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

GARY G.,

Plaintiff, v. Civil Action No. 6:22-CV-1139 (DEP)

KILOLO KIJAKAZI, Acting Commissioner Social Security Administration,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LEGAL AID SOCIETY ELIZABETH LOMBARDI, ESQ. OF MID-NEW YORK, INC. 221 South Warren Street, Suite 310 Syracuse, NY 13202

FOR DEFENDANT

SOCIAL SECURITY ADMIN. SHANNON FISHEL, 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 November 29, 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: December 7, 2023 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x GARY G., Plaintiff, -v- 6:22-CV-1139 SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION TRANSCRIPT BEFORE THE HONORABLE DAVID E. PEEBLES November 29, 2023 100 South Clinton Street, Syracuse, New York For the Plaintiff: LEGAL AID SOCIETY OF MID-NEW YORK, INC. 221 South Warren Street Suite 310 Syracuse, New York 13202 BY: ELIZABETH VICTORIA LOMBARDI, ESQ. For the Defendant: SOCIAL SECURITY DEPARTMENT 6401 Security Boulevard 1520 Annex Baltimore, Maryland 21235 BY: SHANNON FISHEL, 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: 2:21 p.m.) 3 THE COURT: Well, let me begin by thanking counsel 4 for excellent and spirited presentations. I've enjoyed working 5 with you. 6 I have before me a challenge brought on behalf of the

7 plaintiff to an adverse determination by the Commissioner of 8 Social Security finding that he was not disabled at the relevant 9 times and therefore ineligible for the benefits sought. The 10 challenge is brought pursuant to 42, United States Code, 11 Sections 405(g) and 1383(c)(3). 12 The background is as follows: Plaintiff was born in 13 May of 1962. He is currently 61 years of age. He was 57 at the 14 time of his application for benefits in February of 2020. 15 Plaintiff stands 5'8" in height and weighs approximately 16 140 pounds. Plaintiff lives alone in an apartment in Rome, New 17 York. He has a 12th grade education and while in school 18 attended regular classes. He also has additional training as an 19 EKG assistant. Plaintiff has a driver's license but no car. He 20 served in the United States Army from February 1983 until 21 February 1990 and received an honorable discharge.

22 When the plaintiff last worked is somewhat equivocal 23 based on the record before the Court. At page 391, he claims 24 that he stopped working in December of 2013. In 2019, however, 25 he reported to another ALJ that he stopped working in 2017 and 1 that the reason he stopped working was because if he worked too 2 much, he would lose benefits of some sort. Plaintiff has worked 3 as a hospital janitor, as a convenience store clerk, and as a 4 packer. And at page 41 of the Administrative Transcript, during 5 the hearing, he testified that he walked out of every job that 6 he held because people aggravate him.

7 Physically, plaintiff suffers from emphysema or 8 chronic obstructive pulmonary disease, or COPD. He also has 9 complained of right shoulder issues, groin issues. For his 10 COPD, he uses an albuterol inhaler every three to four days, as 11 needed, based on shortness of breath. 12 Mentally, he suffers from various mental conditions. 13 They've been variously categorized, as the Administrative Law 14 Judge noted, to include, on occasion, depression, anxiety, 15 obsessive compulsive disorder, and at least by his therapist but 16 not any recognized medical professional, posttraumatic stress 17 disorder or PTSD. It's also been referred to, what he has, as 18 fight to flight. 19 In terms of treatments, plaintiff has received 20 treatment from NPP Robert Sharpe from March of 2020 and Licensed 21 Clinical Social Worker Teresa Pascarella from 2017. He has

22 received treatment for his various conditions, including his 23 physical conditions, from the Veterans Administration, both a 24 clinic in Rome and in Syracuse. His primary physician is 25 described as Dr. Zaki Badawy. 1 Plaintiff's activities of daily living are fairly 2 extensive. They include cooking, cleaning, doing laundry, 3 shopping. He showers. He grooms. He watches television. He 4 plays sports. He plays video games. He rides his bicycle one 5 hour per day, including in the winter. He does not take public 6 transportation, but uses Medicaid cabs to attend his various

