UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ SUSANNA C., Plaintiff, v. 3:20-CV-0931 (ML) COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: SUSANNA Pro se Plaintiff 5847 Catskill Turnpike Road Delhi, New York 13753

SOCIAL SECURITY ADMINISTRATION MICHAEL HENRY, ESQ. Counsel for the Defendant 625 JFK Building 15 New Sudbury Street Boston, Massachusetts 02203

MIROSLAV LOVRIC, United States 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, pursuant to

(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral

1 This matter, which is before me on consent of the parties pursuant to

(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order once issue has been joined, an action such as this is considered procedurally, as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. argument was heard in connection with those motions on February 1, 2022, 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 was supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by 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 ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 15) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 16) is GRANTED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED. 4) Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiff's Complaint in its entirety and closing this case. Dated: February 9, 2022 Binghamton, New York Merah Ew Miroslav Lovric United States Magistrate Judge Northern District of New York

1

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK _____________________________________ K.

vs. 3:20-CV-931

COMMISSIONER OF SOCIAL SECURITY,

Defendant. _____________________________________

Transcript of an Order Telephone conference February 1, 2022

The HONORABLE MIROSLAV LOVRIC Presiding.

A P P E A R A N C E S

For Plaintiff: K., Pro Se

For Defendant: MICHAEL HENRY, ESQ.

Ruth I. Lynch, RPR, RMR, NYSRCR Official United States Court Reporter Binghamton, New York 13901 2

1 THE COURT: So let me start by indicating 2 first that plaintiff has commenced this proceeding 3 pursuant to

(g) and 1383(c)(3) 4 to challenge the adverse determination by the 5 Commissioner of Social Security finding that she was 6 not disabled at the relevant times and therefore 7 ineligible for the benefits that she sought. 8 By way of background, I state as follows: 9 Plaintiff was born in 1957. I’m not going 10 to indicate the date, month, and day in order to 11 protect the privacy of the plaintiff, but Plaintiff 12 was born in 1957, and Plaintiff is currently 13 approximately 64 years old. She was 48 years old at 14 the alleged onset of her disability on May 15th of 15 2006. 16 Plaintiff lives with her husband. 17 Plaintiff is approximately 5 feet 6 inches 18 in height and weighs approximately 370 pounds. 19 Plaintiff has a four-year college degree and 20 can communicate in English. 21 Plaintiff’s past work experience was as a 22 middle school science teacher. 23 Plaintiff suffers from the medically 24 determinable impairments of morbid obesity; 25 hypothyroidism with thyroid nodules; obstructive sleep 3

1 apnea and periodic limb movement disorder; 2 hypertension; hyperlipidemia; hiatal hernia and 3 resulting gastroesophageal reflux disorder; a history 4 of allergic rhinitis; and reactive airway disorder, 5 variously considered as asthma and chronic obstructive 6 pulmonary disorder, also known as COPD. 7 Plaintiff is prescribed the following: 8 Albuterol for asthma; aspirin for blood 9 clots; atorvastatin, or I should say atorvastatin for 10 cholesterol; auto PAP and oxygen concentrator; 11 benazepril for blood pressure; furosemide for edema; 12 glipizide for blood sugar; isosorbide mononitrate for 13 angina pain; Lantus injection 30 milligrams for 14 control of blood glucose; lovothyroxine for thyroid; 15 metoprolol succinate for heart rhythm issues; and 16 Symbicort inhaler; and Warfarin to prevent blood 17 clots. 18 Plaintiff’s activities of daily living 19 include maintaining approximately five properties, by 20 reference transcript at page 551, and repairing 21 people’s houses, and I refer to transcript at 322. 22 Plaintiff applied -- Plaintiff applied for 23 Title II benefits initially on November 10th, 2015, 24 alleging a disability since May 15th of 2006, and then 25 she amended her onset date to December 18, 2007, 4

