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

JOHN C., Plaintiff, v. Civil Action No. 5:20-CV-341 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OLINSKY LAW GROUP MELISSA A. PALMER, ESQ. 250 S. Clinton Street HOWARD D. OLINSKY, ESQ. Suite 210 Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. LUIS PERE, ESQ. 625 JFK Building 15 New Sudbury St 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(3)(c), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on August 17, 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 GRANTED.

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. 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: August 24, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x JOHN C., Plaintiff, -v- 5:20-CV-341 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES August 17, 2021 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) OLINSKY LAW GROUP 300 South State Street Suite 420 Syracuse, New York 13202 BY: MELISSA A. PALMER, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: LUIS PERE, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all parties present by telephone.) 2 THE COURT: Let me begin by thanking both counsel for 3 excellent presentations. The material that you have provided to 4 the Court in the way of written submissions was extremely 5 helpful. I found this case to be very interesting. 6 I have before me a challenge to an adverse

7 determination by the Commissioner of Social Security pursuant to 8

(g) and 1383(c)(3) 9 challenging a finding that the plaintiff was not disabled at the 10 relevant times and therefore ineligible for the benefits sought. 11 The background is as follows: Plaintiff was born in 12 August of 1968 and is currently about to turn 53 years of age 13 shortly. He was 48 years old at the alleged onset of his 14 disability in August of 2016. Plaintiff stands 5'11" in height 15 and has weighed at various times between 157 and 166 pounds. 16 Plaintiff lives alone in Auburn, New York. He did live with his 17 mother who apparently died in May of 2018. 18 Plaintiff has a 10th grade education and did achieve 19 a GED. He also had six months of vocational training in the 20 field of electrical trades. The evidence is equivocal as to 21 whether plaintiff was in regular or instead special education

22 classes. From his function report, it was indicated that he 23 attended school in regular classes, but he advised Dr. Shapiro 24 that he was in special education classes. Plaintiff apparently 25 suffered from behavioral issues of significance while in school. 1 He also has a history of foster care and, by most accounts, a 2 rough childhood. Plaintiff is left-handed. He has a driver's 3 license but no vehicle. 4 Plaintiff stopped working in August of 2016. At page 5 279, he indicated to his counselor that it was due to stress and 6 back pain. He advised Dr. Shapiro, at 297, that he left

7 voluntarily because he could no longer stand at work. 8 Plaintiff's past work has included as a dishwasher, a 9 maintenance crew member at McDonald's, a landscaper, an 10 unskilled laborer, and a prep cook. Plaintiff resumed working 11 in November of 2018 where he works 45 to 50 hours per week 12 picking up 15-pound bundles of newspaper and feeding them into a 13 machine that apparently makes some sort of insulation. 14 Plaintiff testified that he has no difficulty performing his 15 job, but his supervisor does allow him breaks. 16 Physically, plaintiff suffers from possible lumbar 17 sciatica, stenosis, radiculopathy, spondylosis, COPD, and a 18 history of cataract surgery. Plaintiff, at 303, indicates he 19 was told that he has bulging and/or slipped discs. Magnetic 20 resonance imaging, or MRI, testing was performed on October 14, 21 2016. It appears at various locations, the report of that

22 testing, in the record, including at pages 263 and 264, 331 and 23 332, and 275 to 276. The impression from that testing was 24 mutlilevel degenerative changes of the lumbar spine, seen in 25 association with grade 2 anteriorlisthesis of L5 on S1 with 1 bilateral L5 pars defects; no significant central spinal canal 2 stenosis, although some obliteration of the bilateral foramina 3 at L5-S1; also, moderate lateral recess stenosis and reactive 4 endplate edema at L2-L3; and asymmetric decreased signal 5 intensity of the left kidney maybe due to technical artifact. 6 There was also an indication of some bulging -- mild to moderate

