UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

NATASHA H.,

Plaintiff,

v. 5:20-cv-1221 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

LAW OFFICES OF KENNETH HILLER, PLLC JUSTIN M. GOLDSTEIN, ESQ. Counsel for the Plaintiff 6000 North Bailey Avenue - Suite 1A Amherst, New York 14226

SOCIAL SECURITY ADMINISTRATION TIMOTHY S. BOLEN, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney J.F.K. Federal Building, Room 625 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 24, 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. 12) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 13) 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 Plaintiffs Complaint in its entirety and closing this case. Dated: February 28, 2022 Binghamton, New York | > Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -----------------------------------------------------x NATASHIA MARIE H.,

Plaintiff,

vs. 5:20-CV-1221

ANDREW M. SAUL, Commissioner of Social Security, Defendant. -----------------------------------------------------x DECISION - February 24, 2022 the HONORABLE MIROSLAV LOVRIC United States Magistrate Judge, Presiding

APPEARANCES (by telephone)

For Plaintiff: LAW OFFICES OF KENNETH HILLER, PLLC 6000 North Bailey Avenue Amherst, NY 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 15 New Sudbury Street Boston, MA 02203 BY: TIMOTHY SEAN BOLEN, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by indicating that 2 Plaintiff in this case has commenced this proceeding pursuant 3 to Title

(g) and Section 4 1383(c) to challenge the adverse determination by the 5 Commissioner of Social Security finding that she was not 6 disabled at the relevant times and therefore ineligible for 7 the benefits that she sought. 8 By way of background, the Court sets forth the 9 following background in the record. 10 Plaintiff was born in 1985. She is currently 36 11 years old. She was 29 years old at the alleged onset of her 12 disability on September 17th of 2015. 13 Plaintiff lives with her parents and three minor 14 children. 15 Plaintiff is approximately 5 feet, 3 inches in 16 height and weighs approximately 258 pounds. 17 Plaintiff has a high school education. 18 Plaintiff has relevant past work as a director at 19 Boys and Girls Club, which was classified by the vocational 20 expert as director/child development. 21 Plaintiff suffers from back injury and obesity. 22 Plaintiff's activities of daily living include 23 watching television, using social media, and caring for her 24 three minor children with help from her parents and sibling. 25 Procedurally in this case, the Court sets forth the 1 following. 2 Plaintiff applied for Title II and Title XVI 3 benefits on February 19th of 2016, alleging an onset date of 4 September 17th of 2015. 5 In support of her claim for disability benefits, 6 Plaintiff claims disability based on a spine disorder and 7 obesity. 8 Administrative Law Judge Gretchen Mary Greisler 9 conducted a hearing on March 14th of 2018, where Plaintiff 10 was represented by Matthew Nutting, to address Plaintiff's 11 application for benefits. ALJ Greisler issued an unfavorable 12 decision on May 11th, 2018. That can be found at 13 Administrative Transcript pages 121 through 132. 14 The Social Security Administration Appeals Council 15 granted Plaintiff's appeal and remanded the case back to the 16 ALJ Greisler. See Transcript at 137 through 139. 17 ALJ Greisler held a second hearing on June 12th, 18 2019, and a continuation hearing on October 23th, 2019. 19 ALJ Greisler issued a second unfavorable decision 20 on February 5th of 2020. That can be found at Transcript 21 pages 10 through 18. That became a final determination of 22 the Agency on August 21 of 2020 when the Social Security 23 Administration Appeals Council denied Plaintiff's application 24 for review. See T at pages 1 through 3. 25 This action was commenced on October 5th of 2020 1 and it is timely. 2 In her decision, ALJ Greisler applied the familiar 3 five-step test for determining disability. 4 At step one, she concluded that Plaintiff had not 5 engaged in substantial gainful activity since September 17 of 6 2015, the alleged onset date. 7 At step two, she concluded that Plaintiff suffers 8 from severe impairments that impose more than minimal 9 limitations on her ability to perform basic work activities, 10 specifically a spine disorder and obesity. 11 At step three, ALJ Greisler concluded that 12 Plaintiff's conditions do not meet or medically equal any of 13 the listed presumptively disabling conditions as set forth in 14 the Commissioner's regulations, and focusing on listing 1.04 15 which relates to disorders of the spine, and 1.00 which 16 relates to musculoskeletal system. 17 At step four, the ALJ next determined that 18 Plaintiff retains the residual functional capacity, also 19 known as RFC, to perform sedentary work except she can sit 20 for up to 45 minutes before needing to take a brief, and 21 brief defined as one to two minute, break in order to 22 stretch. She retains the ability to remain on task to the 23 extent that doing so is possible. She can occasionally 24 stoop, balance, and climb stairs and ramps. She cannot 25 crouch, crawl, kneel or climb ladders, ropes or scaffolds. 1 She cannot work at unprotected heights or work around 2 dangerous equipment. She cannot use foot controls. She may 3 require the use of a cane or crutch for prolonged ambulation, 4 walking on uneven terrain, or ascending and descending 5 slopes. She retains the ability to carry small objects such 6 as files in her free hand. 7 The ALJ concluded that Plaintiff can perform her 8 past relevant work as a director/child development center. 9 The ALJ, therefore, did not proceed to step five and 10 concluded that Plaintiff has not been under a disability. 11 As you know, the Court's functional role in this 12 case is limited and extremely deferential. I must determine 13 whether correct legal principles were applied and whether the 14 determination is supported by substantial evidence, which is 15 defined as such relevant evidence as a reasonable mind would 16 find sufficient to support a conclusion. As the Second 17 Circuit noted in the case of Brault versus Social Security 18 Administration Commissioner, that can be found at