7 appointments. He has, on occasion, fished with a friend. 8 Plaintiff is a smoker and has been encouraged to quit, including 9 at page 704 of the Administrative Transcript. 10 Procedurally, plaintiff applied for Supplemental 11 Security Income Title XVI benefits on February 24, 2020, 12 alleging an onset date of September 19, 2019. It appears that 13 plaintiff had prior applications for benefits denied, including 14 in May of 2017, at which time he argued disability both on 15 physical and mental grounds, and September 23, 2019, where the 16 focus of that application was only on his mental condition. 17 In support of his application, plaintiff claimed 18 disability based on anxiety, fight to flight, COPD, mental 19 issues, and a sleep disorder. That's at page 391 of the 20 Administrative Transcript. 21 On May 19, 2021, a hearing was conducted by

22 Administrative Law Judge Elizabeth Koennecke. Judge Koennecke 23 held a supplemental hearing with a vocational expert on 24 November 23, 2021. On December 2, 2021, Administrative Law 25 Judge Koennecke issued an adverse determination which became a 1 final determination of the agency on October 5, 2022, when the 2 Social Security Administration Appeals Council denied 3 plaintiff's application for review. This action was commenced 4 on November 2, 2022, and is timely. 5 In her decision, Administrative Law Judge Koennecke 6 applied the familiar five-step sequential test for determining

7 disability. At step one, she concluded that plaintiff has not 8 engaged in substantial gainful activity since February 24, 2020. 9 At step two, she concluded that plaintiff suffers 10 from severe impairments that impose more than minimal 11 limitations on his ability to perform basic work functions, 12 specifying those as a mental impairment, variously 13 characterized. 14 At step three, ALJ Koennecke concluded that 15 plaintiff's conditions do not meet or medically equal any of the 16 listed presumptively disabling conditions set forth in the 17 Commissioner's regulations. After reviewing plaintiff's claims 18 and addressing them and giving an outline of her evaluation of 19 the various medical opinions in the record, ALJ Koennecke -- I 20 should say, prior to doing that, ALJ Koennecke concluded that 21 plaintiff retains the residual functional capacity, or RFC, to

22 perform a full range of work at all exertional levels with the 23 following limitations: He can understand and follow simple 24 instructions and directions, perform simple tasks independently, 25 maintain attention and concentration for simple tasks, and 1 regularly attend to a routine and maintain a schedule. The 2 claimant can handle simple repetitive work-related stress in 3 that he can make occasional decisions directly related to the 4 performance of simple tasks in a position with consistent job 5 duties that does not require him to supervise or manage the work 6 of others. The claimant should avoid work requiring more

7 complex interaction or joint effort to achieve work goals. He 8 can have no contact with the public. 9 Applying that residual functional capacity at step 10 four, ALJ Koennecke concluded that plaintiff is capable of 11 performing his past relevant work as a material handler, but not 12 as a maintenance machine repairer. 13 She made an alternative finding at step five and, 14 based on the testimony of the vocational expert, concluded that 15 plaintiff is capable of performing other available work in the 16 national economy, citing as representative positions those of 17 dishwasher, floor waxer, and janitor and, therefore, concluded 18 that plaintiff is not disabled. 19 As you know, the Court's task at this juncture is 20 limited and the standard which I must apply is extremely 21 deferential. The Second Circuit has observed as much in Brault

22 v. Social Security Administration Commissioner,

23 from 2012, and more recently reaffirmed and reiterated in 24 Schillo v. Kijakazi, 31 F.4d 64 from 2022. 25 I must determine whether correct legal principles 1 were applied and the resulting determination is supported by 2 substantial evidence, which is defined as such relevant evidence 3 as a reasonable mind would find sufficient to support a 4 conclusion. 5 In this case, plaintiff has raised four contentions. 6 The first two are somewhat interrelated. He contends first at

7 step two that the Administrative Law Judge erred in not finding 8 his COPD to be severe and relatedly argues that the residual 9 functional capacity finding should have included a limitation on 10 exposure to pulmonary irritants, extreme temperatures, and 11 humidity. 12 With regard to plaintiff's mental limitations, he 13 concludes that the residual functional capacity should have 14 included a greater limitation on the interaction with others and 15 complains of the failure to make specific findings concerning 16 plaintiff's ability to handle stress. 17 First, turning to the step two determination. At 18 step two, the claimant must show that he or she has a medically 19 determinable impairment that rises to the level of a severe 20 impairment. An impairment fails to reach that threshold of 21 severity when it does not significantly limit a claimant's

22 physical or mental ability to perform basic work activities, 23 which include the ability to engage in exertional functions; 24 see, hear, or speak; understand, remember, and carry out simple 25 instructions; use judgment; respond appropriately to 1 supervision, coworkers, and usual work situations; and deal with 2 changes in a routine work setting, 20 C.F.R. Section 416.22. 3 Admittedly, the requirement at step two to establish 4 a severe impairment is de minimis and intended only to screen 5 out the weakest of cases. However, the mere presence of a 6 disease or impairment or establishing that a person has been