1 consistent with the obtainment of age 50. The ALJ 2 considered the full initial alleged period of 3 disability. 4 In support of her claim for disability 5 benefits, Plaintiff claims disability based on, inter 6 alia, cardiac disorders, diabetes, obstructive sleep 7 apnea, asthma, kidney disease, reactive airway 8 disease, joint pain, anxiety, endometrial cancer, and, 9 lastly, thyroid disease. 10 Administrative Law Judge Arthur Patane 11 conducted a hearing on November 21st, 2017, to address 12 Plaintiff’s application for benefits. 13 ALJ Patane issued an unfavorable decision on 14 January 25th of 2018. 15 The Social Security Administration Appeals 16 Council denied Plaintiff’s application for review on 17 September 24th of 2018. Plaintiff appealed to the 18 U.S. District Court for the Northern District of New 19 York, where the parties stipulated to a remand on 20 February 7th of 2019. 21 On August 22nd, 2019, the Appeals Council 22 issued a remand order. See transcript at 674 to 675. 23 A second hearing was held on May 19, 2020. 24 ALJ Patane issued a second unfavorable decision on 25 June 1st of 2020. See transcript at 656 to 650 -- let 5

1 me try that again, transcript at 656 to 666. 2 ALJ Patane decision became the final 3 determination because Plaintiff did not file 4 exceptions to the decision, and the Appeals Council 5 did not assume jurisdiction within 60 days, pursuant 6 to 20 CFR Sections 404.984(d). 7 This action was commenced on August 14th of 8 2020, and it is timely. 9 At the hearing on May 19th, 2020, and at the 10 commencement of this action, Plaintiff was represented 11 by Attorney Peter Gorton. Mr. Gorton filed a motion 12 to be relieved as attorney, which was granted before 13 the filing of Plaintiff’s brief. Since the withdrawal 14 of Mr. Gorton, Plaintiff has proceeded pro se and has 15 filed a brief in this case. 16 In his decision, ALJ Patane applied the 17 familiar five-step test for determining disability. 18 At step one he concluded that Plaintiff had 19 not engaged in substantial gainful activity since 20 May 15, 2006, through September 30th of 2009, which 21 was the date on which Plaintiff was last insured. 22 At step 2 he concluded that Plaintiff 23 suffers from severe impairments that impose more than 24 minimal limitations on her ability to perform basic 25 work activities, specifically morbid obesity; 6

1 hypothyroidism with thyroid nodules; obstructive sleep 2 apnea and mild periodic limb movement disorder; 3 hypertension; hyperlipidemia; hiatal hernia and 4 resulting gastroesophageal reflux disorder; history of 5 allergic rhinitis; and reactive airway disorder, again 6 variously considered as asthma and COPD. 7 At step three the ALJ, at step three ALJ 8 Patane concluded that Plaintiff’s conditions do not 9 meet or medically equal any of the listed 10 presumptively disabling conditions set forth in the 11 commissioner’s regulations, focusing on Listing 3.0, 12 which is general respiratory; 4.0, which is 13 cardiovascular; and 9.0, which is endocrine system. 14 The ALJ next determined that Plaintiff 15 retains the residual functional capacity, also known 16 as RFC, to perform light work as defined in 20 CFR 17 404.1567(b), except she could only occasionally climb 18 ramps and stairs; could never climate ladders, ropes, 19 or scaffolds; and needed to avoid concentrated 20 exposure to respiratory irritants. 21 At step four the ALJ concluded that 22 Plaintiff could perform her past relevant work as a 23 middle school science teacher. The ALJ therefore did 24 not proceed to step five. 25 Now, as you know, this Court’s functional 7

1 role in this case is limited and extremely 2 deferential. I must determine whether correct legal 3 principles were applied and whether the determination 4 is supported by substantial evidence, defined as such 5 relevant evidence as a reasonable mind would find 6 sufficient to support a conclusion. As the Second 7 Circuit noted in Brault V. Social Security 8 Administration Commissioner, that’s