443, 2012 case, the standard is demanding, more so than the 20 clearly erroneous standard. The Court noted in Brault that 21 once there is a finding of fact, that fact can be rejected 22 only if a reasonable factfinder would have to conclude 23 otherwise. 24 Now, generally Plaintiff raises the following 25 contentions. 1 First, Plaintiff argues that the ALJ erred by not 2 complying with the Appeals Council's remand order because she 3 (a) never provided Dr. Ganesh for cross-examination, (b) 4 failed to request that the treating sources provide 5 additional evidence or further clarification of the opinions, 6 and (c) did not properly weigh all treating source opinions. 7 Second, Plaintiff argues that substantial evidence 8 does not support (a) the RFC because the ME's opinion (i) was 9 not supported by objective medical findings, and (ii) 10 improperly relied on an insufficient record, and (iii) 11 inaccurately recitation about Plaintiff's drug addiction, or 12 (b) the ALJ's analysis of Plaintiff's subjective symptoms. 13 And lastly, Plaintiff argues that the ALJ's 14 consistency finding is unsupported by substantial evidence. 15 Now, the Court provides the following analysis of 16 this matter. 17 First, I do find that the ALJ complied with the 18 Appeals Council's remand order. This Court finds that 19 contrary to Plaintiff's argument, the remand order does not 20 require Dr. Ganesh be provided for cross-examination. The 21 remand order instructed the ALJ to proffer all post hearing 22 evidence to Plaintiff and to offer Plaintiff an opportunity 23 to review and comment upon all evidence admitted into the 24 record. As a result, I find Plaintiff's argument in this 25 respect unpersuasive. 1 Further, the remand order did not require the ALJ 2 to seek additional evidence or clarification from Plaintiff's 3 treating sources, but gave the ALJ discretion. As Defendant 4 asserts, the ALJ did not abuse her discretion by failing to 5 weigh an opinion from Nurse Practitioner Julie Glaza, who was 6 not an acceptable medical source under the guidelines and, in 7 any event, could not have had an effect on the outcome of the 8 case. Moreover, although the ALJ did not consider 9 Dr. Bianco's updated opinion dated June 12, 2018, I find that 10 the Plaintiff cannot demonstrate prejudice for the reasons 11 stated in Defendant's brief, including but not limited to, 12 the fact that it included identical check marked limitations 13 as the November 2017 opinion of Dr. Bianco that the ALJ 14 assigned little weight to. 15 Moreover, I reject Plaintiff's contention that the 16 ALJ discounted Dr. Bianco's opinion for impermissible 17 reasons. First, the conditions in Dr. Bianco's opinion dated 18 April 13, 2016 were (a) temporary and thus do not satisfy the 19 Social Security Act's duration requirement, (b) on an issue 20 reserved to the Commissioner and therefore is not entitled to 21 any weight, and (c) lacks specificity. Second, the ALJ was 22 not required to recontact Dr. Bianco regarding his opinion 23 dated November 20, 2017, which failed to quantify any of the 24 limitations that he checked off. "The fact that the record 25 does not contain any function-by-function opinions does not 1 create a gap in the record or render the record incomplete, 2 so long as the record has no obvious gaps and contains 3 sufficient evidence for the ALJ to render an RFC finding, she 4 has no duty to recontact treating sources for statements or 5 opinions." That statement that I just read is supported by 6 the case of Sarah C. versus Commissioner of Social Security, 7 19-cv-1431, and that can be found at