7 diagnosed or treated for a disease or an impairment is not by 8 itself sufficient to render a condition severe. And, of course, 9 the burden is on the plaintiff through step four to establish 10 not only the existence of a diagnosed condition, but the 11 resulting limitations. 12 There are three opinions that arguably speak to 13 plaintiff's physical condition. Dr. Rita Figueroa, a 14 consultative examiner, concluded that plaintiff should avoid 15 exposure to pulmonary irritants. That's at page 549 of the 16 Administrative Transcript. That was partially rejected by the 17 Administrative Law Judge at page 18 of the Administrative 18 Transcript. And specifically, the environmental restrictions 19 were found to be inconsistent with the evidence and the cited 20 reasons are: One, the record convincingly demonstrates the 21 claimant to have no respiratory difficulties; two, not only has

22 the claimant reported riding his bicycle an hour a day during 23 the winter; but three, he is a current smoker. And she 24 concludes the claimant's ongoing tobacco use and his ability to 25 perform a generally vigorous activity in cold temperatures are 1 wholly inconsistent with the environmental restrictions Dr. 2 Figueroa and also Dr. Koenig described. And Dr. Koenig is a 3 state agency consultant, he did not examine the plaintiff, but 4 did review plaintiff's medical records and concluded at page 122 5 of the Administrative Transcript that plaintiff should avoid 6 concentrated exposure to fumes, odors, dust, gases, poor

7 ventilation, et cetera. 8 Dr. B. Stouter, a state agency consultant, issued an 9 opinion on August 14, 2020. In that opinion at page 108, he or 10 she concluded he does not suffer from any severe physical 11 impairment. The opinion evidence, of course, is subject to 12 review under the new regulations that took effect in March of 13 2017. Under those regulations, the Commissioner does not any 14 longer defer or give specific evidentiary weight, including 15 controlling weight, to any medical opinions, including those 16 from medical sources. Instead, the ALJ must consider whether 17 those opinions are persuasive by primarily considering whether 18 they are supported by, and consistent with, the record in the 19 case, 20 C.F.R. Section 416.920c(a). And then, of course, the 20 ALJ must articulate in his or her determination as to how 21 persuasive each medical opinion is found to be when considering

22 supportability and consistency. There are other factors which 23 may be considered, but the ALJ is not required to explain how 24 those additional factors are considered. 25 In my view, substantial evidence supports the 1 determination that plaintiff's COPD or emphysema, however it is 2 characterized, is severe at step two. There has been minimal 3 treatment for COPD. As the Administrative Law Judge noted 4 plaintiff rides a bike one hour per day, including in winter, 5 and smokes. While Dr. Figueroa did conclude in the medical 6 source statement that there should be limited exposure, in fact,

7 no exposure to pulmonary irritants, when she examined the 8 plaintiff's chest and lungs, she found increased AP diameter but 9 clear to ascultation, percussion normal, no significant chest 10 wall abnormality, and normal diaphragmatic motion. So as was 11 noted, there does not appear to be support in the observations 12 during the exam that was for the limitation in the medical 13 source statement. 14 I also note that I reviewed the treatment notes from 15 both Nurse Practitioner Sharpe and from the VA, and they don't 16 seem to support, as the ALJ noted, plaintiff's claim of 17 difficulty in breathing and the need for restriction on 18 pulmonary irritants. September 1, 2020, plaintiff denied 19 shortness of breath. That's at 570 and 562. On April 7, 2021, 20 plaintiff was negative for shortness of breath. That's at 700. 21 On July 2, 2020, plaintiff denied shortness of breath. That's

22 at 579. On October 8, 2010, a note from the VA found mild 23 atelectasis left lung base, no pleural effusion or pneumothorax 24 identified. That's at 620 and 503. On August 21, 2019, lungs 25 were clear, no wheezing. That's at 664. On April 8, 2020, no 1 complaints. That's at 631. On April 8, 2021, it was noted that 2 plaintiff was still smoking, uses inhaler every three to 3 four days when short of breath. That's at 704. In conclusion, 4 I find that the determination at step two is supported by 5 substantial evidence when it comes to rejection of COPD. 6 Similarly, with regard to the residual functional

