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

VINCENT T. M.,

Plaintiff, v. Civil Action No. 5:21-CV-1168 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICES OF JUSTIN M. GOLDSTEIN, ESQ. KENNETH HILLER, PLLC KENNETH R. HILLER, ESQ. 6000 N. Bailey Ave, Suite 1A Amherst, NY 14226

FOR DEFENDANT

SOCIAL SECURITY ADMIN. NATASHA OELTJEN, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235

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 October 25, 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.

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: October 31, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x VINCENT THOMAS M.,

Plaintiff,

vs. 5:21-CV-1168

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on October 25, 2022, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: LAW OFFICE OF KENNETH HILLER, PLLC Attorneys at Law 6000 N. Bailey Avenue - Suite 1A Amherst, New York 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 6401 Security Boulevard Baltimore, Maryland 21235 BY: NATASHA OELTJEN, ESQ.

Jodi L. Hibbard, RPR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and all counsel present by 2 telephone.) 3 THE COURT: Let me begin by commending counsel for 4 excellent and spirited presentations. I found this case to 5 be extremely interesting and I've enjoyed working with you. 6 Plaintiff has challenged a determination of the 7 Commissioner of Social Security finding that he was not 8 disabled at the relevant times and therefore ineligible for 9 the Title II benefits which he sought. His challenge is 10 brought under

(g). 11 The background is as follows: Plaintiff was born 12 in July of 1964 and is currently 58 years old. He was 55 at 13 the alleged onset of his disability in September 2019. He 14 stands 5 foot 10 inches in height and weighs approximately 15 195 pounds. Plaintiff lives in Liverpool in a house with his 16 wife. They have three children all aged 20, apparently 17 triplets, two, at least two are away in college most of the 18 time. Plaintiff earned a bachelor's degree from LeMoyne 19 College in 1986, a master's degree in school psychology in 20 1992, and a master's degree in social work in 1995 21 approximately, he wasn't sure of the exact date. He has a 22 driver's license and reports no problems driving. 23 Plaintiff has worked in various social work and 24 counseling capacities over the years. He worked as a school 25 social worker at the Fulton City School District from 1 August 1 -- August of 2001 to December of 2012. He worked as 2 a school mental health counselor from January of 2013 to 3 September of 2019. He worked for a short period for the 4 State University of New York at Oswego and also at Tompkins 5 County Community College, or TC-3. He apparently, according 6 to AT, administrative transcript 462, left his last regular 7 job in March of 2020. He has also, since January of 1994, 8 had a private consulting business as a counselor and it 9 continues on, although on a more limited basis than prior to 10 his alleged disability. 11 Mentally, plaintiff suffers from depression, it has 12 also been referred to as major depressive disorder, and 13 anxiety. He also claims a learning disability but there 14 doesn't seem to be any evidence to support that diagnosis. 15 Plaintiff was hospitalized for three days for depression in 16 2015 in Upstate Medical Center but since then has had no 17 psychiatric hospitalization. 18 Plaintiff also claims to suffer from a foot drop of 19 his right foot and history of asthma. In 2006, he underwent 20 surgery to address hammertoes and to loosen a tight tendon 21 that he claims resulted in his drop foot. He claims it 22 causes falls two to three times per year. Plaintiff's 23 primary physician is the Family Practice Associates, with 24 Dr. Mark VanHusen being his primary care provider there. He 25 also obtains services from Psychiatric Consultants of Central 1 New York where he sees Doctor of Nurse Practitioner, or DNP, 2 Bambi Carkey every other week approximately. Dr. Carkey has 3 seen the plaintiff since September of 2019. The last record 4 of treatment from Dr. Carkey in the administrative transcript 5 is from February 17, 2021. 6 In terms of activities of daily living, plaintiff 7 is able to dress, groom, bathe, cook, clean, do laundry, 8 shop, drive, socialize with family and friends, cycle, ski, 9 SCUBA, kayak, he watches television, he plays sports, he goes 10 to the gym approximately three times per week, he goes to 11 family vacations including to summer vacations in the 12 Adirondacks, he walks with friends and he works or volunteers 13 at a food bank. 14 Procedurally, plaintiff applied for Title II 15 benefits on October 31, 2019, alleging an onset of disability 16 date of September 5, 2019. In his function report, he 17 claimed disability based on depression and an anxiety 18 disorder and a learning disability. A hearing was conducted 19 on October 28, 2020 by Administrative Law Judge Elizabeth 20 Koennecke to address plaintiff's application for benefits. A 21 supplemental hearing was conducted on April -- I'm going to 22 say 11 but I'm having a hard time reading my notes, 2021 with 23 a vocational expert. On April 19, 2021, Administrative Law 24 Judge Koennecke issued a decision unfavorable to the 25 plaintiff. That became a final determination of the agency 1 on September 22, 2021, when the Social Security 2 Administration Appeals Council denied plaintiff's application 3 for review. This action was commenced on October 27, 2021, 4 and is timely. 5 In her decision, Administrative Law Judge Koennecke 6 applied the familiar five-step test for determining 7 disability. 8 At step one, she concluded that plaintiff had not 9 engaged in substantial gainful activity since the alleged 10 onset of his disability, although noting that he does perform 11 ongoing consultative work but not rising to the level of SGA. 12 At step two, Administrative Law Judge Koennecke 13 concluded that plaintiff suffers from severe impairments that 14 impose more than minimal limitations on his ability to 15 perform work functions, including all mental diagnoses 16 generally characterized as anxiety and depression. 17 At step three, ALJ Koennecke concluded that 18 plaintiff's conditions do not meet or medically equal any of 19 the listed presumptively disabling conditions set forth in 20 the Commissioner's regulations, specifically considering 21 Listings 12.04, 12.06, and 12.11. 22 After surveying all of the medical evidence of 23 record, ALJ Koennecke concluded that plaintiff retains the 24 residual functional capacity, notwithstanding his conditions, 25 to perform a full range of work at all exertional levels with 1 additional mental limitations, nonexertional limitations that 2 I will recite further on in my decision. 3 Applying that finding at step four, ALJ Koennecke 4 concluded that plaintiff is unable to perform the demands of 5 his past relevant work. 6 At step five, with the assistance of a vocational 7 expert's testimony, ALJ Koennecke concluded that plaintiff is 8 capable of performing available work in the national economy 9 as a launderer, which is characterized as a medium exertional 10 position with SVP of 2, and therefore found that plaintiff 11 was not disabled. 12 As you know, the standard of review is extremely 13 deferential. The court must determine whether correct legal 14 principles were applied and substantial evidence supports the 15 determination; substantial evidence being defined as such 16 relevant evidence as a person would find, as a reasonable 17 person would find sufficient to support a conclusion. It is 18 an extremely deferential standard as noted in Brault v. 19 Social Security Administration Commissioner,

