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

DANIELLE B.,

Plaintiff, v. Civil Action No. 1:22-CV-0471 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT

SOCIAL SECURITY ADMIN. FERGUS J. KAISER, 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) and 1383(c)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on August 2, 2023, 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: August 4, 2023 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x DANIELLE B.,

Plaintiff,

vs. 1:22-CV-471

COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on August 2, 2023, 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 OFFICES OF KENNETH HILLER, PLLC Attorneys at Law 6000 North Bailey Avenue - Suite 1A Amherst, New York 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Program Litigation, Office 2 6401 Security Blvd. Baltimore, Maryland 21235 BY: FERGUS J. KAISER, 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 thanking counsel for 4 excellent and very spirited presentations. I've enjoyed 5 working with you on this matter. 6 The plaintiff has commenced this proceeding 7 pursuant to

(g) and 8 1383(c)(3) to challenge an adverse determination by the 9 Acting Commissioner of Social Security, finding that she was 10 not disabled at the relevant times and therefore ineligible 11 for the benefits for which she applied. 12 The background is as follows: Plaintiff was born 13 in September of 1985. She is currently 37 years old. She 14 was 33 years of age at the alleged onset of her disability on 15 October 1, 2018. The record is somewhat equivocal as to 16 whether she is currently married. The record is also 17 somewhat equivocal concerning her living arrangements. She 18 has lived in a motel and a homeless shelter in Rensselaer. 19 She has a disabled son who was 16 years of age at one point, 20 there's reference to a 15-year-old daughter but it's unclear 21 the relationship that she has with the daughter. Plaintiff 22 stands 5 feet in height and weighs 180 pounds. She has an 23 11th grade education and while in school attended regular 24 classes. Plaintiff does not drive but does take public 25 transportation. She did have a felony driving while 1 intoxicated conviction in or about 2010 which may explain why 2 she does not drive. 3 Plaintiff suffers physically from idiopathic 4 angioedema which I understand is a reaction to a trigger that 5 causes swelling in the tissue below the inner layer of the 6 skin called the dermis or the layer below a mucous membrane. 7 There are different types of angioedema. She suffers from 8 idiopathic angioedema which is angioedema that has no known 9 cause and can result in swelling to the face, hands, trunk, 10 arms, and legs. She also suffers from allergies, asthma, 11 obesity, back pain, and headaches. 12 Mentally, plaintiff has had various diagnoses, 13 including depression, anxiety, panic attacks, an affective 14 disorder, and post-traumatic stress disorder/trauma/stress. 15 Plaintiff stopped working on August 1, 2019, 16 although there is indication of potentially subsequent work 17 and clear efforts by the plaintiff to obtain medical 18 clearance to return to work. While employed, plaintiff 19 worked as a baby-sitter, cashier, personal care assistant, 20 waitress, and housekeeper. 21 Plaintiff receives treatment from Whitney Young 22 Health Services where she began treating in July of 2019 23 primarily with Dr. Robert Weissberg and Family Nurse 24 Practitioner Jennifer McBain. She also has visited the 25 Samaritan Hospital of Troy and the Albany Medical Center and 1 some other specialists. She undergoes telephone 2 consultants -- consultations monthly. 3 In terms of activities of daily living, again, the 4 record is a little ambiguous or unclear. She can dress, 5 bathe, groom, at some point she states she can cook and at 6 other points in the record she denies cooking. She can 7 clean, do laundry, she does not shop, she has no hobbies, 8 does not watch television or listen to the radio, and she 9 says that she does not socialize with friends. 