurse practitioner, Scott Rosman. 9 She has also seen orthopedic surgeon Dr. Eric Seybold. She 10 has seen Dr. Anne Calkins for her back and pain management, 11 Dr. Zia Shah, a pulmonologist, Dr. Brandy Benjamin, 12 Dr. Robert Webster, a psychiatrist, Dr. James Hogan, a 13 podiatrist, Dr. Ahmed Shoaib, described as a primary 14 physician, Dr. James Vincens, Licensed Clinical Social Worker 15 Kyle Webb, Nurse Practitioner Amy Cron, and Dr. Khaula 16 Rehman, a psychiatrist she saw on two occasions. 17 In terms of activities of daily living, plaintiff 18 is able to bathe, dress, cook, clean, shop, do laundry, care 19 for her granddaughter and her mother, attend school. She 20 apparently tried to take a medical assistant's course at 21 Elmira Business Institute but left school reportedly to care 22 for her mother. She is able to use a computer, travel, shop, 23 walk, socialize with friends, attend medical appointments, 24 watch television, she does not like to take public 25 transportation but does on occasion. The evidence is 1 equivocal as to whether she smokes. She reportedly quit but 2 may be using E-cigarettes. At one point she was smoking 3 three packs of cigarettes per day. She is also a past user 4 of heroin and crack cocaine. 5 This case has a relatively tortured procedural 6 history. Plaintiff previously filed six applications for 7 benefits, the most recent prior to this application was 8 denied in March of 2012. On February 28, 2013, she filed an 9 application for Title II and Title XVI benefits, alleging an 10 onset date of May 1, 2011. There were subsequent 11 applications on August 28, 2015 and December 6, 2017. Those 12 applications, the three of them were consolidated for 13 consideration at some point in this case. 14 There have been eight administrative hearings 15 conducted to address plaintiff's various claims in the 16 record. Several relate to the prior application, including 17 June 21, 2007, November 5, 2007, October 9, 2009. 18 December 23, 2012 was a hearing addressing the current 19 applications before Richard DeStefano. There was a hearing 20 on October 2, 2014 before Barry Ryan, July 30th, 2015 before 21 ALJ Barry Ryan, and October 11, 2017 hearing before Judge 22 Elizabeth Koennecke, and another before that same ALJ on 23 November 26, 2019. There were three administrative law judge 24 decisions addressing the current applications, the first from 25 Barry Ryan in August of 2015. That resulted in a consent 1 remand when action was commenced in a District Court. The 2 remand occurred on February 1, 2017 and it resulted in a 3 decision from the Social Security Administration Appeals 4 Council on May 7, 2019, vacating the earlier decision and 5 remanding. A second ALJ decision was issued on November 3, 6 2017 by Administrative Law Judge Elizabeth Koennecke. That 7 ultimately resulted in a reversal by United States Magistrate 8 Judge Thérèse Wiley Dancks on March 11, 2019. ALJ Koennecke 9 issued a third decision on January 7, 2020, which became a 10 final determination of the agency, after 60 days. This case 11 was commenced on March 16, 2020, and is timely. 12 In her decision, ALJ Koennecke painstakingly 13 recounts the medical evidence in the case and the reasons for 14 her decision. She also addresses earlier decisions and is 15 somewhat exercised over having been reversed apparently, but 16 I will say before I address her opinion, I do agree with 17 Mr. Gorton that quantity does not equal quality, but in this 18 case the decision is comprehensive and, as you will see, I 19 think supported. 20 The administrative law judge in her decision 21 indicated first that plaintiff was last insured on 22 December 31, 2012. 23 At step one, she found that plaintiff had not 24 engaged in substantial gainful activity since May 1, 2011, 25 the alleged onset date. She did acknowledge that plaintiff 1 was hired to care for her mother and paid and while she did 2 not consider that substantial gainful activity, she did take 3 it into account when addressing the residual functional 4 capacity of the plaintiff. 5 At step two, ALJ Koennecke found that plaintiff 6 suffers from severe impairments that impose more than minimal 7 limitations on her ability to perform work-related functions, 8 basic work-related functions including a mental impairment 9 that was variously characterized over time, asthma or 10 emphysema, obstructive sleep apnea, degenerative disk disease 11 of the lumbar spine, small meniscal tear of the right knee 12 status postsurgical repair of right knee, and a bilateral 13 foot disorder. 14 At step three, she concluded that plaintiff's 15 conditions do not meet or medically equal any of the listed 16 presumptively disabling conditions set forth in the 17 regulations and she considered quite a few listings 18 addressing both the mental and the physical limitations and 19 conditions experienced by the plaintiff. 