UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

DOMINIC C.,

Plaintiff,

v. 5:21-CV-0124 (ML) COMMISSIONER OF SOCIAL SECURITY,

Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

Pro Se Plaintiff DOMINIC C. 109 Greenapple Lane Minoa, New York 13116

SOCIAL SECURITY ADMINISTRATION JESSICA RICHARDS, 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), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on September 7, 2022, during a telephone conference

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. 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. 16) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 17) 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: September 9, 2022 Binghamton, New York Nrealer Ew Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK _____________________________________ C

vs. 5:21-CV-0124

COMMISSIONER OF SOCIAL SECURITY

_____________________________________

DECISION AND ORDER

September 7, 2022

The HONORABLE MIROSLAV LOVRIC, DISTRICT MAGISTRATE JUDGE

A P P E A R A N C E S

For Plaintiff: D.C., Pro se

For Defendant: JESSICA RICHARDS, ESQ.

Ruth I. Lynch, RPR, RMR, NYSRCR Official United States Court Reporter Binghamton, New York 13901 1 THE COURT: So I will begin my decision as 2 follows. So I begin by indicating that the plaintiff 3 commenced this proceeding pursuant to Title 42 United States 4 Code Section 405(g) to challenge the adverse determination 5 by the Commissioner of Social Security finding that he was 6 not disabled at the relevant times and therefore ineligible 7 for the benefits that he sought. 8 By way of background, and in summary, the Court 9 states as follows: Plaintiff was born in 1956. He is 10 currently approximately 66 years of age. He was 11 approximately 27 years of age at the alleged onset of his 12 disability on December 7th of 1983. Plaintiff is 13 approximately 5 feet 10 inches in height and weighs 14 approximately 195 pounds. Plaintiff was involved in a slip 15 and fall at his workplace on December 7th, 1983, where he 16 had been working selling cars. As a result of that event, 17 plaintiff hurt his back and right ankle. 18 Procedurally, the Court sets forth as follows: 19 Plaintiff applied for Title II benefits on July 19th, 2017, 20 alleging an onset date of December 7th, 1983. 21 Administrative Law Judge John M. Lischak conducted 22 a hearing on June 19th of 2019 which was adjourned and 23 recommenced on November 13th of 2019. Plaintiff was 24 represented by Attorney Anthony DiMartino at the 25 administrative hearings. 1 ALJ Lischak issued an unfavorable decision on 2 March 18th of 2020. That became a final determination of 3 the Agency on December 16th of 2020, when the Social 4 Security Administration Appeals Council denied the 5 plaintiff’s application for review. 6 This action was commenced on February 3rd of 2021, 7 and it is timely. 8 In his decision, ALJ Lischak applied the familiar 9 five-step test for determining disability. 10 At step one, the ALJ concluded that plaintiff had 11 not engaged in substantial gainful activity since 12 December 7, 1983, through December 31 of 1988, which was the 13 date on which plaintiff was last insured. 14 At step two, the ALJ concluded that through the 15 date last insured, plaintiff suffered from a severe 16 impairment that imposed more than minimal limitations on his 17 ability to perform basic work activities, specifically the 18 ALJ noting chronic lumbosacral strain. The ALJ found that 19 plaintiff -- plaintiff’s depression did not cause more than 20 minimal limitations in his ability to perform basic mental 21 work activities and thus was a nonsevere impairment. 22 At step three, the ALJ Lischak concluded that 23 plaintiff’s conditions did not meet or medically equal any 24 of the listed presumptively disabling conditions set forth 25 in the commissioner’s regulations, and the ALJ focusing on 1 listing 1.04 that deals with disorders of the spine. 2 The ALJ next determined that plaintiff retains the 3 residual functional capacity to perform medium work except 4 that plaintiff could only use his feet frequently. He was 5 able to stoop frequently, according to the ALJ. 6 Finally, the ALJ indicated plaintiff was limited 7 to unskilled work due to pain associated with his back 8 impairment. 9 At step four, the ALJ concluded that plaintiff 10 does not have any past relevant work. 11 At step five, the ALJ concluded that considering 12 plaintiff’s age, education, work experience, and RFC, there 13 were jobs that existed in significant numbers in the 14 national economy that he could have performed. 15 Based on the testimony of a vocational expert, the 16 ALJ concluded that, given all of these factors, plaintiff 17 would have been able to perform the requirements of 18 representative occupations such as a laundry worker II, a 19 hospital food service worker, and kitchen helper. As a 20 result, the ALJ concluded that plaintiff was not under a 21 disability at any time from December 7th of 1983 through 22 December 31st of 1988. 23 Now, the Court begins its analysis by setting 24 forth, as the parties know, the Court’s -- this Court’s 25 functional role in this case is limited and extremely 1 deferential. I must determine whether correct legal 2 principles were applied and whether the determination is 3 supported by substantial evidence, which is defined as such 4 relevant evidence as a reasonable mind would find sufficient 5 to support a conclusion. As the Second Circuit noted in the 6 case of Brault V. Social Security Administration 7 Commissioner, and that’s found at