20 from the Second Circuit, 2012. As the Circuit noted, this is 21 an exacting standard more so than even the clearly erroneous 22 standard that we are all familiar with, and further noted 23 that under the substantial evidence standard, once an ALJ 24 finds a fact, it can be rejected only if a reasonable fact 25 finder would have to conclude otherwise. 1 As a backdrop, I note additionally that it is 2 plaintiff's burden at the outset to establish limitations 3 resulting from physical and mental conditions and that 4 includes up through the residual functional capacity stage 5 and step four where, after which the burden of proof shifts 6 to the Commissioner. 7 In this case, plaintiff makes two basic 8 contentions. First, he argues that the mental components of 9 the RFC is not supported due to an error in evaluating 10 conflicting medical opinions; and secondly, he argues that 11 the physical RFC is not supported and that his foot drop 12 would limit his ability to stand and walk for four out of 13 eight hours a day as required by the exertional component of 14 the RFC, and further argues that the administrative law 15 judge, based upon his testimony at the second hearing, 16 undertook a duty to investigate further and failed to fill 17 the gap created in the record. 18 Turning first to the second contention regarding 19 the foot drop, I note as an initial matter that there was no 20 claim in either the functional report submitted on behalf of 21 the plaintiff and apparently prepared by his former attorney 22 or at the first hearing that he suffers from any physical 23 impairment. At the first hearing he claimed only that it was 24 depression that caused his inability to work, that's at page 25 45 of the administrative transcript. He did raise the issue 1 at the second hearing. There is evidence in the record that 2 plaintiff underwent right foot surgery to lengthen a tendon 3 in 2006, that's at 9F of the administrative transcript. The 4 administrative law judge considered the argument and rejected 5 it, specifically stating her reasoning for doing so at step 6 two, that's at page 14 of the administrative transcript. 7 At step two, the court -- the administrative law 8 judge must determine whether an impairment is sufficiently 9 severe to significantly limit a claimant's physical and 10 mental ability to do basic work activities. 20 C.F.R. 11 Section 404.1521a. Basic work activities are defined to 12 include the abilities and aptitudes necessary to do most 13 jobs. It is a modest requirement, de minimus, and intended 14 only to screen out the truly weakest of cases. 15 In this case, it is of course, as I noted, 16 plaintiff's burden to show that he suffers from limitations. 17 The administrative law judge did not outright reject 18 considering the foot drop, despite it not having been brought 19 up. I note that there is no evidence of any records 20 associated with plaintiff's foot drop condition that were 21 proffered by plaintiff or his counsel to the agency and 22 rejected. In fact at the second hearing, the new counsel for 23 the plaintiff stated that there was no objection to the 24 record exhibits. 25 Instead, the administrative law judge went on to 1 testify -- or to find that as one factor, the plaintiff did 2 not, when making his application for benefits, claim this, 3 nor did he at the initial hearing when asked why you can't 4 work. There are podiatry records, including of the surgery, 5 but the last one that specifically addresses it is from 2008, 6 and it is the result of an MRI testing that was performed on 7 March 26, 2008, it appears at 544 of the administrative 8 transcript. It was to probe plaintiff's partial foot drop 9 and the impression from that MRI testing was "normal". The 10 administrative -- As the administrative law judge also noted, 11 claimant worked over a decade without -- after he underwent 12 the foot surgery. He reports that he does very well. There 13 are at least two instances where he was observed to have a 14 normal gait by Dr. Carkey. 15 The plaintiff's activities of daily living greatly 16 undermine the claim that his foot drop would impair him from 17 performing work activities. He goes to the gym three times a 18 week, he walks with friends, he's able to drive without 19 problems, he goes on vacation with his friend, in fact even 20 he testified at most it would cause him to fall maybe two or 21 three times a year, and he did not testify to my recollection 22 of also being unable to stand for periods of time because of 23 his foot drop. He does not use an ambulatory device such as 24 a cane or a brace. And so I don't find any error in the 25 administrative law judge's finding that plaintiff did not 1 establish at step two that he suffered from a severe 2 impairment, severe physical impairment. I note that, I 3 reviewed Dr. VanHusen's notes at 6F, and other than in the 4 medical history section, there doesn't appear to be any 5 mention of a foot drop. There's no indication of any 6 treatment after 2008. 7 It is plaintiff's burden to supply medical records. 8 The agency only is responsible to develop a complete medical 9 history of at least 12 months preceding the filing of 10 plaintiff's application; in this case that was October 31, 11 2019. 20 C.F.R. Section 404.1512. I note also that a 12 plaintiff cannot, cannot support a finding of a diagnosed 13 condition by simply his or her testimony regarding symptoms. 14 Winchell v. Colvin,