, 2012 9 case, the standing is demanding, more so than the 10 clearly erroneous standard. The Court noted in Brault 11 that once there is a finding of fact, that fact can be 12 rejected only if a reasonable fact finder would have 13 to conclude otherwise. 14 Now, in this appeal Plaintiff raises several 15 contentions and arguments. First, Plaintiff argues 16 that she did not have any earnings after May 15, 2006, 17 and she disputes that she worked under the table doing 18 home repairs with her husband or that she owned five 19 rental properties. 20 Second, plaintiff argues that the ALJ erred 21 when considering whether she had severe impairments 22 by, A, not stating that her sleep apnea was severe and 23 included many periods of hypoxia; B, holding that the 24 evidence of record was insufficient to define 25 medically determinable mental impairments between the 8

1 alleged onset date and the date last insured; and, C, 2 holding that the evidence and record was insufficient 3 to find medically determinable impairments of 4 knee/joint issues and edema of the lower extremities 5 between the alleged onset date and the date last 6 insured. 7 Third, Plaintiff argues that through the 8 date last insured, her morbid obesity met or equaled 9 the severity of one of the listed impairments in 10 20 CFR part 404, subpart P, appendix 1. 11 Fourth, Plaintiff argues that the ALJ erred 12 when he found that she had the RFC to perform light 13 work, assigned the opinion of Dr. Dalton little 14 weight, and considered the opinion of Stage agency 15 psychological consultant, Dr. Bruno, who did not 16 physically -- who did not physically assess her. 17 Fifth, Plaintiff argues that the ALJ erred 18 when he found that she would be able to perform as 19 either an elementary or secondary school teacher, as 20 she does not have the mental or physical capacity to 21 perform the position and thus was under a disability 22 from May 15th, 2006, through the date last insured, 23 September 30th of 2009. 24 The Court’s analysis is as follows. 25 With respect to Plaintiff’s first argument, 9

1 ALJ Patane found that Plaintiff did not engage in 2 substantial gainful activity during the relevant time 3 period, a finding that the parties do not contest on 4 appeal. As a result, Plaintiff’s reported activities 5 of completing home repairs with her husband and 6 maintaining rental properties during the relevant 7 period was properly used, pursuant to 20 CFR 8 Section 404.1529(c)(3)(i), as a relevant factor in 9 evaluating her alleged symptoms and limitations, and 10 Section 404.1571, work that is not substantial gainful 11 activity may show that a claimant is able to do more 12 work than he or she actually did. 13 In addition, as Defendant asserts, the Court 14 is limited to the evidence in the administrative 15 record that was before the agency, and thus 16 Plaintiff’s sworn statements in her brief are 17 unavailing. 18 Second, the ALJ supportably determined that 19 Plaintiff’s sleep apnea was a severe impairment that 20 significantly limited the ability to perform basic 21 work activities as required by SSR 85-28. 22 The ALJ also supportably determined that the 23 record evidence was insufficient to find medically 24 determinable mental impairments between the alleged 25 onset date and the date last insured. For example, 10

1 the ALJ noted that although Mr. Ketchel opined that 2 Plaintiff had mental impairments that she had not yet 3 overcome when she moved in 2003, he had not treated 4 her in 13 years when he provided his opinion. There 5 was no medical records to substantiate his diagnosis, 6 and he did not provide any opinion regarding 7 Plaintiff’s functioning during the relevant time 8 period. It is also noteworthy that Mr. Ketchel, as a 9 social worker, was not qualified to diagnosis mental 10 impairments under the regulations. See 20 CFR 11 Section 404.1521 and 404.1502. 12 Further, the ALJ supportably determined that 13 the record evidence was insufficient to find medically 14 determinable impairments of knee/joint issues and 15 edema of the lower extremities between the alleged 16 onset date and the date last insured. For example, 17 although 2007 to 2008 medical notes state that 18 Plaintiff had lower extremity edema, the edema was 19 described as trace, and Plaintiff reported feeling 20 well and did not complain about the edema. In 21 addition, during a December 2010 cardiology visit, 22 Plaintiff exhibited no edema and reported that she was 23 physically quite active. 24 Third, for the reasons stated in Defendant’s 25 brief, Plaintiff has not shown that she had a 11