, at page 8 10, and that is a Northern District of New York, March 29, 9 2021 case, District Court Judge Scullin. And therein Judge 10 Scullin cited the case of Monroe versus Commissioner of 11 Social Security, that can be found at 676, F.App'x 5, at 12 page 8. That's a Second Circuit 2017 case. 13 Next, this Court finds that substantial evidence 14 does support the RFC. 15 The remand order did not prohibit the ALJ from 16 reviewing the evidence and reaching the same RFC as 17 determined in the decision dated May 11th of 2018. 18 The ALJ supportably assigned partial weight to the 19 opinion of consultative examiner Dr. Ganesh, and, in fact, 20 included limitations that were more favorable to Plaintiff 21 than Dr. Ganesh opined. As a result, the ALJ's departure 22 from Dr. Ganesh's opinion cannot be prejudicial to Plaintiff. 23 Next, for the reasons stated in Defendant's brief, 24 I do find that the ALJ supportably considered medical 25 examiner Dr. Urbaniak's opinion, and assigned it some weight 1 based on the other evidence in the record. 2 The ALJ was not required to discuss every piece of 3 evidence in the record to show that it was considered and did 4 not cherry pick findings here. 5 I find Plaintiff's arguments regarding the 6 sit/stand limitation in the RFC unpersuasive. Plaintiff 7 fails to cite any evidence in the record that establishes 8 that her RFC should be more restrictive than the ALJ found. 9 Next, I find that substantial evidence supports the 10 ALJ's analysis of Plaintiff's subjective symptoms. Under 20 11 C.F.R. Section 404.1529(c)(2) the ALJ was allowed to find 12 that Plaintiff's subjective symptoms were not entirely 13 consistent with the objective medical evidence and other 14 evidence in the record. More specifically, the ALJ properly 15 concluded that Plaintiff's reported daily activities were not 16 as limited as one might expect in light of Plaintiff's 17 allegations. 18 Finally, I find that Plaintiff cannot carry her 19 burden to prove her spine disorder met or medically equaled 20 listing 1.04A. 21 "Plaintiff has the burden of proof at step three to 22 show that her impairments meet or medically equal a listing." 23 See Rockwood v. Astrue,

, at page 272, and 24 that's a Northern District of New York 2009 case. And 25 therein citing the case of Naegele versus Barnhart, 433

, at page 324, and that's a Western District of 2 New York 2006 case. 3 Plaintiff failed to meet her burden of showing that 4 she met or medically equaled listing 1.04A because she does 5 not develop any argument including citing medical records 6 that show that her impairments would, or be expected, to 7 continue for at least 12 months. More specifically, the 2013 8 MRI cited by Plaintiff showing disc exertion predated alleged 9 onset date by more than a year. See Transcript at page 451. 10 Based on this record as a result, Plaintiff's 11 motion for judgment on the pleadings is denied. Defendant's 12 motion for judgment on the pleadings is granted. Plaintiff's 13 complaint is dismissed. And the Commissioner's decision 14 denying Plaintiff benefits is affirmed. 15 This constitutes the decision and analysis of the 16 Court. Thank you both again for very good briefs. And that 17 concludes the Court's decision and the Court's proceeding 18 today. Thank you. And everyone have a good rest of the day. 19 And as I indicated, I will set forth in the record 20 a written order with the transcript of my decision and 21 analysis that I just set forth here on the record. Have a 22 good day, everyone, and get ready for the snowstorm that's 23 coming tomorrow. 24 * * * 25 1 2 C E R T I F I C A T I O N 3 4 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 5 Realtime Court Reporter, in and for the United States 6 District Court for the Northern District of New York, 7 do hereby certify that pursuant to Section 753, Title 28, 8 United States Code, that the foregoing is a true and correct 9 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 15 16 ________________________________ 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 18 19 20 21 22 23 24 25