7 bulging at T12-L1, L1-L2, L2-L3, L3-L4, L4-L5. The plaintiff 8 also underwent an X-ray at -- on March 3, 2007, of his back. 9 That appears at 307. 10 Mentally speaking, the plaintiff suffers from 11 posttraumatic disorder or PTSD, social anxiety disorder, 12 depressive disorder, and schizophrenia. Some of his stressors 13 have included the fact that his sister died in either 2015 or 14 2016 and a brother died of an overdose in December of 2016, in 15 addition to his mother passing away. 16 Plaintiff was hospitalized at CPEP for 72 hours in 17 2007. At the time, he was apparently under the influence of 18 cocaine and was regarded as a potential suicide risk. 19 Plaintiff's primary care physician is Sara Zafar. He has also 20 seen Dr. Renee Melfi to manage his pain since November of 2016. 21 He did in the past receive mental health treatment at the Cayuga

22 County Community Mental Health Center from Licensed Clinical 23 Social Worker Michelle Fiorelli, but testified that although 24 that treatment has helped him, he's not currently undergoing 25 mental health treatment. 1 In terms of medications, plaintiff in the past has 2 been prescribed Ativan, Gabapentin, and Seroquel, although he 3 testified he's no longer taking Gabapentin. He's also had 4 cortisone injections, pain blocks, and epidural injections. 5 There is some indication in the record that he may have at one 6 point in time undergone physical therapy, but there are no

7 records of physical therapy in the Administrative Transcript. 8 Plaintiff has a history of stimulant, marijuana, and cocaine 9 abuse. He's also a daily smoker, approximately one and a half 10 packs per day. 11 In terms of activities of daily living, plaintiff is 12 able to dress, bathe, groom, cook, do dishes, clean -- although 13 he denied the ability to clean to Dr. Lorensen -- do laundry, 14 shop -- again, he denied the ability to shop to Dr. Lorensen -- 15 he can use public transportation, he watches television, and 16 plays the guitar. 17 Procedurally, plaintiff applied for Title II benefits 18 on December 9, 2016, and Title XVI Supplemental Security Income 19 benefits on January 9, 2017, alleging an onset date of 20 August 16, 2016, in both applications. He has claimed 21 disability based upon a psychotic disorder, a generalized

22 anxiety order, personality disorder, dysthymic disorder, spinal 23 stenosis of the lumbar area, chronic arthritis of the spine, and 24 schizophrenia. A hearing was conducted on January 18, 2019, 25 with a vocational expert and plaintiff testifying before 1 Administrative Law Judge Jeremy Eldred. On January 25, 2019, 2 Administrative Law Judge Eldred issued an unfavorable decision 3 which became a final determination of the agency on January 29, 4 2020, when the Social Security Administration Appeals Council 5 denied plaintiff's application for a review. This action was 6 commenced on March 26, 2020, and is timely.

7 In his decision, ALJ Eldred applied the familiar 8 five-step sequential test for determining disability. He first 9 noted that plaintiff had insured status for purposes of his 10 Title II application through June 30, 2018. At step one, ALJ 11 Eldred concluded that plaintiff had not engaged in substantial 12 gainful activity between August 16, 2016, and November 18th -- 13 November of 2018 when he returned to work. He also noted 14 parenthetically that he has considered plaintiff's return to 15 work as part of the evidence regarding his abilities and 16 limitations. 17 At step two, Administrative Law Judge Eldred 18 concluded that plaintiff suffers from severe impairments, 19 including degenerative changes of the lumbar spine, 20 schizophrenia, depressive disorder, social anxiety disorder, 21 PTSD, and polysubstance abuse.

22 He concluded, however, at step three that plaintiff's 23 conditions do not either singly, or in combination, meet or 24 equal any of the listed presumptively disabling conditions set 25 forth in the Commissioner's regulations. ALJ Eldred next 1 concluded that plaintiff retains the residual functional 2 capacity, or RFC, to perform light work, except he can perform 3 only simple routine tasks, can make only simple work-related 4 decisions, can interact with supervisors or coworkers no more 5 than occasionally, is unable to do a job that requires 6 interaction with the public as part of the usual job duties, and