, a 2012 case, 8 the Second Circuit noted therein the standard is demanding, 9 more so than the clearly erroneous standard. The Second 10 Circuit noted in Brault that once there is a finding of 11 fact, that fact can be rejected only if a reasonable 12 fact-finder would have to conclude otherwise. 13 In the plaintiff’s brief, the plaintiff raises the 14 following five contentions: 15 First, plaintiff argues that the ALJ erred in 16 considering the opinion of medical expert Dr. Cohen, who 17 testified that her own opinion was not credible. 18 Second, plaintiff argues that the ALJ did not give 19 proper consideration to the determination of the Workers’ 20 Compensation Board which deemed plaintiff permanently and 21 totally disabled. 22 Third, plaintiff argues that his medical 23 impairments meet or exceed the severity of listing 12.04, 24 which relates to depression disorder. 25 Fourth, plaintiff argues that he was denied the 1 full extent of due process because the Appeals Council 2 denied his request for review. 3 And, fifth, plaintiff argues that there was an 4 error in the decision because it was not supported by 5 credible medical documentation or evidence. 6 The Court notes that plaintiff made other claims 7 that in this Court’s view do not relate to issues before 8 this Court, which is whether plaintiff was disabled during 9 the relevant period under the Act, such as an assertion that 10 any SSDI benefit that plaintiff received would be subject to 11 a workers’ compensation offset and that plaintiff would 12 receive no monetary gain. As set forth in defendant’s 13 brief, those issues are not relevant to the disability 14 determination and they are not before this Court. 15 I start my analysis by setting forth as follows: 16 First, for the reasons set forth in defendant’s brief, I 17 find that the ALJ properly considered and found persuasive 18 the opinions from the testifying experts. Although the 19 gravamen in plaintiff’s brief with respect to the medical 20 experts concerns Dr. Cohen, I note that for the reasons 21 stated in defendant’s brief the ALJ properly found 22 Dr. Kwock’s opinion persuasive. 23 With respect to Dr. Cohen, I find that the ALJ 24 properly found her opinion persuasive. Dr. Cohen testified 25 that the record lacked diagnostic measures which made it 1 difficult to formulate any opinion with respect to 2 plaintiff’s ability to work. In addition, Dr. Cohen 3 testified that conducting diagnostic testing at the present 4 time, some 35 years later, would not assist her in 5 determining plaintiff’s mental functioning during the period 6 in question, that being from December 7, 1983 to 7 December 31, 1988. See docket number 14 at pages 118 8 through 119 and transcript pages 112 through 113. 9 Further, Dr. Cohen explained that although 10 plaintiff refused to engage in a psychological evaluation 11 during the relevant time period, that could be but was not 12 necessarily indicative of a mental health problem. Thus, 13 Dr. Cohen and the ALJ were unable to draw any conclusion 14 from plaintiff’s refusal. 15 Moreover, Dr. Cohen explained that plaintiff’s 16 depression, diagnosis, and treatment did not equate to a 17 disability, which is why diagnostic measures were needed to 18 establish an individual’s functioning. 19 Finally, as the ALJ concluded, Dr. Cohen’s opinion 20 was consistent with one of the few mental status evaluations 21 available, and that completed by Dr. Margo, during which 22 plaintiff provided relevant and coherent answers to 23 questions, had no abnormal thought processes, exhibited 24 average intelligence, had no memory deficits, and was able 25 to perform simple cognitive tasks. 1 For all of these reasons and those stated in the 2 defendant’s brief, I find that the ALJ properly afforded a 3 persuasive weight to Dr. Cohen’s opinion. 