20 ALJ Koennecke next concluded that notwithstanding 21 her impairments, plaintiff is capable of performing sedentary 22 work with exceptions related primarily but not exclusively 23 to, I should say primarily but not exclusively to her mental 24 condition because one could argue that the regularly attend 25 to a routine and maintain a schedule has physical and mental 1 components to it. 2 Applying that RFC finding with the assistance of 3 testimony from a vocational expert, ALJ Koennecke concluded 4 that plaintiff is capable of performing her past relevant 5 work as a hair braider and therefore concluded, without 6 addressing step five, that plaintiff was not disabled at the 7 relevant times. 8 As you know, the court's function in this case is 9 extremely limited. I must determine whether correct legal 10 principles were applied and the resulting determination is 11 supported by substantial evidence. Substantial evidence 12 being defined as such relevant evidence as a reasonable mind 13 would find sufficient to support a conclusion. The Second 14 Circuit has noted in Brault v. Social Security Administration 15 Commissioner,

from June of 2012 that this is an 16 extremely deferential and stringent standard. In Brault, the 17 court also noted that under the substantial evidence 18 standard, once an ALJ finds a fact, that fact can be rejected 19 only if a reasonable fact finder would have to conclude 20 otherwise. 21 Plaintiff raises essentially four arguments in 22 support of her challenge to the determination. She argues 23 that it was error not to credit Dr. Hogan's opinions as an 24 acceptable medical source and a treating source. 25 Secondly, she argues that the ALJ substituted her 1 judgment for medical opinions and wrapped into that is a 2 failure to include a sit/stand option into the residual 3 functional capacity finding. 4 The third relates to the failure to properly 5 analyze plaintiff's mental limitations and focus on 6 semi-skilled work in the face of Dr. Loomis' opinion of 7 April 4, 2013 at page 704 to the effect that plaintiff 8 suffers from marked impairments in maintaining attendance and 9 concentration. 10 And fourth, she argues that she is not able to 11 perform her past relevant work because of her deficits in 12 concentration, work pace and attendance. 13 I will note that notwithstanding Judge Dancks' 14 order to the contrary, I did read and consider plaintiff's 15 reply brief in addressing this case. 16 The first argument relates to opinions of Dr. Hogan 17 who has issued several reports suggesting that over time 18 plaintiff's foot conditions have worsened, citing 3022, 3023, 19 3024, and 2939 of the administrative record. Dr. Hogan has 20 given various opinions concerning plaintiff's ability to walk 21 and stand and the need to elevate feet. In March of 2015, he 22 opined that plaintiff can stand only two out of eight hours 23 and must elevate her feet 25 percent of the time. At another 24 point, he opined that plaintiff can only walk or stand for 25 five minutes out of each hour. Dr. -- as the Commissioner 1 concedes, Dr. Hogan as a podiatrist does qualify as an 2 acceptable medical source under the regulations which were in 3 effect at the time of plaintiff's application. And so, as a 4 treating physician, his opinions regarding the nature and 5 severity of plaintiff's impairment normally would be entitled 6 to considerable deference, if supported by medically 7 acceptable clinical and laboratory diagnostic techniques and 8 not inconsistent with other substantial evidence. His 9 opinions, however, are not necessarily controlling if they 10 are contrary to other substantial evidence in the record, 11 including opinions of other medical experts. And of course, 12 under such cases as Veino v. Barnhart,

, Second 13 Circuit 2002, it is for the administrative law judge to 14 resolve any conflicts in the medical evidence. 15 In this case, Dr. Hogan's opinions were discussed 16 by Administrative Law Judge Koennecke at 1931 of the 17 administrative transcript and they were given little weight. 18 And ALJ Koennecke explained why. Despite Dr. Hogan stating 19 that plaintiff's condition worsened, at the hearing plaintiff 20 claims that her condition remained the same. She also 21 explained that the opinions are inconsistent with plaintiff's 22 activities of daily living, including her ability to attend 23 school and care for her mother. She discussed inconsistent, 24 the fact that the opinions were inconsistent with findings at 25 page 1932, and erroneously, as we said, at page 1935 treated 1 Dr. Hogan as not an acceptable medical source. 2 I have reviewed the treatment of Dr. Hogan's 3 opinions in the context of and considering him as a treating 4 source, and although there was not the rote discussion of the 5 Burgess factors, which include length of treatment 6 relationship and frequency of examination, nature and extent 7 of the treatment relationship, the degree to which the 8 medical source has supported his or her opinion, the degree 9 of consistency between the opinion and the record as a whole, 10 whether the opinion is given by a specialist, and other 11 evidence as set forth in both Burgess and 20 C.F.R. Section 12 404.1527 and 416.927, I do find that several of those have 13 been -- were specifically addressed, and relying on Estrella 14 v. Berryhill,