from the Northern 15 District of New York, August 28, 2014. I note that while it 16 was not the sole reason for rejecting the foot drop, the 17 administrative law judge also properly considered that it was 18 never included in plaintiff's original claims of why he was 19 disabled. Stephen A. v. Commissioner of Social Security, 20

from the Western District of New York, 21 March 23, 2021. So I do not find merit in plaintiff's step 22 two argument. 23 Turning to the first argument, plaintiff challenges 24 the residual functional capacity finding. So an RFC 25 represents finding of the range of tasks a plaintiff is 1 capable of performing notwithstanding his impairments and it 2 ordinarily means a claimant's maximum ability to perform 3 sustained work activities in an ordinary setting on a regular 4 and continuing basis, meaning eight hours a day for five days 5 a week or an equivalent schedule. And of course an RFC is 6 informed by consideration of all of the relevant medical and 7 other evidence and must be supported by substantial evidence. 8 In this case, as I indicated, the administrative 9 law judge included a rather restrictive residual functional 10 capacity to address plaintiff's mental health condition. He 11 limited the claimant to understand and follow simple 12 instructions and directions, perform simple tasks 13 independently, maintain attention and concentration for 14 simple tasks, regularly attend to a routine and maintain a 15 schedule, relate to and interact appropriately with all 16 others to the extent necessary to carry out simple tasks and 17 handle simple repetitive work-related stress in that he can 18 make occasional decisions directly related to the performance 19 of simple tasks involving goal-oriented work rather than work 20 involving a production pace. 21 The medical evidence supports the determination. 22 When considering the administrative law judge's evaluation of 23 the record opinions, I note that the analysis is informed by 24 the new regulations that went into effect for applications 25 filed after March of 2017. Under those regulations, an ALJ 1 does not defer or give any specific evidentiary weight, 2 including controlling weight, to any medical opinions or 3 prior administrative medical findings, including those from a 4 claimant's medical sources. Instead, an ALJ must consider 5 those opinions using, applying the relevant factors and 6 particularly must consider the factors of supportability and 7 consistency of those medical opinions. Under the 8 regulations, the ALJ must articulate how persuasive he or she 9 found each medical opinion and must explain how he or she 10 considered the supportability and consistency of those 11 medical opinions. The ALJ is also required to consider the 12 other relevant factors set forth in the regulations but is 13 not required to explain how he or she considered those 14 factors. In this case -- and of course, the overarching 15 consideration is that it is for the administrative law judge 16 in the first instance to evaluate and weigh any conflicting 17 reports, to the extent that there are any. Veino v. 18 Barnhart,