10 Procedurally, plaintiff applied for Title II and 11 Title XVI benefits on April 24, 2015. That prior application 12 was denied on November 1, 2017 in an administrative law judge 13 decision. Most recently, she applied again on June 10, 2019 14 for Title II and Title XVI benefits, alleging an onset date 15 of October 1, 2018 and claiming disability as result of 16 idiopathic angioedema, anxiety, and asthma. A hearing was 17 conducted to address those applications on November 23, 2020, 18 by Administrative Law Judge, or ALJ, Arthur Patane. On 19 December 4, 2020, at the ALJ's request, a vocational expert 20 submitted written interrogatory responses to questions posed. 21 A subsequent hearing was conducted on March 13, 2021, and the 22 result was an adverse determination issued on April 2, 2021 23 by Administrative Law Judge Patane. That became a final 24 determination of the agency on March 8, 2022 when the Social 25 Security Administration Appeals Council denied plaintiff's 1 application for review of that determination. This action 2 was commenced on May 6, 2022, and is timely. 3 In his decision, ALJ Patane applied the familiar 4 five-step sequential test for determining disability. 5 At step one, while noting that there might be 6 activity and unreported income since October 1, 2018, he 7 nonetheless gave the plaintiff the benefit of the doubt and 8 found that she had not engaged in substantial gainful 9 activity since the alleged onset date. 10 At step two, ALJ Patane concluded that plaintiff 11 does suffer from severe impairments that impose more than 12 minimal limitations on her ability to perform basic work 13 functions, including idiopathic angioedema, asthma, obesity, 14 affective disorder, anxiety disorder, trauma, and 15 stress-related disorder. 16 At step three, he concluded that plaintiff's 17 conditions do not meet or medically equal any of the listed 18 presumptively disabling conditions, specifically focusing on 19 3.03 dealing with asthma, Social Security Ruling 19-2p 20 addressing obesity, 14.00 generally addressing angioedema, as 21 well as 12.04, 12.06, and 12.15 related to plaintiff's mental 22 impairments. 23 ALJ Patane next concluded based on the record that 24 plaintiff is capable of performing light work notwithstanding 25 her impairments as defined in the regulations except she must 1 avoid concentrated levels of respiratory irritants, she can 2 interact frequently with others and is limited to unskilled 3 simple work tasks and will be off task 5 percent of a 4 workday. 5 Applying that residual functional capacity at step 6 four, Administrative Law Judge Patane concluded that 7 plaintiff is not capable of performing her past relevant 8 work, listing the various positions that she held. 9 Proceeding to step five with the benefit of the 10 testimony of a vocational expert and a hypothetical posed to 11 that expert that tracked or mirrored the residual functional 12 capacity finding, ALJ Patane concluded that plaintiff is 13 capable of performing available work in the national economy, 14 citing as representative positions those of silverware 15 wrapper, marking clerk, and survey worker, and thus concluded 16 that plaintiff was not disabled at the relevant times. 17 The plaintiff in this case is obviously a 18 sympathetic character and I empathize with her homelessness 19 and her situation and her physical and mental conditions. 20 Nonetheless, my task is extremely limited and the standard I 21 apply is highly deferential. I must determine whether 22 substantial evidence supports the resulting determination, 23 that being defined as such relevant evidence as a reasonable 24 person would find sufficient to support a conclusion, and I 25 must also ensure that proper legal principles have been 1 applied. The standard that I apply is stringent, as the 2 Second Circuit noted in Brault v. Social Security 3 Administration Commissioner,

, from June of 2012, 4 and reiterated many times since, including most recently in 5 Schillo v. Kijakazi,