7 can appropriately deal with ordinary changes in an unskilled 8 occupation. 9 Applying that RFC finding at step four, ALJ Eldred 10 concluded that plaintiff is not cable of performing his past 11 relevant work since he could not meet the exertional 12 requirements of the past relevant work. 13 At step five, ALJ Eldred concluded first that if 14 plaintiff were capable of performing a full range of light work, 15 a finding of no disability would be required under 16 Medical-Vocational Guidelines or Grid Rule 202.21 and 202.14. 17 Relying on the testimony of the vocational expert who was posed 18 a hypothetical that tracked the RFC finding, ALJ Eldred 19 concluded that plaintiff is capable of performing available work 20 in the national economy and cited as representative positions 21 those of cleaner, photocopy machine operator, and marker, and

22 thus found that plaintiff was not disabled at the relevant 23 times. 24 As you know, the Court's function in this case is 25 extremely limited and the standard to be applied extremely 1 deferential. The Court must determine whether correct legal 2 principles were applied and whether the result is supported by 3 substantial evidence, which is defined as such relevant evidence 4 as a reasonable mind would find sufficient to support a 5 conclusion. The Second Circuit has noted in Brault v. Social 6 Security Administration Commissioner,

from 2012,

7 that the standard is exceedingly deferential, more so than even 8 the clearly erroneous standard that we as lawyers are familiar 9 with. The Court also concluded in -- observed, I should say, in 10 Brault that under the standard once a fact is found by the 11 Administrative Law Judge, that fact can be rejected only if a 12 reasonable factfinder would have to conclude otherwise. 13 In this case, the plaintiff challenges the RFC 14 finding, both its physical and mental components, as not 15 supported by substantial evidence. Woven into that is the 16 argument that the Administrative Law Judge failed to fill gaps 17 in the record by either ordering another consultative exam or 18 recontacting plaintiff's care providers. As a backdrop, I note 19 that it is plaintiff's burden to establish his limitations 20 through the RFC finding at step four, and I note that although 21 represented by counsel, plaintiff did not submit any medical

22 source statements from any treating sources. Of course, this is 23 not fatal and the plaintiff can carry his burden in other ways, 24 including through the existing evidence in the record and 25 hearing testimony. 1 The first task, and pivotal to the finding of whether 2 the plaintiff is disabled or not, is the determination of 3 plaintiff's RFC which represents a finding of the range of tasks 4 he is capable of performing notwithstanding his impairments. 5 Ordinarily, an RFC represents a plaintiff's maximum ability to 6 perform sustained work activities in an ordinary setting on a

7 regular and continuing basis, meaning eight hours a day for five 8 days a week or an equivalent schedule. An RFC is informed by 9 consideration of all of the relevant medical and other evidence, 10 and, of course, an RFC finding must be supported by substantial 11 evidence. 12 In this case I previously read the RFC, which 13 includes both the physical ability to perform light work and 14 some mental limitations that were added. In terms of the mental 15 aspects, there were two medical opinions in the record speaking 16 to that issue. One is from consultative examiner Dr. Jeanne 17 Shapiro, a report from March 10, 2017, that appears at 297 18 through 301 of the record. In her report, Dr. Shapiro states 19 that plaintiff appears to -- and I'm not sure quite the 20 significance of the interjection of that phrase -- appears to 21 have certain limitations, many of which are mild, some of which

22 are deemed to be moderate, and moderate to marked limitations in 23 a couple areas, including interacting adequately with 24 supervisors, coworkers, and the public, and in regulating 25 emotions, controlling behavior, and maintaining wellbeing. The 1 Administrative Law Judge spoke to that opinion on page 16 of the 2 Administrative Transcript and gave it significant weight because 3 Dr. Shapiro had examined the plaintiff and was familiar with 4 Social Security principles. 5 The second opinion that speaks to the mental 6 condition of the plaintiff is from a psychologist, Dr. Fassler,

7 dated March 21, 2017. It is incorporated within Exhibit 1A of 8 the Administrative Transcript. Dr. Fassler reviewed the medical 9 evidence, including Dr. Shapiro's report, and concluded that 10 plaintiff retains the mental RFC to perform the basic demands of 11 unskilled work on a sustained basis with limited interpersonal 12 contact. The Administrative Law Judge spoke, also, regarding 13 that report at page 16 of the Administrative Transcript and gave 14 that report, also, significant weight. 15 I would acknowledge, as plaintiff has argued, that 16 the opinion of ALJ Eldred could have been more robust in 17 addressing the limitations of Dr. Shapiro and how they are 18 consistent with, or not supported by, the evidence -- consistent 19 with the RFC or not supported by the evidence. I would have 20 liked to have seen a more fulsome discussion concerning those 21 reports and how they interplay with and lead to the mental