, from the Second Circuit December 10, 19 2002. 20 In this case there are several medical opinions in 21 the record. Dr. T. Bruni issued what is actually considered 22 a prior administrative finding but it is subject to the 23 regulations, on July 11, 2020, it appears at pages 76 through 24 88 of the administrative transcript. The administrative law 25 judge considered that opinion and at page 13 found it to be 1 "more persuasive". The opinion -- the worksheet of, at 2 Section 1 of the mental residual functional capacity opinion 3 does note moderate limitations in certain areas: The ability 4 to maintain attention and concentration for extended periods; 5 the ability to complete a normal workday and workweek without 6 interruptions from psychologically-based symptoms; and to 7 perform at a consistent pace without an unreasonable number 8 and length of rest periods. However, the mental residual 9 functional capacity finding, the opinion of Dr. Bruni was, 10 despite these limitations, the claimant retains the mental 11 residual functional capacity as follows: Understanding and 12 memory, the claimant is able to understand and remember 13 simple and detailed instructions and procedures; sustained 14 concentration and persistence, the claimant exhibits some 15 difficulty but overall can maintain adequate attention and 16 concentration to complete work like procedures and can 17 sustain a routine. There are also findings with regard to 18 social interaction and adaptation which I don't think are at 19 issue in this case. That is fully consistent with a residual 20 functional capacity. 21 The opinion of Dr. Jeanne Shapiro, consultative 22 examiner, also supports the residual functional capacity 23 finding. She issued an opinion after a consultative 24 examination of the plaintiff on December 16, 2020. It 25 appears at 513 to 520 of the administrative transcript. As 1 is relevant in her medical source statement, she finds that 2 mild to moderate limitations sustaining concentration and 3 performing tasks at a consistent pace depending on his level 4 of anxiety; mild to moderate limitations sustaining an 5 ordinary routine and regular attendance at work due to lack 6 of motivation. Dr. Shapiro also in her medical source 7 statement found moderate to marked limitations regulating 8 emotions, controlling behaviors, maintaining well being. The 9 administrative law judge rejected any marked limitations in 10 that area and offered an adequate explanation as to why, but 11 in the areas that we're discussing here, attention and 12 concentration, and attendance at work, the medical source 13 statement is consistent with the residual functional capacity 14 finding. 15 I note that in the medical source statement that is 16 attached to the report, pages 518 to 520, basically there are 17 no limitations noted in plaintiff's ability to understand, 18 remember and carry out instructions and at most, moderate -- 19 mild to moderate in interacting with public, interacting 20 appropriately with supervisors and interacting with 21 coworkers, and that is all the more consistent with the 22 residual functional capacity finding. 23 As I indicated, it is -- that opinion is discussed 24 by the administrative law judge at pages 17 and 18 of her 25 opinion. She found it persuasive but did reject, as I 1 indicated, the moderate to marked limitation, particularly in 2 reliance on the attachment which didn't include limitations 3 to that extent. 4 The administrative law judge also considered three 5 opinions offered by Dr. Carkey. The first was from July 3, 6 2020 and it is a more narrative form. It indicates mental 7 status, subdued attitude, appearance and behavior appears at 8 pages 450 to 453. It is also repeated at 482 to 485. It 9 describes mood and affect as dysthymic and restricted but 10 attention and concentration is primarily within normal limits 11 with some issues and orientation, memory, information are all 12 within normal limits; insight and judgment is described as 13 fair. At page 452, Dr. Carkey opines that plaintiff is 14 unable to work based on five-by-five of major depression 15 disorder and of course that is an opinion given on a matter 16 that was reserved to the Commissioner. 17 On August 6, 2020, Dr. Carkey filled out a mental 18 capacity assessment that appears at 478 to 480 of the record. 19 In understanding, remembering, or applying information, she 20 rates the plaintiff as moderately limited in all of the four 21 sub areas. In concentrating, persistence or maintaining 22 pace, also moderately limited in the six specified areas, 23 those being the two sub areas that are at issue here. 24 Moderate is described, is defined as, "Your functioning in 25 this area independently, appropriately, effectively, and on a 1 sustained basis is fair." The administrative law judge 2 considered that this was consistent with her RFC finding and 3 I agree. The opinion is at least somewhat supported. 