from April 6, 2022. 6 The plaintiff's contentions in this case are 7 basically four. She focuses on the RFC finding and 8 specifically the time that she would be off task and the 9 number of days she would be absent, as well as the frequent 10 interaction with others limitation in the RFC, alleging that 11 they are not supported by substantial evidence and that there 12 should have been a recognition of absenteeism and a greater 13 recognition of off-task time. 14 Second, and these are intertwined, she challenges 15 the administrative law judge's evaluation of medical 16 opinions, including especially from Dr. Robert Weissberg and 17 Nurse Practitioner Jennifer McBain, that's primarily 17F 18 exhibit. 19 Third, she challenges the administrative law 20 judge's determination regarding her subjective symptomology 21 complaints. 22 And fourth, she argues that there is no support for 23 a light work finding because the state agency consultants 24 opined that she is capable of performing medium work. 25 Turning first to the RFC finding, of course pivotal 1 to any disability determination is the RFC finding which 2 represents a range of tasks a plaintiff is capable of 3 performing notwithstanding her impairments. And that means a 4 claimant's maximum ability to perform sustained work 5 activities in an ordinary setting on a regular and continuing 6 basis, meaning eight hours a day for five days a week or an 7 equivalent schedule. A determination concerning RFC must be 8 informed and supported by consideration of all relevant 9 medical and other evidence. 10 The focus, at least primarily, is upon the 11 administrative law judge's weighing of the various medical 12 opinions. The plaintiff argues that all of them were 13 rejected -- I'm not sure that that's the case. I read it 14 instead that certainly portions of all or most of the medical 15 opinions in the record were discounted, but many portions 16 were cited as supportive of the RFC finding. Evaluation of 17 medical opinions is subject to new regulations under which an 18 ALJ no longer defers or gives any specific evidentiary 19 weight, including controlling weight, to any medical opinion 20 or prior administrative medical findings, including those 21 from a claimant's treating sources. 20 C.F.R. Sections 22 404.1520c(a) and 416.920c(a). In evaluating medical 23 opinions, an ALJ must now apply relevant factors, including 24 particularly considering the questions of supportability and 25 consistency of those medical opinions, and must articulate 1 how persuasive he or she found each opinion and must explain 2 how he or she considered the supportability and consistency 3 of those medical opinions. There are other factors which an 4 ALJ should consider but need not specifically address in his 5 or her decision. And of course, the weight to give 6 conflicting medical opinions is a matter entrusted to the 7 administrative law judge in the first instance and should not 8 be overridden by the court necessarily, unless it lacks 9 rational basis and substantial evidence. Veino v. Barnhart, 10

from 2002. 11 In terms of attendance and off task, the 12 plaintiff's position appears to be primarily that flare-ups 13 of her angioedema would cause her to be off task and absent. 14 And I certainly agree that this is a relevant consideration 15 if there is, if there is support for a finding that the 16 flare-ups would interfere with the ability to perform work 17 functions on a regular basis. Perez v. Astrue,

