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

LYUBOV R. Y.,

Plaintiff, v. Civil Action No. 6:20-CV-1443 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OFFICE OF PETER W. PETER W. ANTONOWICZ, ESQ. ANTONOWICZ 148 West Dominick Street Rome, NY 13440

FOR DEFENDANT

SOCIAL SECURITY ADMIN. CANDACE LAWRENCE, 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), are cross-motions for judgment on the pleadings.1 Oral

argument was heard in connection with those motions on June 22, 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 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. 2) The Commissioner=s determination that the plaintiff was not

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. 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.

David E. Peebles U.S. Magistrate Judge Dated: June 24, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x LYUBOV Y., Plaintiff, -v- 6:20-CV-1443 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES June 22, 2022 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LAW OFFICE OF PETER W. ANTONOWICZ 148 West Dominick Street Rome, New York 13440 BY: PETER W. ANTONOWICZ, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building Room 625 Boston, Massachusetts 02203 BY: CANDACE LAWRENCE, 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 Time noted: 11:11 a.m.) 3 THE COURT: Let me begin by thanking both counsel for 4 excellent and spirited presentations. 5 Plaintiff has commenced this proceeding pursuant to 6

(g) to challenge an adverse

7 determination by the Acting Commissioner finding that she was 8 not entitled to the disability insurance benefit, Title II 9 benefits, that she applied for. 10 The background is as follows: Plaintiff was born in 11 July of 20 -- I'm sorry, 1970. She's currently 51 years of age. 12 She was 47 at the alleged onset of her disability in March of 13 2017. Plaintiff is originally from Belarus and came to the 14 United States in roughly 2018 -- no, I'm sorry, she has been -- 15 as of 2018, she had been here for 29 years. Plaintiff stands 16 5'6" in height and weighs 238 pounds, which qualifies her as 17 obese. Plaintiff attended college in Latvia and graduated with 18 some sort of culinary degree in baking and/or cooking. While in 19 school, she attended regular classes. 20 Plaintiff lives in Deerfield, New York. It's 21 unclear, but it appears she may be separated. She has six

22 children, all or some of whom in 2018 were residing with her. 23 Plaintiff drives. Plaintiff worked as a nurse's aide between 24 May of 2004 and March of 2017. She was engaged in home care for 25 the disabled. Plaintiff suffered a Workers' Compensation 1 on-the-job injury on January 11, 2017, when she slipped on ice 2 causing injury to her head, neck, back, and bilaterally to her 3 legs. 4 Physically, plaintiff suffers from degenerative disc 5 disease of the cervical and lumbar spine, hypertension, obesity, 6 and a history of kidney cysts. The plaintiff underwent MRI

7 testing of the cervical and lumbar spines in January of 2018 and 8 again, it appears, in April of 2019 with mild to moderate 9 results. Plaintiff refused, however, an EMG nerve conduction 10 study and injections, claiming that she is afraid of needles. 11 Plaintiff mentally suffers from depression and anxiety, but has 12 undergone no specialized treatment or psychiatric 13 hospitalization. Plaintiff has undergone chiropractic 14 treatment, as well as physical therapy for her lumbar and 15 cervical spine issues. 16 Plaintiff has treated with Mohawk Valley Nephrology 17 for her history of kidney cysts, Slocum-Dickson Medical Group, 18 including Dr. Kenneth Visalli, who's her primary caretaker, and 19 Dr. Prasanna Kumar. She has also treated with neurologist, 20 Mr. Ramesh Cherukuri, and on one occasion with Dr. Nicholas 21 Qandah on February 5, 2018.

