UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ ANTHONY I., Plaintiff, v. 1:23-CV-0796 (ML) COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: ANTHONY I. Pro se Plaintiff P.O. BOX 58 Altamont, New York 12009

SOCIAL SECURITY ADMINISTRATION FERGUS KAISER, ESQ. Counsel for the Defendant Special A.U.S.A. 6401 Security Boulevard Baltimore, Maryland 21235

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 5, 2024, 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. 13) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 16) 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, 2024 Binghamton, New York | > Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x ANTHONY I., Plaintiff, -v- 1:23-CV-796 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x DECISION TRANSCRIPT BEFORE THE HONORABLE MIROSLAV LOVRIC September 5, 2024 15 Henry Street, Binghamton, NY 13901 For the Plaintiff: BY: ANTHONY I., pro se For the Defendant: SOCIAL SECURITY ADMINISTRATION 26 Federal Plaza Room 3904 New York, New York 10278 BY: FERGUS J. KAISER, 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: 9:39 a.m.) 3 THE COURT: All right. So the Court will begin its 4 decision as follows: Plaintiff has commenced this proceeding 5 pursuant to

(g) to challenge the 6 adverse determination by the Commissioner of Social Security

7 finding that he was not disabled at the relevant times and 8 therefore ineligible for the benefits that he sought. 9 By way background, the Court states as follows: 10 Plaintiff was born in 1958. He is currently 66 years old. He 11 seeks disability insurance benefits for the period between 12 December 31, 2002, and his date last insured of December 31, 13 2007. On his date last insured, plaintiff was approximately 14 49 years old. Plaintiff stands approximately 5'11" and weighs 15 approximately 210 pounds. 16 Plaintiff is a high school graduate who subsequently 17 attended college. He testified that he left college prior to 18 graduation in order to open a restaurant with his brother. He 19 worked as a restaurant owner and head chef for approximately 20 24 years. Plaintiff testified that he sold his restaurants in 21 2002 when his impairments, including neck, shoulder, back, and

22 knee pain, made it difficult to meet the physical demands of the 23 profession. Plaintiff has not held full-time employment since 24 2002. 25 Procedurally, the Court notes as follows: Plaintiff 1 applied for Title II benefits on July 15, 2020, alleging an 2 onset date of December 31, 2002. In his application for 3 benefits, plaintiff claimed disability due to degenerative disc 4 disease and panic disorder. During the administrative process, 5 plaintiff also reported functional limitations imposed by right 6 shoulder pain and instability in the right knee despite

7 surgeries to address these issues. 8 Administrative Law Judge Mary Sparks convened a 9 telephonic hearing on October 13, 2021, to address plaintiff's 10 application for benefits, but she adjourned it without taking 11 testimony in light of newly received medical evidence. 12 Plaintiff's application was reassigned to ALJ Jude Mulvey, who 13 held a telephonic hearing on February 9, 2022, at which 14 plaintiff and vocational expert Warren Maxim testified. ALJ 15 Mulvey issued an unfavorable decision on February 18, 2022. 16 That decision became the final determination of the agency on 17 April 26, 2023, when the Appeals Council denied plaintiff's 18 request for review. This action was commenced on June 30, 2023, 19 and it is timely. 20 In his February 18, 2022, decision, ALJ Mulvey 21 applied the familiar sequential test for determining disability.

22 At step one, the ALJ concluded that plaintiff had not engaged in 23 substantial gainful activity during the relevant period between 24 his alleged onset date of December 31, 2002, through his date 25 last insured of December 31, 2007. 1 At step two, ALJ Mulvey concluded that plaintiff had 2 the following severe impairments: Postsurgical right knee 3 disorder, degenerative disc disease and facet disease of the 4 cervical spine, right rotator cuff tear with surgery, and left 5 biceps tendonitis. 6 At step three, ALJ Mulvey concluded that plaintiff