4 The third one that is given by Dr. Carkey is from 5 March 17, 2021. It appears at 571 to 573 of the 6 administrative transcript. And I have to disagree with, 7 respectfully, plaintiff's counsel. I believe that it is not 8 similar to the earlier opinion from August 6, 2020. It lists 9 several areas in which plaintiff is rated as unable to meet 10 competitive standards, including remember work like 11 procedures, maintain regular attendance and be punctual 12 within customary usually strict tolerances, complete a normal 13 workday and workweek without interruptions from 14 psychologically-based symptoms, respond appropriately to 15 changes in a routine work setting and deal with normal work 16 stress. That term, unable to meet competitive standards, 17 means, is defined to mean, "Your patient cannot 18 satisfactorily perform this activity independently, 19 appropriately, effectively and on a sustained basis in a 20 regular work setting." That opinion does not seem to support 21 the residual functional capacity. It was addressed by the 22 administrative law judge and found to be inconsistent and 23 unsupported. 24 I note that there are treatment records from the 25 plaintiff, plaintiff's treatment with Dr. Carkey extending 1 from when she was first consulted in 2019, September of 2019 2 and extending through to February 17, 2021. They appear at 3 administrative transcript Exhibits 1F, 4F, and 10F. I've 4 reviewed them extremely carefully. And although there are a 5 smattering of treatment notes that reflect some sort of 6 thought or ideation of suicidal tendencies, the vast majority 7 are of plaintiff denying it. They do not reflect any 8 material deterioration in plaintiff's condition that would 9 explain the disparity between the second and third opinions 10 from Dr. Carkey. In fact many of them from August 20, 2020 11 note that the plaintiff feels better, his attention and 12 concentration is fair. There are references to plaintiff's 13 mood and affect being dysphoric or dysthymic, but for 14 example, September 3, 2020, 567, plaintiff's feeling a little 15 bit better and hopeful, fair judgment, he denies suicidal 16 ideation; September 17, 2020, 566, doing better but not a 17 hundred percent, not ready to work, denies suicidal ideation, 18 otherwise within normal limits with the exception of mood and 19 affect being dysthymic; September 30, 2020 at 565, little 20 less depressed, denies suicidal ideation, mood and affect 21 reported dysthymic, otherwise within normal limits; 22 August 13, 2020 at 564, plaintiff's not ready to work yet, 23 denies suicidal ideation, mood and affect dysthymic, 24 otherwise within normal limits; October -- I'm sorry, 25 September -- November 3, 2020, feeling a little better, still 1 depressed, good and bad days, within normal limits, almost 2 exclusively denies suicidal ideation and mood and affect 3 described as dysphoric; December 3, 2020, he reports that his 4 sister died and his mother was dying of COVID, he reported 5 walking with friends, no abnormal psychotic thoughts, 6 short-lived suicidal ideation, mood and affect dysthymic; 7 December 22, 2020 still depressed but getting better, thought 8 process less negative, judgment improving, attention and 9 concentration fair, denies suicidal ideation, mood and affect 10 dysthymic, insight fair. The entry from January 6, 2021, 11 feeling a little better, that's at 560, good and bad days, 12 monotone speech, good judgment, good attention and 13 concentration, mood and affect, feeling better but 14 restricted, good insight, walks -- reported walking with 15 friends; January 28, 2021, 559, feeling okay, feeling better, 16 no abnormal psychotic thoughts, judgment good, denies 17 suicidal ideation, mood and affect depressed, good insight; 18 February 17, 2021 at 558, okay, some rough days, try to stay 19 busy, regular exercise, mood improves with activity and 20 interaction, good judgment, no abnormal thoughts, attention 21 and concentration attentive, fluctuating suicidal ideation 22 with depression, insight good, mood and affect dysphoric. 23 So there isn't any explanation in the treatment 24 notes. The treatment notes support the rejection of the 25 latter more restrictive opinion from Dr. Carkey. 1 The RFC, in addition to being supported by the 2 medical opinions of Dr. Bruni, Dr. Shapiro, and somewhat by 3 Dr. Carkey, it is also supported by, and the treatment 4 records that I've just recited, plaintiff's robust activities 5 which include cycling, skiing, SCUBA, kayak, going to the 6 gym, walking with friends, taking trips with the family 7 including two vacations to the Adirondacks, socializing and 8 volunteering at a food bank. As the administrative law judge 9 also noted, plaintiff's continuing private practice work is 10 also, also undermines -- or supports I should say, put it the 11 other way around, the RFC, and the lack of any psychiatric 12 hospitalization during the relevant period, none since 2015. 13 So -- and I note when we talk about moderate limitations, 14 moderate limitations are not inconsistent with the ability to 15 perform simple unskilled work. James R. v. Berryhill, 2018