22 aspects of the RFC finding, but I'm not able to say that the RFC 23 mental component is not supported by substantial evidence given 24 the extremely deferential standard that I must apply. 25 Turning to the physical components of the RFC, the 1 only opinion evidence addressing that comes from Dr. Elke 2 Lorensen, her report dated March 10, 2017, it appears at page 3 303 through 307 of the Administrative Transcript. Dr. Lorensen 4 concludes that there are no gross limitations to sitting, 5 standing, walking, or handling small objects with the hands. 6 There are moderate limitations for bending, lifting, and

7 reaching. The opinion of Dr. Lorensen was discussed by 8 Administrative Law Judge Eldred at page 16 and given significant 9 weight. 10 I find that the residual functional capacity is 11 supported by substantial evidence. Dr. Lorensen's opinion is 12 somewhat vague. The use of the term moderate, for example, with 13 regard to reaching and so forth is vague. The Second Circuit 14 spoke to that in Curry v. Apfel. The plaintiff was deemed 15 capable of performing light work in the RFC, which is defined 16 under 20 C.F.R. Section 404.1567(b) to include, among other 17 things, lifting no more than 20 pounds at a time with frequent 18 lifting or carrying of objects weighing up to 10 pounds. And 19 the definition goes on, of course, to address other issues. 20 The Administrative Law Judge, once again, could have 21 been more detailed in his explanation, but he did not rely

22 solely on the report of Dr. Lorensen, he relied on the 23 plaintiff's activities of daily living, taking care of his 24 mother, his ability -- and this is discussed at the bottom of 25 page 15, his ability to perform other activities of daily 1 living, including to shop, prepare meals, do general cleaning, 2 and laundry. He relied on the nonsurgical conservative 3 treatment for plaintiff's back pain, and that's a proper 4 consideration. Plaintiff testified he was no longer taking 5 Gabapentin for his back pain. 6 The plaintiff also returned to work in November of

7 2018 at a job that included lifting up to 15 pounds occasionally 8 for 45 to 50 hours per week. The ALJ noted that when asked at 9 the hearing whether his health problems had changed over time, 10 the testimony was that his health is getting worse. From that, 11 the Administrative Law Judge drew the inference that if his 12 health is worse now than it was before during the relevant 13 period and he is able to work 45 to 50 hours per week at this 14 job, that he also could have worked during the relevant period. 15 I think that's a proper inference to draw. 16 I am unable to say, given those circumstances, that 17 the resulting residual functional capacity physical component 18 was not supported by substantial evidence, so I do find the 19 residual functional capacity, applying the requisite deferential 20 standard, is supported by substantial evidence. The step five 21 determination, which was based on a vocational expert's

22 testimony, that in turn was based on a hypothetical that tracked 23 the RFC, I find that the Commissioner at step five did carry her 24 burden of proof. I will therefore award judgment on the 25 pleadings to the defendant and order dismissal of plaintiff's 1 complaint. 2 Thank you both for excellent presentations. I hope 3 you have a good rest of the summer. 4 MS. PALMER: Thank you, your Honor. 5 MR. PERE: Thank you, your Honor. 6

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23 24 25 1 2 3 CERTIFICATE OF OFFICIAL REPORTER 4 5 6 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR,

7 Official U.S. Court Reporter, in and for the United States 8 District Court for the Northern District of New York, DO HEREBY 9 CERTIFY that I transcribed the foregoing proceedings from a 10 digital recording, and that the foregoing is a true and correct 11 transcript thereof. 12 13 Dated this 19th day of August, 2021. 14 15 s/ Hannah F. Cavanaugh______________________ 16 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 17 Official U.S. Court Reporter 18 19 20 21 22

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