, Second Circuit 2019, I find that a 15 searching review of the record fails to disclose any 16 violation of the treating source rule when it comes to 17 Dr. Hogan's opinion. To the extent that she was in error in 18 treating him as a treating source, I find the error is 19 harmless, and there would be no useful purpose served in 20 remanding for consideration of Dr. Hogan's opinions and 21 treatment as a treating source. Lugo v. Commissioner of 22 Social Security,

from the Northern District 23 of New York, September 11, 2017. So I find no error in 24 response to point number one. 25 In terms of the analysis of medical opinions, 1 there's a wealth of information in this record. I didn't 2 count them up but we have medical source statements from 3 multiple individuals addressing both the physical and mental 4 impairments of the plaintiff. Dr. A. Periakaruppan issued 5 opinions on March 1, 2018, that's at 2034 to 2036, and 6 March 5, 2018, 2850 to 2851, discussed and given some weight 7 by the administrative law judge at 1929 to 1930 and again at 8 1935. 9 Dr. Gilbert Jenouri, an examining consultant, 10 issued reports on April 4, 2013, 706 to 710, November 17, 11 2016, 3098 to 3101, and February 14, 2018, 2843 to 2846, 12 given some weight by the administrative law judge. She 13 discussed those opinions at 1930 and 1935. 14 Dr. Hogan, we've addressed, issued many opinions. 15 They were discussed by the administrative law judge at 1931, 16 1932 and given little weight. 17 Dr. Eric Seybold issued opinions at -- on June 16, 18 2016, that's at 824 to 825, discussed and given little weight 19 at 1932, 1935, 1940, and 1942. 20 Dr. Ahmed Shoaib issued an opinion on September 4, 21 2014 at pages 759 to 760, discussed and given little weight 22 at 1914, 1931 to 1932, 1935, 1940, and 1942. 23 Dr. Anne Calkins issued a report, or opinions on 24 October 11, 2017, October 18, 2019, May 11, 2019 at 3067 to 25 3071 and 2432, given little weight and discussed at 1931, 1 1935, 1940, and 1942. 2 Dr. Echevarria issued an opinion on June 6, 2013 3 finding no evidence of a disorder. 174 to 180. On the 4 mental side of things -- and Dr. Echevarria actually 5 addressed the mental as well. 6 Dr. M. Juriga, psychologist, issued an opinion, a 7 nonexamining psychologist, February 22, 2018, at 2036, 2039, 8 given some weight 1937. 9 Dr. Khaula Rehman issued an opinion on May 15, 10 2019, I noted that she only saw the plaintiff twice. That 11 was reported at 2944 to 2945. It was given some weight but 12 not great weight, discussed at 1939 to 1942. 13 Dr. Mary Ann Moore issued an opinion, a 14 consultative examiner, on February 14, 2018 at 2835 to 2840, 15 given some weight but not great weight, 1938. 16 Dr. T. Harding, state agency consultant, at 2055 to 17 2068, given some weight, discussed at 1937. 18 LCSW Kyle Webb, July 8, 2015, it was found at 952 19 to 953. Nurse Practitioner Amy Cron and LCSW Webb issued an 20 opinion on March 2, 2015, 836 to 838, given little weight, 21 1940, 1942. 22 Dr. Robert Webster, September 3, 2014, 757 to 758, 23 given little weight, 1940, 1942. 24 Dr. Cheryl Loomis, consultative examiner, April 4, 25 2013, 702 to 705, given great weight and discussed at 1936. 1 Dr. Echevarria, June 6, 2013, 160 to 171, and again 2 174 to 186, given some weight, 1937. 3 And lastly, Dr. Amanda Slowik, another examining 4 psychologist I believe, that was from November 17, 2016, it 5 appears at 3105 to 3110, given some weight but not great 6 weight, 1938. 7 The focus of the attack on the weight of the 8 evidence is on both the off-task and absence portion based on 9 Dr. Shoaib, Dr. Seybold, and Dr. Calkins, and the requirement 10 of elevating feet, Dr. Hogan. That's the physical. 11 On the mental side, plaintiff points to marked 12 impairment to attention and concentration from Dr. Slowik, 13 moderate limitation in concentration and pace, Dr. Moore, and 14 off-task and absences from Dr. Slowik, Dr. Loomis, 15 Dr. Webster, Nurse Practitioner Cron, and LCSW Webb, 16 Dr. Moore, and Dr. Juriga. 17 It is for the administrative law judge, as pivotal 18 of course to the determination, to affix the plaintiff's 19 residual functional capacity, or RFC, which is defined as a 20 range of tasks she is capable of performing notwithstanding 21 her impairments. Ordinarily an RFC represents a claimant's 22 maximum ability to perform sustained work activities in an 23 ordinary setting on a regular and continuing basis, meaning 24 eight hours a day, for five days a week or an equivalent 25 schedule. And of course an RFC determination is informed by 1 consideration of all of the relevant medical and other 2 evidence and must be, like anything else, supported by 3 substantial evidence to withstand scrutiny. 4 On the physical side, the RFC determination, 5 clearly there's conflicting evidence. There's something in 6 those medical opinions for everyone. The physical side is 7 supported by Dr. Jenouri and Dr. Periakaruppan which were 8 relied on by the administrative law judge. It's well 9 established that consultative opinions can override a 10 treating source's opinion. James C. v. Commissioner of 11 Social Security,