2496585 from the Eastern District of New York, August 14, 19 2019. The plaintiff testified to experiencing swelling 27 20 days per month, but careful review of the medical treatment 21 records does not bear out that claim. And one prime example 22 is a treatment note from Nurse Practitioner McBain from 23 September 8, 2020 that appears at 591 to 594, it's one that 24 has been heavily relied on by the plaintiff because it does 25 reference missing work. However, it also notes the 1 following: She, meaning plaintiff, reports she is feeling 2 okay, asthma and allergies are under control, reports last 3 episode was two, three months ago when she was first in a 4 homeless shelter and she was at medical -- Albany Med for 5 observation overnight and prior to that it had been almost a 6 year since an episode. 7 Later on, it also notes plaintiff is okay to work 8 as symptoms are well controlled, plaintiff is aware to avoid 9 triggers and keeps Albuterol inhaler and Epipen on her at all 10 times. Patient knows she can work but may need to take a 11 sick day periodically. The -- those quotes indicate -- oh, 12 and by the way, parenthetically there is a provision 13 concerning irritants in the RFC finding. The taking a sick 14 day periodically is not quantified in that particular 15 treatment note. Plaintiff argues that Nurse Practitioner 16 McBain should have been recontacted to inquire as to the 17 quantification of that, but a duty to recontact is only 18 required if the record contains insufficient evidence to 19 determine disability, 20 C.F.R. Section 416.920b(b). And I 20 also note that I agree with the Commissioner that this 21 probably does not technically qualify as a medical opinion 22 under the new regulations. 23 There is reference to missing documents. Plaintiff 24 argues that the social services records, food stamps and 25 welfare from state agencies should have been obtained and are 1 missing. It's unclear specifically what those documents are 2 and how they would be potentially relevant to plaintiff's 3 ability to perform basic work functions. The Social Security 4 applications are in the record, and in any event, it's 5 plaintiff's burden to come forward with evidence to prove 6 disability. There's no indication during the hearing that 7 plaintiff's representative argued that these should be 8 obtained and are relevant or that the record was incomplete. 9 The plaintiff quarrels with the administrative law 10 judge's observation that plaintiff may have worked and 11 certainly sought work clearances during the relevant period. 12 That is clearly borne out, July -- let's see, October 25, 13 2018, 654 of the record; April 30, 2019, 699 of the record; 14 June 21, 2019, 718 of the record; July 30, 2019, 721 in the 15 record; September 8, 2020, 591 of the record. In any event, 16 any error in finding that plaintiff was capable of and trying 17 to work and may have worked is harmless because, at step two, 18 the Commissioner, the ALJ that is, gave plaintiff the benefit 19 of the doubt and found that she had not engaged in 20 substantial gainful activity. 21 Plaintiff argues that these may have been failed 22 work attempts which further her claim that she cannot work. 23 There's no evidence that she has presented as to what those 24 positions were, why she couldn't work in those positions, and 25 why that would translate to a total inability to perform work 1 in any position. 2 One of the focuses of plaintiff's argument is on 3 the medical opinion that appears at 728 through 730 of the 4 record. It bears the signature of Nurse -- I'm sorry, of, 5 yes, Nurse Practitioner McBain although it contains the -- 6 also the information of Dr. Weissberg, it was attributed by 7 the -- it is dated February 2, 2021, was attributed by the 8 administrative law judge to Dr. Weissberg. The opinion 9 states that plaintiff is seriously limited but not precluded 10 in the ability to complete a normal workday and workweek 11 without interruptions from psychologically-based symptoms, 12 and in being aware of normal hazards and taking appropriate 13 precautions and is unable to meet competitive standards in 14 dealing with normal work stress. It also opines that 15 plaintiff would be absent about four days per month. 16 The administrative law judge addressed it in the 17 decision on page 23 and found it to be partially persuasive. 18 The reasoning given: One, the author appears to have relied 19 substantially on uncorroborated subjective reports when 20 opining she would be absent four days per month, would need 21 unscheduled indeterminate breaks, could walk about two blocks 22 and could stand at only 45-minute intervals. As Commissioner 23 noted, I agree that subjective reports are important, 24 particularly in mental health cases, but the word 25 uncorroborated qualifies that sentence, and secondly, it's 1 only one of four reasons given. 2 Second is plaintiff's longitudinal primary care and 3 immunology clinical findings have been within normal limits; 4 three, the claimant endorsed control of her condition in 5 appointments in the months leading up to the assessment; and 6 four, the only visit in the month prior related to another 7 condition, TMJ, without active angioedema or asthma 8 complaints, while medications had established good control of 9 her disorders, and she repeatedly affirmed her belief that 10 she could work in seeking medical clearances. 11 I also note that the -- I understand that the fact 12 that an opinion is given on a check-box form in and of itself 13 and standing alone is insufficient to reject or discount it; 14 nonetheless, this opinion, other than listing diagnoses, does 15 not explain the reasoning why plaintiff, for example, would 16 be absent four days per month, and that is a factor that is 17 proper, in my view, to take into consideration the lack of an 18 explanation by the treating source or the author of the 19 document. 20 As the administrative law judge points out, the 21 Whitney Young treatment notes don't bear out what these 22 opinions show. Longitudinal findings have been mostly 23 normal. There were sporadic ER visits by the plaintiff. I 24 quantify it at, one time in 2017, five times in 2018, nine 25 times in 2019, and one time in 2020. In most of those 1 instances she was treated and discharged. I note that at 2 least three of them appear to have been for the purpose of 3 obtaining a return-to-work note, that is July 30, 2019, 4 October 25, 2018, that was a physical exam for a new job with 5 no other complaints, and April 30, 2019, return-to-work 6 clearance with no complaints. And others of those were for 7 non-angioedema reasons. Headaches, February 7, 2020; chest 8 pain, February 26, 2019; chest pains, March 17, 2018. The 9 medical records, as the ALJ found, just do not substantiate 10 plaintiff's claims. 11 It is true that the administrative law judge did 12 not incant those important words, supportability and 13 consistency; however, I am able to glean the administrative 14 law judge's reasoning on those issues from the record and the 15 mere fact that they are not referenced alone does not provide 16 a basis to find legal error. Maria S. v. Kijakazi,