22 In terms of activities of daily living, plaintiff is 23 able to dress, to bathe, although she requires assistance in the 24 shower, groom, drive short distances, watch television, and 25 spend time with family. Her family, however, does most of the 1 cooking, cleaning, and laundry. 2 Procedurally, plaintiff applied for Title II benefits 3 under the Social Security Act on February 5, 2018, alleging an 4 onset date of March 9, 2017. She claims disability based on 5 back issues, high blood pressure, leg and arm pain, 6 fibromyalgia, and kidney cysts. A hearing was conducted by

7 Administrative Law Judge, or ALJ, Elizabeth Koennecke. ALJ 8 Koennecke issued an unfavorable decision on February 20, 2020. 9 That decision became a final determination of the agency on 10 October 20, 2020, when the Social Security Administration 11 Appeals Council denied plaintiff's application for a review. 12 This action was commenced on November 23, 2020, and is timely. 13 In her decision, ALJ Koennecke applied the familiar 14 five-step sequential test for determining disability. She first 15 determined that plaintiff retains insured status through 16 December 31, 2022. At step one, she concluded that plaintiff 17 had not engaged in substantial gainful activity since March 9, 18 2017, her alleged onset date. 19 At step two, she determined that plaintiff does 20 suffer from severe impairments that impose more than minimal 21 limitations on her ability to perform basic work functions,

22 including mild degenerative disc disease of the lumbar spine and 23 the cervical spine, as well as hypertension. 24 At step three, ALJ Koennecke concluded that 25 plaintiff's conditions do not meet or medically equal any of the 1 listed presumptively disabling conditions set forth in the 2 Commissioner's regulations, specifically focusing on listing 3 1.04. After surveying the evidence of record, ALJ Koennecke 4 concluded that plaintiff retains the residual functional 5 capacity, or RFC, to perform light work as defined in the 6 regulations with the exception that she is only able to

7 occasionally stoop. 8 Applying that RFC finding at step four, ALJ Koennecke 9 concluded that plaintiff is incapable of performing her past 10 relevant work as a nurse assistant and proceeded to step five 11 where she concluded based upon the Medical-Vocational Guidelines 12 set forth in the Commissioner's regulations, and specifically 13 guideline or Grid Rule 202.21, that plaintiff is not disabled. 14 In arriving at that determination and after noting 15 the Commissioner's burden of proof at step five, ALJ Koennecke 16 concluded that the additional limitation of only occasional 17 stooping has little or no effect on the occupational base on 18 which the grids are predicated, citing Social Security Ruling 19 83-10. 20 As you know, the Court's function in this instance is 21 to determine two things, whether correct legal principles were

22 applied and whether the resulting determination is supported by 23 substantial evidence, which is defined as such relevant evidence 24 as a reasonable mind would find sufficient to support a 25 conclusion. As the Second Circuit has noted in Brault v. Social 1 Security Administration Commissioner,

from the 2 Second Circuit, 2012, this is a demanding, very deferential 3 standard. And under that standard, once a fact is found by an 4 ALJ, that fact can be rejected only if a reasonable factfinder 5 would have to conclude otherwise. 6 In this case, the plaintiff raises three arguments.

7 First, she claims error in the Administrative Law Judge's 8 weighing of the medical evidence of record, specifically 9 focusing on medical source statements from two treating sources, 10 Dr. Kenneth Visalli and Dr. Ramesh Cherukuri. And that's 11 spelled C-H-E-R-U-K-U-R-I, despite what I said earlier. She 12 also notes that Dr. Wolf found moderate limitations that are 13 inconsistent with light work, and further notes that there was 14 no mention by the Administrative Law Judge of an IME report of 15 Dr. Bradley Wiener who conducted an examination in connection 16 with plaintiff's Workers' Compensation claim. The second 17 argument raised is that the Administrative Law Judge improperly 18 analyzed and considered plaintiff's subjective complaints of 19 symptomology. And the third is that it was error for the 20 Administrative Law Judge to rely on the grids or 21 Medical-Vocational Guidelines without consulting with a