from the Northern District of New York, 17 September 10, 2018. As I said, Dr. Bruni found moderate 18 limitations in his worksheet but concluded in his residual 19 functional capacity opinion the plaintiff could perform 20 unskilled work. Dr. Shapiro only found mild to moderate 21 limitations in the functional areas that we're discussing. 22 And Dr. Carkey similarly finds only moderate limitations in 23 her second opinion. Those opinions all support the residual 24 functional capacity finding. The James R. case I cited to 25 already and Shari L. v. Kijakazi,

from the 1 Northern District of New York, February 24, 2020. 2 The plaintiff argues that a moderate to marked 3 limitation in sustaining routine should result in the finding 4 that plaintiff would be absent two or more times per month. 5 Similar arguments have been rejected by the courts including 6 in Becky Sue H. v. Commissioner of Social Security,

7367082 from the Northern District of New York, December 15, 8 2021. As the court noted in Lowry v. Commissioner of Social 9 Security,

from the Northern District of 10 New York, March 16, 2017, this implicates the ability to 11 concentrate and persist and a moderate limitation in those 12 areas, once again, does not preclude unskilled work. 13 Plaintiff argues that because those opinions were 14 accepted, all of the limitations set forth in those opinions, 15 including specifically Dr. Shapiro, should have been included 16 and taken into account in the RFC and of course the mere fact 17 that an ALJ chooses to credit an opinion does not require the 18 ALJ to accept each and every limitation set forth in that 19 opinion. 20 In sum, I think that the RFC is adequately 21 supported by substantial evidence. Plaintiff's challenge to 22 the evaluation of the conflicting medical opinions, to the 23 extent they do conflict, represents nothing more than an 24 invitation for the court to reweigh conflicting evidence, 25 something that is of course entrusted to the Commissioner. 1 So in conclusion, I find that the correct legal 2 principles were applied, substantial evidence supports the 3 resulting determination. I will therefore grant judgment on 4 the pleadings to the defendant and order dismissal of 5 plaintiff's complaint. 6 Thank you both, I hope you have a good afternoon. 7 MR. GOLDSTEIN: Have a good afternoon. 8 MS. OELTJEN: Thank you. 9 (Proceedings Adjourned, 3:19 p.m.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RPR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 27th day of October, 2022. 17 18 19 /S/ JODI L. HIBBARD

20 JODI L. HIBBARD, RPR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25