4619861 from the Northern District of New York, September 30, 18 2022. 19 The plaintiff has cited some notes that reflect 20 greater symptomology but it's not a sufficient basis to 21 override the administrative law judge's decision. My role is 22 to determine whether substantial evidence supports the 23 resulting determination. It is up to the administrative law 24 judge to weigh the conflicting arguments and I'm being asked 25 only to reweigh the arguments, even if I were to agree, and I 1 don't necessarily agree, that the treatment notes show 2 greater limitations than endorsed by the administrative law 3 judge. 4 So in short, I find the physical components of the 5 residual functional capacity finding to be supported by 6 substantial evidence. 7 And turning to the mental aspects, it is true that 8 consultative examiner, one-time consultative examiner 9 Dr. Patricia Cameron, issued an opinion on January 14, 2020 10 that appears at 508 to 512 of the record. There are marked 11 limitations noted in the medical source statement including 12 in sustaining concentration and performing a task at a 13 consistent pace, in sustaining an ordinary routine and 14 regular attendance at work, and moderate limitation in 15 regulating emotions, controlling behavior and maintaining 16 well-being. 17 The opinion is discussed by the administrative law 18 judge at two locations, 21 and 22, and again at 24 of the 19 record. And again, while it doesn't necessarily state how 20 much persuasion it is given, it is not necessarily rejected 21 in toto. In fact much of the assessment is found to be more 22 persuasive. The reasons for not adopting the marked 23 limitations include, one, her mental status observations were 24 anomalous in the record; two, the claimant's subjective 25 reports of symptoms and restrictions remained inconsistent 1 with treatment modalities and all other mental status 2 findings; and three, she was able to work during much of the 3 alleged period at issue and repeatedly asserted she could 4 work with good control of the symptoms when seeking medical 5 clearances. 6 I would say that that gives me a, gives me a window 7 into the ALJ's rationale, particularly when I read the 8 decision as a whole and there is a substantial recounting of 9 plaintiff's treatment. It was noted that on a couple 10 occasions she was referred to specialized psychiatric 11 treatment but did not follow up and she's never really had 12 any specialized psychiatric treatment. The -- so -- and as I 13 said, it's not, it's not right to say that the opinion was 14 rejected in toto. Part of it was accepted and part rejected 15 and as the case law clearly establishes, there's no 16 obligation to either accept or reject an opinion, a medical 17 opinion in whole. Again, plaintiff cites various treatment 18 notes but simply asks the court to reweigh the evidence. 19 I notice that Dr. Ochoa and Dr. Ferrin, two state 20 agency consultants, did not necessarily opine that plaintiff 21 can frequently interact with others as was found in the ALJ's 22 RFC. Dr. Cameron found only a moderate limitation in 23 interacting with supervisors, coworkers, and the public at 24 511, Dr. Ochoa found moderate limitation in the worksheet 25 with the general public but said that plaintiff is able to 1 interact with coworkers, supervisors, and the public in an 2 appropriate manner at page 98. Dr. Ferrin opined the same, 3 page 115. So in my view, the frequent interaction portion of 4 the RFC is supported by substantial evidence. Again, there's 5 no requirement that it necessarily parallel any one opinion. 6 In the end, it is plaintiff's burden to show greater 7 limitation. 8 The conclusion I reach is that substantial evidence 9 supports the mental component of the RFC, including frequent 10 interaction. 11 Plaintiff also challenges the evaluation of her 12 reported symptomology, what we used to call credibility. 13 Under the two-step review protocol applicable to assessing a 14 claimant's subjective reports, an ALJ first determines 15 whether the individual has a medically determinable 16 impairment that could reasonably be expected to produce the 17 alleged symptoms. And in this case the ALJ concluded that 18 she did. 19 Secondly, the ALJ must then evaluate the intensity 20 and persistence of those symptoms and determine the extent to 21 which those symptoms limit the claimant's ability to perform 22 work-related activities. 23 The administrative law judge began the analysis by 24 recounting plaintiff's claims on the bottom of page 17 and 25 the top of page 18, and then extensively discussed history of 1 her treatment including emergency room visits, noted that 2 these were sporadic events, that Xanax and blockers were 3 helping her conditions and that plaintiff on multiple 4 occasions reported that her angioedema was under control. He 5 did cite lack of treatment but it was not the primary basis 6 for the determination. The primary basis is summarized at 7 page 22 of the opinion and found that the medical evidence 8 was not consistent with plaintiff's testimony. The reasoning 9 is fivefold. One, her angioedema episodes were consistently 10 minor and without complication despite incomplete adherence 11 to specialist appointments and medications; two, she did not 12 have specific asthmatic attacks or any documented respiratory 13 clinical or laboratory diagnostic abnormalities; three, 14 despite her obesity, her clinical findings were consistently 15 within normal limits for strength, sensory, reflexes, gait, 16 ranges of motion, gait, and movement even during her isolated 17 angioedema episodes; four, no evidence to substantiate claims 18 of specialized mental health care and panic attacks or poor 19 control of symptoms; and five, her mental status clinical 20 findings have been consistently within normal limits for 21 behavior, manner of relating, mood, affect, speech, and 22 cognition. 23 The credibility determination, and I'll use the 24 word credibility, shorthand for evaluation of subjective 25 complaints, the determination is normally entitled to 1 substantial deference, Edward J. v. Kijakazi,