22 vocational expert in order to determine at step five whether 23 there was work available that plaintiff is capable of 24 performing. 25 Because of the date on which this application in this 1 case was filed, the new amended regulations that took effect in 2 March of 2017 apply to consideration of medical opinions in the 3 record. Under those regulations, an ALJ does not defer or give 4 any specific evidentiary weight, including controlling weight, 5 to any medical opinions or prior administrative medical 6 findings, including those from a claimant's medical sources, 20

7 C.F.R. Section 404.1520(c)(A). Instead, an ALJ must consider 8 those opinions and apply relevant factors, including primarily 9 supportability and consistency of those opinions. The ALJ must 10 articulate how persuasive he or she found each medical opinion 11 and must explain how he or she considered the supportability and 12 consistency of those medical opinions. The ALJ may also, but is 13 not required to, explain how he or she considered other relevant 14 factors which are set forth in the regulations. 15 There are five opinions in the record concerning 16 plaintiff's physical capabilities. The first is from -- and I'm 17 not taking these necessarily chronologically, state agency 18 consultant Dr. R. Pradhan from July 3, 2013. It appears in the 19 record as part of Exhibit 2A and also is reiterated in 20 Exhibit 9F. Essentially, that's at page 58 to 72 and 755 to 21 756. It concludes that plaintiff is capable of performing light

22 work, except she can only occasionally stoop. It is fully 23 consistent with the RFC determination. The Administrative Law 24 Judge concluded that Dr. Pradhan's opinion was very persuasive 25 at page 17. 1 I note that while Dr. Pradhan did not examine the 2 plaintiff, nonetheless, his or her opinion being a state agency 3 consultant familiar with the regulations and having reviewed 4 available medical records can supply substantial evidence and 5 can even trump a medical source opinion from a treating source, 6 Heim v. Commissioner of Social Security,

from

7 the Northern District of New York, March 29, 2018, Camille v. 8 Colvin,

from the Second Circuit, 2016, and A.D. 9 v. Commissioner of Social Security,

from the 10 Northern District of New York, June 29, 2018. 11 The second opinion is from Dr. Kautilya Puri from 12 August 9, 2017. It appears at 271 to 275 of the Administrative 13 Transcript. Dr. Puri does find moderate limitations in 14 plaintiff's ability to squat, bend, stoop, and kneel and mild 15 limitations to lifting weights. The administrative -- I'm 16 sorry, the Administrative Law Judge did find the opinion of Dr. 17 Puri persuasive, but noted at page 17 that it would not preclude 18 plaintiff's ability to perform light work. 19 The third is from Dr. Ivan Wolf, June 11, 2018. It 20 appears at 748 to 754 of the Administrative Transcript. Dr. 21 Wolf finds moderate limitations in plaintiff's ability to --

22 among other things, overhead motion of her arms, squatting, 23 repetitive forward bending, kneeling, and climbing. The 24 Administrative Law Judge concluded that the opinion was 25 persuasive at page seven, but, again, did not preclude 1 plaintiff's ability to perform light work. 2 Dr. Kenneth Visalli issued a medical source statement 3 on February -- December 13, 2019. It appears at 818 to 819. It 4 is basically a checkbox form. It is extremely limiting. It 5 limits plaintiff to, for example, lift and carry on an 6 occasional basis less than five pounds, can only stand or walk

7 without leaning or supportive device one hour or less, can only 8 sit for four hours or less in an eight-hour workday, has severe 9 limitations in reaching, handling, fingering, and feeling, and 10 would be likely absent more than four days per month. The 11 Administrative Law Judge found that the opinion was not 12 persuasive, was not consistent with the record, and cited some 13 examples of treatment notes and records that would not support 14 Dr. Visalli's opinion. 15 The fifth was from Dr. Ramesh Cherukuri from 16 January 2, 2020. It appears at 923 to 924. It is, again, on a 17 checkbox form and very limiting, essentially similar to Dr. 18 Visalli's in terms of the limitations noted. ALJ Koennecke 19 found it was not persuasive or consistent with the record at 20 page 18 of the Administrative Transcript. 21 In the first instance, of course, it is for the