4 Second, with respect to plaintiff’s assertion that 5 the ALJ did not give due consideration to the determination 6 of the Workers’ Compensation Board that he is permanently 7 and totally disabled, this Court notes that the standards 8 for disability under workers’ compensation programs are 9 entirely distinguishable from those for Social Security 10 Disability Insurance benefits. See case of Naumov versus 11 Commissioner of Social Security, 539 F.Supp 3rd, 273 at 12 page 275. And that is an Eastern District of New York 2021 13 opinion. Thus, the opinion provided in a workers’ 14 compensation claim is not controlling with respect to a 15 claim of disability claim under the Act. See also case of 16 Urbanak versus Berryhill, 17-CV-5515, that’s a 2018 found at 17 West Law 3750513 at page 24. And it’s a Southern District 18 New York July 18, 2018 case. Accordingly, any treating 19 physician’s determination that plaintiff was totally 20 disabled may well have been true as to his prior employment 21 but cannot be extrapolated to plaintiff’s ability to perform 22 any gainful employment. Again see case of Naumov at 539 23 F.Supp 3d at 275. 24 Third, with respect to the ALJ’s determination at 25 step two, I note the following: Dr. Kwock testified that 1 objective medical evidence did not establish a radiculopathy 2 medically determinable impairment. Thus, the ALJ properly 3 concluded that chronic lumbar sprain was the sole physical 4 medically determinable impairment. 5 The ALJ supportably determined that plaintiff had 6 only a mild limitation in each of the four functional areas 7 set forth in paragraph B. Thus, plaintiff’s mental 8 impairments were deemed nonsevere. 9 Further, to the extent that the ALJ erred in 10 deeming plaintiff’s mental impairment nonsevere, it was 11 harmless error because the ALJ subsequently considered all 12 of plaintiff’s impairments. 13 Fourth, with respect to the ALJ’s determination at 14 step three, for the reasons set forth in defendant’s brief, 15 the ALJ properly determined that plaintiff’s chronic lumbar 16 sprain did not meet the first requirement for listing 17 1.04 because there was no evidence that plaintiff 18 experienced a compromised nerve root or spinal cord. 19 Instead, as the ALJ cited, plaintiff’s medical records 20 reflected normal X-rays, normal CT scan, and normal nerve 21 conduction studies. 22 The Court also notes that listing 1.00 is merely 23 the heading pursuant to which all musculoskeletal disorders 24 fall and plaintiff must meet the requirements for a specific 25 category to be deemed disabled. 1 Moreover, plaintiff’s depression impairment did 2 not meet or equal listing 12.04. Any mental impairment, 3 whether pursuant to listing 12.04 or 12.06 or 12.07, must 4 meet either the paragraph B or C criteria for a finding of 5 disability pursuant to the Act. As I previously stated, the 6 ALJ determined that plaintiff experienced no more than a 7 mild, mild limitation in each of the paragraph B criteria. 8 Further, Dr. Cohen testified that plaintiff did not have 9 more than a moderate limitation in any paragraph B criteria 10 because the sole mental status examination was normal. 11 Thus, plaintiff did not experience an extreme limitation in 12 one of the paragraph B functioning areas or, two, marked 13 limitations in the paragraph B functioning areas. 14 Although the ALJ did not conduct a paragraph C 15 analysis with respect to plaintiff’s nonsevere mental 16 impairment, a court may uphold an ALJ’s finding that a 17 claimant does not meet a listing even where the decision 18 lacks an express rationale for that finding if the 19 determination is supported by substantial evidence. See 20 Elizabeth G. versus Commissioner of Social Security, that 21 can be found at 21-CV-0411, it is a 2022 case, West Law 22 citation 1689551 at page 15. And that’s a Northern District 23 New York May 26th, 2022 case by Magistrate Judge Hummel. 