7 did not have an impairment or combination of impairments that 8 met or medically equaled the severity of one of the listed 9 impairments in 20 C.F.R. Section 416.920(c) during the relevant 10 period in consideration. In making this determination, the ALJ 11 considered the following listings: Listing 1.15 dealing with 12 disorders of the skeletal spine resulting in compromised nerve 13 root; also, listing 1.17 dealing with reconstructive surgery or 14 surgical arthrodesis of a major weightbearing joint. 15 Next, the ALJ determined that plaintiff has the 16 residual functional capacity, also known as RFC, to perform less 17 than the full range of light work. Specifically, the ALJ found 18 plaintiff cannot climb ladders, ropes, or scaffolds, or work 19 with moving mechanical parts of equipment. The ALJ found that 20 plaintiff can occasionally climb stairs, stoop, crouch, crawl, 21 and kneel, and that he can frequently reach with his left upper

22 extremity, and the plaintiff should also avoid concentrated 23 exposure to vibrations. 24 At step four, the ALJ relied on the vocational expert 25 testimony to determine that plaintiff was able to perform his 1 past relevant work as a restaurant manager. 2 Continuing to rely on the vocational expert 3 testimony, the ALJ made alternative findings at step five that, 4 in light of plaintiff's age, education, work experience, and 5 RFC, that there are jobs that exist in significant numbers in 6 the national economy that plaintiff could have performed during

7 the relevant period. More specifically, the vocational expert 8 testified that plaintiff could have performed the requirements 9 of representative occupations such as order clerk, document 10 preparer, and surveillance system monitor. Accordingly, the ALJ 11 found that plaintiff was not disabled during the relevant period 12 between December 31, 2002, through December 31st of 2007. 13 I now turn to plaintiff's arguments in plaintiff's 14 filings. Plaintiff was represented by counsel during the 15 administrative hearing and appeal process, but plaintiff 16 commenced this proceeding pro sé. He filed a brief and also a 17 reply brief in this proceeding, and plaintiff makes the 18 following arguments and contentions: First, plaintiff argues 19 the ALJ's RFC determination ignored significant relevant medical 20 evidence; second, plaintiff argues the ALJ erred by relying on 21 state agency medical consultants without proof that the

22 consultants had reviewed the full medical record; third, 23 plaintiff argues the ALJ erred by finding that plaintiff's 24 description of his symptoms was inconsistent with the medical 25 evidence; and fourth, the plaintiff argues that the ALJ erred in 1 discussing plaintiff's dyspnea and chest pain when plaintiff did 2 not claim that these conditions were disabling during the 3 relevant period. 4 Recognizing the Second Circuit's mandate that pro sé 5 litigants should be granted "special solicitude" by the Court, 6 this Court will address each of these contentions while

7 undertaking a more general review of the ALJ's sequential 8 evaluation to determine whether the ALJ's decision was supported 9 by substantial evidence. 10 That being said, this Court's functional role in this 11 case is limited and extremely deferential. This Court must 12 determine whether correct legal principles were applied and 13 whether the determination is supported by substantial evidence, 14 defined as such relevant evidence as a reasonable mind would 15 find sufficient to support a conclusion. As the Second Circuit 16 noted in the case of Brault v. Social Security Administration 17 Commissioner, that's found at

, a 2012 Second 18 Circuit case, therein, the Second Circuit stated that this 19 standard is demanding, more so than the clearly erroneous 20 standard. The Court noted in Brault that once there's a finding 21 of fact, that fact can be rejected only if a reasonable

22 factfinder would have to conclude otherwise. 23 The Court now begins its analysis in this case, 24 beginning with the step two determination made by the ALJ. In 25 considering plaintiff's claim for benefits, the ALJ found 1 post-surgical right knee disorder, degenerative disc disease and 2 facet disease of the cervical spine, right rotator cuff tear 3 with surgery, and left biceps tendonitis were severe impairments 4 because they imposed more than a minimal harmful effect on 5 plaintiff's ability to do basic work activities. The ALJ also 6 considered other impairments referenced in the broader medical

7 record, including bilateral carpal tunnel syndrome; lumbar 8 disorder; lateral epicondylitis, also known as tennis elbow; 9 dyspnea, also known as shortness of breath; and lung scarring, 10 but found that they did not rise to the level of severe 11 impairments. 12 In reaching this step two determination, the ALJ 13 considered physician-reviewed X-rays and other imaging reports, 14 consistent physician recommendations for conservative therapy 15 approaches, such as physical therapy, and the lack of any 16 surgery or ongoing treatment during the relevant period. 17 Specifically, with regard to dyspnea and chest pain, 18 the ALJ considered evidence from the relevant period that 19 included an exercise stress test that showed "excellent exercise 20 tolerance" and abnormal electrocardiogram findings. 21 This Court finds that the ALJ's analysis at step two