22 Administrative Law Judge to weigh conflicting medical opinions, 23 Veino v. Barnhart,

, from the Second Circuit, 2002, 24 and it is not the Court's function to reweigh the medical 25 opinions. 1 In terms of supportability, as the Administrative Law 2 Judge noted, the opinion of Dr. Pradhan that was relied on for 3 the RFC determination is supported by MRI testing, which showed 4 only mild to moderate abnormal findings, the fact that 5 Dr. Cherukuri, plaintiff's neurologist, recommended only 6 conservative treatment, the fact that plaintiff declined EMG and

7 nerve conduction studies, as well as injections, the fact she 8 was referred to physical therapy and chiropractic care, 9 conservative -- relatively conservative treatment, and the fact 10 that the treatment notes do not support the more significant 11 limitations set forth in those two findings from medical source 12 statements from plaintiff's physicians. 13 The only significant supporting treatment note, 14 really, from Dr. Visalli occurs on the day that he rendered his 15 medical source statement. Those two opinions are not consistent 16 with the opinions of Dr. Cherukuri, Dr. Wolf, or Dr. Pradhan. 17 It's -- there is an argument that was raised by the plaintiff 18 that there are limitations in Dr. Puri and Dr. Wolf's medical 19 source statements that were not adopted and included in the RFC. 20 It's well established, however, that an ALJ is not required to 21 adopt every portion of an opinion that is found to be

22 persuasive. In this case, Dr. Pradhan's opinion was found very 23 persuasive and does support the RFC finding. 24 I note, moreover, that if there was error in not 25 including moderate limitations in standing, walking, sitting, 1 lifting, pushing, or pulling, that would be harmless. Such 2 limitations do not preclude the ability to perform light work, 3 Raymonda C. v. Commissioner of Social Security,

, 4 Northern District of New York, January 1, 2020, and April B. v. 5 Saul,

from the Northern District of New York, 6 September 27, 2019.

7 I am unable to say that a reasonable factfinder would 8 have to conclude that plaintiff cannot perform light work with 9 only occasional stooping, White v. Brault -- Berryhill, I'm 10 sorry,

from the Second Circuit, Court of 11 Appeals, February 7, 2019, and Brault, which I cited earlier. 12 In terms of squatting and kneeling, limitations that 13 were opined by Dr. Puri under SSR 83-14, climbing, kneeling, and 14 crawling limitations have little or no effect on light work job 15 base. Similarly, under Social Security Ruling 85-15, squatting 16 and kneeling limitations would similarly have little effect. 17 The moderate -- when it comes to the moderate limitation in 18 reaching, the ALJ accepted Dr. Pradhan's opinion and, obviously, 19 it is in conflict with one medical opinion, but it was for the 20 ALJ to resolve that inconsistency. In any event, if it was 21 error, it was harmless. It was plaintiff's burden to establish

22 the limitation in the ability to overhead reach and that it 23 would preclude light work, and there's no proof that a 24 limitation -- a moderate limitation in overhead reaching would 25 preclude light work, Michael M. v. Saul,

from 1 the -- from the Northern District of New York, December 5, 2019. 2 There was an argument that Dr. Wiener's opinion was 3 not referenced in the -- in the ALJ's decision, which, of 4 course, is true. Dr. Bradley Wiener issued an opinion after 5 conducting an independent medical examination on October 25, 6 2017. It appears at 329 to 334 of the Administrative

7 Transcript. The conclusion reached by Dr. Wiener is that the 8 claimant demonstrates a temporary total disability, however, the 9 claimant's disability is predominantly due to her non-orthopedic 10 conditions. The claimant has poorly controlled hypertension, as 11 well as significant subjective complaints of pain without 12 objective corroboration. The conclusion that plaintiff is 13 incapable of returning to work in any capacity and is 14 temporarily totally disabled, it opines on an issue that is 15 specifically reserved to the Commissioner and there's no duty 16 for the ALJ to weigh that opinion, 20 C.F.R. Section 17 404.1520(b)(C)(3)(i). Although, I would agree that it probably 18 would have been a better practice for the Administrative Law 19 Judge to reference the opinion and to say just that. 20 Nonetheless, I don't find error and if there was error, it is 21 harmless error.