24 And therein Judge Hummel citing -- hello? 25 Miss Richards, you’re still on the line? 1 MS. RICHARDS: I’m still on the line, your Honor. 2 THE COURT: All right. Is plaintiff still on the 3 line? 4 All right. I do not hear the plaintiff. 5 Miss Painter, are you on the line? 6 THE CLERK: I am, Judge. 7 THE COURT: All right. Do we still have our court 8 reporter on the line? 9 THE COURT REPORTER: I’m here, Judge. 10 THE COURT: It appears that plaintiff either hung 11 up or disconnected the call. I’m going to continue on with 12 my -- I’m going to continue with my decision. 13 So the decision by Magistrate Judge Hummel, and 14 therein Judge Hummel cited the case Andrea K. versus 15 Commissioner of Social Security, and that’s found at 16 18-CV-1448, a 2021 case, and the West Law citation is West 17 Law 1224049 at page 6. And that’s a Northern District New 18 York March 31, 2021 case, and that is also issued -- a case 19 issued by Magistrate Judge Hummel. Plaintiff’s depression 20 impairment could not meet the paragraph C criteria because 21 the record did not reflect any mental health 22 hospitalizations or exacerbations of mental health symptoms 23 during the relevant period. Plaintiff possessed more than a 24 minimal capacity to adapt to changes in the work 25 environment. See Gabriel C. versus Commissioner of Social 1 Security, 18-CV-0671, that’s a 2019 West Law case found at 2 West Law 4466983 at page 8, and that is a Northern District 3 New York September 18, 2019 case written by Magistrate Judge 4 Baxter, and therein finding no reasonable fact-finder could 5 have found that plaintiff had marginal adjustment, as 6 examinations showed largely intact functioning, plaintiff 7 had never been hospitalized for a mental episode, and he 8 could complete daily activities such as attending college 9 classes, drive a vehicle, prepare simple meals, socialize 10 with a few close friends, and care for his cat. 11 And again, these are citations to the case as 12 authored by Judge Baxter. 13 As defendant set forth, merely receiving routine 14 treatment for a condition is insufficient to meet the 15 paragraph C criteria. 16 Fifth, with respect to the RFC determination, for 17 the reasons stated in the defendant’s brief, I find that 18 substantial evidence supports the ALJ’s RFC determination. 19 The RFC assessment was more restrictive than Dr. Kwock’s 20 opinion for heavy exertional work. The ALJ supportably 21 found that no mental re -- no mental restrictions were 22 necessary based on plaintiff’s normal mental status 23 examination, the fact that plaintiff felt no need for a 24 psychiatric evaluation because his pain, not his mood, 25 limited his ability to work. In addition, the RFC limited 1 plaintiff to unskilled work which is defined as work that 2 needs little or no judgement -- or no -- little or no 3 judgment to do simple duties that can be learned on the job 4 in a short period of time. 5 Finally, with respect to plaintiff’s claim that he 6 was denied due process, a review of the record shows that 7 plaintiff’s request for review was initially and incorrectly 8 denied as untimely by the Appeals Council on September 11, 9 2020. See docket number 14 at pages 13 through 14. The 10 Appeals Council corrected its error on October 20th of 2020 11 and denied plaintiff’s request on December 16th, 2020. See 12 docket number 14 at pages 1 through 2 and 7 through 8. 13 Plaintiff failed to identify any other due process error in 14 the history of this -- his case. 15 As a result of this analysis, the Court concludes 16 plaintiff’s motion for judgment on the pleadings is denied. 17 Defendant’s motion for judgment on the pleadings is granted. 18 Plaintiff’s complaint is dismissed. And the Commissioner’s 19 decision denying plaintiff benefits is affirmed. 20 This constitutes the decision of this Court. 21 - - - - - 22 23 24 25