1 musculoskeletal impairment that met or equalled a 2 listing when considered in combination with her 3 obesity. Plaintiff has not shown that the records 4 attached to her brief, which are dated 2010 through 5 2018, were not in existence or available to her at the 6 time of the administrative hearing in 2020. In 7 addition, Plaintiff failed to show that these records 8 might have changed the outcome of the prior proceeding 9 where the medical records from December 2010 reflected 10 that Plaintiff was physically active and reported no 11 physical symptoms, which is strong evidence that her 12 impairments were not as limiting as she alleges. 13 Fourth, the RFC finding was supported by 14 substantial evidence. The ALJ supportably assigned 15 little weight to the opinion of Dr. Dalton, noting 16 that the record was poorly supported by Dr. Dalton’s 17 opinion because primary care and endocrinology records 18 referenced few physical complaints and mostly benign 19 clinical findings with only conservative care and 20 because when she presented with significant 21 respiratory, sleep, energy, and pain complaints in mid 22 2009, they appeared to have mostly resolved with quick 23 implementation after CPAP therapy. See transcript at 24 663. 25 The ALJ stated that Dr. Dalton’s opinion was 12

1 contradicted by Plaintiff’s own accounts from February 2 2008 that she told her endocrinologist that she had 3 come -- she had some fatigue and shortness of breath, 4 particularly when climbing stairs. See transcript at 5 663. 6 The ALJ also noted that in May 2018, upon 7 return to her general practitioner, Plaintiff had no 8 active complaints of chest pain or shortness of 9 breath. See transcript at 6 -- at page 663. The ALJ 10 stated that throughout the record Plaintiff informed 11 her medical providers that she was performing work 12 doing home repairs with her husband and maintaining 13 properties. Thus the ALJ’s assignment of little 14 weight to Dr. Dalton’s opinion is supported by 15 substantial evidence. 16 Further, in assessing Plaintiff’s RFC, an 17 ALJ is entitled to rely on opinions from both 18 examining and nonexamining state agency medical 19 consultants because these consultants are qualified 20 experts in the field of Social Security Disability. 21 See 20 CFR Sections 4704.1512(b)(vi); 22 Section 404.1513(c); Section 404.1527(e). See also 23 case Frey ex rel. A.O. versus Astrue at 485 Fed 24 Appendix 484 at page 487, a Second Circuit 2012 case. 25 And in there the report of a state agency medical 13

1 consultant constitutes expert opinion evidence which 2 can be given weight if supported by medical evidence 3 in the record. 4 See also the case of Little versus Colvin, 5 that’s 14-CV-63, that’s found at 2015 West Law 6 1399586 at page 9, and that’s a Northern District of 7 New York March 26, 2015, case. And it stands for the 8 proposition that state agency physicians are qualified 9 as experts in the evaluation of medical issues in 10 disability claims. As such, their opinions may 11 constitute substantial evidence if they are consistent 12 with the record as a whole. Therefore, the ALJ was 13 allowed to consider and rely on Dr. Bruno’s opinion. 14 Fifth, under 20 CFR Section 404.1529(a), an 15 ALJ cannot rely on Plaintiff’s statements alone, and 16 the ALJ must weigh them against all of the other 17 evidence. Here, the ALJ properly weighed all the 18 evidence and accepted functional limitations that 19 record -- that the record credibly supports. The ALJ 20 was not required to assume additional limitations when 21 evaluating Plaintiff’s ability to do her past work or 22 other jobs in the national economy. 23 So based on this record and based on 24 everything before this Court, I find that as a result 25 Plaintiff’s motion for judgment on the pleadings is 14

1 denied. The defendant’s motion for judgment on the 2 pleadings is granted. Plaintiff’s complaint is 3 dismissed, and the Commissioner’s decision denying 4 Plaintiff benefits is hereby affirmed. 5 That constitutes the Court’s order. 6 - - - - - 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25