22 In terms of weighing plaintiff's symptomology, what 23 we used to consider or call credibility, an ALJ is required to 24 take into account any subjective complaints by a claimant of 25 pain when a -- making a five step disability analysis, but is 1 not required to blindly accept the subjective testimony of a 2 claimant. Instead, the ALJ retains broad discretion to evaluate 3 a claimant's subjective testimony, including testimony 4 concerning pain and when doing that, must consider a variety of 5 factors which would ordinarily inform the issue of credibility 6 in any context, including the claimant's credibility, his or her

7 motivation, and the medical evidence in the record, and, of 8 course, must explain the finding and must -- the finding must be 9 supported by substantial evidence. 10 Relevant factors to be considered when evaluating a 11 claimant's subjective symptomology claims include daily 12 activities; location, duration, frequency, and intensity of the 13 symptoms; precipitating and aggravating factors; type, dosage, 14 effectiveness, and side effects of any medications taken; other 15 treatment received; and other measures taken to relieve the 16 symptoms. 17 In this case, the Administrative Law Judge followed 18 the two-step protocol that is prescribed for evaluating 19 plaintiff's reported symptomology. The decision of the 20 Administrative Law Judge is entitled to considerable deference, 21 Penfield v. Colvin,

, Second Circuit, 2014.

22 In this case, ALJ Koennecke cited medical findings, 23 mild to moderate findings on MRI testing, the refusal of 24 plaintiff to undergo EMG and nerve conduction studies and to 25 take epidural injections, the inconsistency of those opinions 1 with Dr. Wolf, Dr. Puri, Dr. Pradhan, and the conservative 2 treatment recommended, including by his neurologist. I note 3 that plaintiff was referred to a chiropractor on several 4 occasions as reflected in 347, 764, and 784 of the 5 Administrative Transcript. That, notwithstanding any argument 6 to the contrary by the plaintiff, is a proper consideration when

7 evaluating reports of pain, 20 C.F.R. Section 404.1529, Riley v. 8 Barnhart,

from the Northern District of New

. 10 The last argument is the step five argument. 11 Clearly, it is the Commissioner's burden at step five to 12 determine the availability of work in the -- available in the 13 national economy that plaintiff is capable of performing that 14 can be satisfied by resorting to the medical vocational 15 guidelines. The only additional nonexertional limitation in the 16 RFC is occasional stooping, which under SSR 83-10 and 85-15, 17 does not significantly reduce the job base on which the grids 18 are predicated. Accordingly, I find no error in relying on the 19 grids to find no disability. 20 In sum, I conclude that correct legal principles were 21 applied in this case and the resulting determination is

22 supported by substantial evidence. I will therefore grant 23 judgment on the pleadings to the defendant and order dismissal 24 of plaintiff's complaint. 25 Thank you, both. I hope you have a good afternoon. 1 MR. ANTONOWICZ: Thank you, Judge. 2 MR. LAWRENCE: Thank you. 3 (Time noted: 11:40 a.m.) 4 5 6

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23 24 25 1 2 3 4 CERTIFICATE OF OFFICIAL REPORTER 5 6

7 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 8 NYRCR, Official U.S. Court Reporter, in and for the United 9 States District Court for the Northern District of New York, DO 10 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 11 States Code, that the foregoing is a true and correct transcript 12 of the stenographically reported proceedings held in the 13 above-entitled matter and that the transcript page format is in 14 conformance with the regulations of the Judicial Conference of 15 the United States. 16 17 Dated this 22nd day of June, 2022. 18 19 s/ Hannah F. Cavanaugh______________________ 20 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 21 Official U.S. Court Reporter 22

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