22 provides sufficient explanation indicating that he adequately 23 considered the evidence related to plaintiff's alleged 24 impairments. Therefore, the ALJ had substantial evidence to 25 support his conclusions at step two. 1 In the alternative, the Court finds that any error by 2 the ALJ at step two, such as failing to identify a severe 3 impairment, would be harmless because he found other impairments 4 severe. Also, the ALJ continued with the sequential evaluation, 5 and the ALJ provided adequate explanation in his decision 6 showing he properly considered the evidence related to all of

7 plaintiff's impairments. 8 In his brief, plaintiff contends that the ALJ abused 9 his discretion by discussing plaintiff's dyspnea and chest pain 10 at step two and in the RFC determination, when plaintiff never 11 based his disability claim on these conditions. The plaintiff 12 further contends that the ALJ's citation to results from a 13 June 2000 stress test and "normal" electrocardiogram findings 14 was misleading, because these conditions eventually led to 15 plaintiff suffering a transient ischemic attack, also known as a 16 mini stroke, in 2009 and require continual treatment by a 17 cardiologist. Plaintiff's brief suggests that he would have 18 offered additional information regarding the current status of 19 these conditions if he had known the ALJ would consider them. 20 This Court finds no error in the ALJ's consideration 21 of plaintiff's dyspnea and chest pain. The ALJ was legally

22 required to consider the combined effect of all of plaintiff's 23 impairments on his disability status, regardless of whether a 24 specific impairment qualified as severe or nonsevere. For that 25 proposition, see 20 C.F.R. Section 404.1523(c). See also case 1 of Wood v. Colvin, 987 F. Supp. 2d at 180 and at page 198. That 2 is a Northern District of New York 2013 case. And therein, the 3 Court found the ALJ properly considered the combined effect of 4 all of plaintiff's impairments, including his nonsevere 5 impairments, at every step of the disability evaluation process. 6 At the same time, the ALJ's inquiry was limited to the

7 functional limitations imposed by plaintiff's impairments for 8 the period between December 31, 2002, through his date last 9 insured of December 31, 2007. Evidence that showed a worsening 10 of plaintiff's condition after the date last insured is not 11 relevant to that inquiry, see case of Vilardi v. Astrue, at 447

at page 272, and that is a Second Circuit 2012 13 case, holding that the claimant's reliance on evidence 14 demonstrating a worsening of her condition after the date on 15 which she was last insured was of "little value" to counter the 16 substantial evidence the ALJ relied on to determine that she 17 retained the RFC to perform her past relevant work. 18 Accordingly, the ALJ's step two determination does not present 19 any grounds for remand in this case. 20 The Court will now turn to the step three analysis by 21 the ALJ. To meet a listing, plaintiff must show that his

22 medically determinable impairment satisfies all of the specified 23 criteria in a listing. In this case, the ALJ considered the 24 available treatment record, as well as plaintiff's testimony, to 25 conclude that plaintiff did not have an impairment or 1 combination of impairments that meets or medically equals the 2 severity of any listed impairment. 3 Plaintiff has not raised any issue with the ALJ's 4 step three determination, and this Court's review of the ALJ's 5 decision finds no grounds for remand. The ALJ's analysis at 6 step three indicates sufficient consideration of plaintiff's

7 impairments in relation to the listings, and the findings are 8 supported by substantial evidence. 9 The Court will now turn to the RFC analysis conducted 10 by the ALJ. RFC is defined as what an individual can still do 11 despite his or her limitations. In other words, RFC is the 12 individual's maximum remaining ability to do sustained work 13 activities in an ordinary work setting on a regular and 14 continuing basis. In reaching the RFC determination, the ALJ is 15 entitled to weigh all the evidence available to reach a 16 conclusion that is consistent with the record as a whole. That 17 conclusion need not perfectly correspond to any medical opinion 18 in the record. 19 In this case, the ALJ found that plaintiff was 20 capable of performing less than the full range of light work 21 during the relevant period.