7 capacity finding and the argument that it should have included a 8 limitation on exposure to irritants and the cold, of course an 9 RFC is pivotal to any determination of a disability. An RFC, of 10 course, represents the range of tasks a plaintiff is capable of 11 performing notwithstanding the impairments at issue, 20 C.F.R. 12 Section 416.945(a). By that, we mean a claimant's maximum 13 ability to perform sustained work activities in an ordinary 14 setting on a regular and continuing basis, meaning eight hours a 15 day for five days a week or an equivalent schedule. And, of 16 course, an RFC determination is informed by consideration of 17 claimant's physical and mental abilities and the evidence in the 18 record. 19 In this case, as I said, Dr. Figueroa stated that 20 plaintiff should avoid exposure to pulmonary irritants. Dr. 21 Koenig concluded that plaintiff should avoid concentrated

22 exposure to fumes, odors, et cetera. I don't think that any 23 error in that regard would by definition be harmless because I 24 think an argument could be made that a vocational expert should 25 be queried on whether or not a limitation on exposure to 1 irritants would affect the step five alternative disposition. 2 However, as I indicated previously, at page 18 the 3 Administrative Law Judge rejected the need for environmental 4 limitations and explained convincingly why she did that. I am 5 not able to say that no reasonable factfinder could conclude as 6 the Administrative Law Judge did.

7 The treating source rule does not apply. Neither of 8 the two professionals that opined to a limitation were treating 9 sources. One did not examine the plaintiff. The other did, but 10 as I indicated, the results of the examination don't really seem 11 to support the final determination. So in conclusion, I find 12 that the plaintiff failed to prove any limitations on exposure 13 is warranted. 14 Turning to the mental RFC component, it's noteworthy 15 that there are significant limitations on interaction, no 16 contact with the public, no supervision of others, no complex 17 interaction or joint effort, simple tasks only independently. 18 It's clear from the record, including plaintiff's testimony, 19 that his stress comes from interaction with others and 20 specifically coworkers. He stated during the hearing at page 21 34, I believe, that he did not have problems with supervisors.

22 In my view, the limitations are supported by the opinions of Dr. 23 May and Dr. Butler and, of course, as state agency consultants, 24 their opinions can provide substantial evidence for a resulting 25 determination. 1 Dr. May, both in the original report, which is 2 Exhibit 4A, and later, on page 553, in August of 2020, stated 3 his or her opinion that based on the evidence in the file, 4 claimant can perform work tasks with limited and superficial 5 contact with other workers and the public, and specified that 6 the limitations are due to anxiety and depression, currently

7 moderate in severity. In my view, the RFC determination, which 8 is exceedingly specific in many regards when it comes to 9 interaction with others, accommodates that determination. 10 Similarly, in his or her opinion, Dr. Butler found moderate 11 limitations, but in the end, at page 125, stated claimant is 12 capable of simple to complex tasks in low pressure settings with 13 limited interpersonal contact. Again, I believe that that 14 opinion is adequately accommodated by and consistent with the 15 RFC determination in this case. 16 I also note that there are not necessarily a lot of 17 inconsistencies with the opinion of Therapist Pascarella. I 18 have been through the treatment notes from Therapist Pascarella 19 and Nurse Practitioner Sharpe. The findings with regard to 20 plaintiff's mental health condition are relatively benign. He's 21 not had any hospitalization or emergent treatment. And I note,

22 of course, it is well accepted that an Administrative Law 23 Judge's RFC finding does not need to perfectly match any one 24 opinion. In my view, plaintiff's problem essentially is with 25 coworkers. He stated at page 44, no trouble with supervisors. 1 The RFC specifies no contact with the public. And I think the 2 remaining aspects of the RFC not requiring him to supervise or 3 manage the work of others and avoiding work requiring more 4 complex interaction or joint effort to achieve work goals 5 adequately accommodates what limitations are necessary to 6 address his mental health conditions.

7 In the end, I find that substantial evidence supports 8 the RFC finding. Plaintiff's counsel confirmed that assuming 9 the RFC finding is supported, he does not challenge -- plaintiff 10 does not challenge the step four or step five determinations, 11 and so I find that proper legal principles were applied and 12 substantial evidence supports the resulting determination. I 13 will grant judgment on the pleadings to the defendant and order 14 dismissal of plaintiff's complaint. 15 Thank you, both. I hope you have a wonderful holiday 16 season. 17 MS. LOMBARDI: Thank you, your Honor. 18 MS. FISHEL: Thank you, your Honor. 19 (Time noted: 2:48 p.m.) 20 21 22

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 1st day of December, 2023. 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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