4536257, September 28th, 2022. In this case I find it is 3 supported by substantial evidence and I don't find any error 4 in the credibility determination which is explained very well 5 by the administrative law judge. 6 The last issue is the physical component of the RFC 7 and where the light work finding came in. Dr. Azad at 513 to 8 515, January 13, 2020, opined that plaintiff has moderate 9 limitations in lifting, carrying, et cetera. Dr. Gandhi at 10 86 to 100 on February 11, 2020, and later Dr. S. Putcha, 101 11 to 117 from June 23, 2020 opined that plaintiff is capable of 12 performing medium work. The finding of light work is less 13 than medium work. If it was error to ratchet down the 14 physical component of the RFC, it was harmless. It is more 15 favorable to the plaintiff and the failure to explain is 16 harmless error. Ryan W. v. Commissioner of Social Security, 17

from the Northern District of New York, 18 March 17, 2022. 19 So I find that substantial evidence supports the 20 RFC, both the physical and the mental health components, the 21 determination regarding plaintiff's reported symptomology was 22 proper and entitled to deference and I find no basis to 23 disturb it. I find in total that substantial evidence 24 supports the resulting determination and will grant judgment 25 on the pleadings to the defendant and order dismissal of 1 plaintiff's complaint. 2 Thank you again to both of you and I hope you have 3 a good afternoon. 4 MR. GOLDSTEIN: Thank you. 5 MR. KAISER: Thank you, your Honor. 6 (Proceedings Adjourned, 12:09 p.m.) 7 8 9 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 3rd day of August, 2023. 17 18 19 /S/ JODI L. HIBBARD

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