, Northern District of 12 New York, November 3, 2020. 13 On the mental side, the RFC says semi-skilled work 14 but the vocational expert clearly considered the position as 15 both generally performed and as the plaintiff performed it 16 and concluded that plaintiff is capable of performing it if 17 limited to simple instructions and tasks. That occurs at 18 1063 to 1064, and that finding or that -- the plaintiff's 19 ability in that regard is supported by the opinions of 20 Dr. Echevarria, plaintiff's activities of daily living, the 21 the opinion of Dr. Loomis, the opinion of Dr. T. Harding, 22 Dr. Moore, and Dr. Juriga. 23 The plaintiff is asking this court to reweigh the 24 medical evidence which of course, under Veino, would be 25 improper. 1 Focusing specifically on off-task and absenteeism, 2 Drs. Echevarria, Harding, Juriga, and Periakaruppan are state 3 agency consultants that found that, notwithstanding 4 plaintiff's physical and mental limitations, she is able to 5 perform work. I know that the POMS, the argument that the 6 Commissioner raises is that under the POMS, those consultants 7 were charged with determining whether plaintiff can perform 8 on a sustained basis and adhere to a schedule, and although 9 the POMS are not binding on the court, they are, they provide 10 context because I think from those opinions you can infer 11 that those state agency consultants concluded plaintiff is 12 able to perform on a sustained basis and meet a schedule. 13 The administrative law judge also relied to some degree on 14 Dr. Rehman's opinions, that's found at 1939. Under Veino, 15 it's for the ALJ to resolve conflicts. There clearly is 16 conflict in the record. The ALJ did not rely solely on her 17 lay opinion to reject medical opinions. She explains 18 specifically in fairly significant detail why neither the 19 mental nor physical impairments precluded plaintiff's ability 20 to maintain a schedule. Substantial evidence supports that 21 determination, and I note, by the way, that it is perfectly 22 proper for an administrative law judge to scrutinize whether 23 medical evidence supports an opinion, 20 C.F.R. Sections 24 404.1527(c)(2) and (3) and 416.927(c)(2) and (3). 25 In terms of the sit/stand option, Dr. Jenouri three 1 times and Dr. Periakaruppan's opinion support the lack of 2 need for -- to alter positions. Dr. Jenouri found that 3 plaintiff was moderately limited in standing, sitting, 4 walking, sitting. Dr. Periakaruppan indicated that plaintiff 5 could sit, stand, and walk six hours with normal breaks. 6 Those limitations are not inconsistent with sedentary work 7 with normal breaks. Raymond C. v. Commissioner of Social 8 Security,

, Northern District of New York, 9 January 3, 2020. And in his opinion in that case, Chief 10 Judge Glenn T. Suddaby cites other cases that support that 11 proposition. 12 The administrative law judge explained why she 13 afforded little weight to the contrary opinions by 14 Dr. Seybold and Dr. Calkins, including based on exam findings 15 and activities of daily living. I find that it is adequately 16 explained and the rejection of the sit/stand option is 17 supported by substantial evidence. 18 The fourth argument is a step four challenge and 19 it's dependent on the challenge to the residual functional 20 capacity and I find that, having rejected those arguments, 21 that substantial evidence supports and in particular the 22 vocational expert's testimony supports plaintiff's ability to 23 perform her past relevant work as a hair braider. It's 24 discussed by Administrative Law Judge Koennecke at 1972 to 25 1974, and so I am going to -- I'm sorry, that's the expert 1 testimony. So I'm going to grant judgment on the pleadings 2 to the defendant and order dismissal of plaintiff's 3 complaint. Thank you both, I hope you have a good summer. 4 MR. GORTON: Thank you, your Honor. 5 MS. CARTER: Thank you, your Honor. 6 (Proceedings Adjourned 2:49 p.m.) 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the digitally-recorded proceedings 11 held in the above-entitled matter and that the 12 transcript page format is in conformance with the 13 regulations of the Judicial Conference of the United 14 States. 15 16 Dated this 23rd day of July, 2021. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25