22 Given the remote period under review, the record does 23 not contain much useful opinion evidence. Two state agency 24 consultants who reviewed the record found insufficient evidence 25 to assess plaintiff's functional limitations. The ALJ noted 1 their reviews, but did not rely upon them. Instead, the ALJ 2 relied on primary care and emergency room records to establish 3 that plaintiff had a limited and conservative treatment history 4 during the relevant period. The ALJ also considered Workers' 5 Compensation reports that summarized plaintiff's medical 6 history, including surgeries that predated the alleged

7 disability onset date. The ALJ also cited a treatment summary 8 by a neurosurgical specialist who evaluated plaintiff in 9 May 2003 and described plaintiff as doing "quite well" after a 10 course of physical therapy for lower back pain. 11 Plaintiff challenges the state agency consultant's 12 conclusion regarding the sufficiency of the medical evidence and 13 speculates that the physicians did not review the entire record 14 before issuing their separate opinions. This argument is 15 unpersuasive for several reasons. First, the consultants cited 16 the records that they reviewed before determining that 17 plaintiff's application did not support a disability claim. 18 Second, there is general recognition that state agency 19 consultants are "highly qualified and experts in Social Security 20 Disability evaluation," and the ALJ could have relied on some or 21 all of their opinions if supported by substantial evidence.

22 Finally, the consultants' opinions had minimal impact on the RFC 23 determination, because the ALJ did not rely on them to establish 24 any functional limitations. 25 Plaintiff's contention that the ALJ improperly 1 discounted his testimony regarding the functional limitations 2 imposed by his back, shoulder, and knee pain is likewise 3 unpersuasive. Subjective complaints alone are not a basis for 4 an award of disability insurance benefits in the absence of 5 corroborating objective medical evidence. Here, the ALJ 6 appropriately compared plaintiff's description of his ongoing

7 functional limitations with medical reports from the relevant 8 period showing improvement with conservative treatment such as 9 pain medication and physical therapy. 10 In challenging the ALJ's determination that plaintiff 11 was capable of performing some light work jobs, plaintiff points 12 to treatment notes and imaging reports cataloguing his diagnosed 13 impairments. Mere diagnosis, however, does not establish the 14 functional limitations imposed by those impairments. To the 15 extent that plaintiff argues that the ALJ should have 16 interpreted the medical and testimonial evidence differently, 17 such challenges must likewise be rejected, because they are 18 premised entirely upon a disagreement over how the ALJ resolved 19 arguably conflicting evidence. It is not sufficient that 20 reasonable parties could interpret the evidence differently, and 21 it is not the function of this reviewing court to reweigh the

22 evidence. 23 Accordingly, this Court finds that the ALJ's RFC 24 determination was supported by substantial evidence. 25 The Court now turns to the step four analysis 1 conducted by the ALJ. At step four, the ALJ must determine 2 whether an individual can perform their past relevant work. 3 Past relevant work can be either the specific job as plaintiff 4 actually performed it or the same kind of work as it is 5 generally performed throughout the economy. To answer this 6 inquiry, an ALJ may engage a vocational expert to opine on the

7 jobs that a hypothetical person of the claimant's age, 8 education, and RFC could perform in the national economy. 9 Because this Court has found the ALJ's RFC determination was 10 supported by substantial evidence, it also finds the ALJ's 11 matching hypothetical of the vocational expert was proper. 12 Here, the vocational expert categorized plaintiff's 13 prior work into two job roles. First, restaurant chef -- and I 14 should say, the two job roles are restaurant chef and restaurant 15 manager. The vocational expert testified that someone of 16 plaintiff's age, education, and RFC would not be able to meet 17 the physical requirements of the restaurant chef position, but 18 could still meet the work requirements of restaurant manager, as 19 that job is generally performed in the national economy. Thus, 20 the ALJ reasonably concluded that plaintiff was not disabled 21 during the relevant period.

22 The Court now turns to the step five analysis 23 conducted by the ALJ. Having found that plaintiff could meet 24 the job requirements of restaurant manager, the ALJ could have 25 ended his inquiry there. Instead, the ALJ, again relied on 1 vocational expert testimony to reach an alternative finding at 2 step five that there were other jobs in the national economy 3 that an individual with plaintiff's RFC could perform during the 4 relevant period. 5 The vocational expert identified three representative 6 occupations that plaintiff could perform. Those three are order

7 clerk, document preparer, and surveillance system monitor. The 8 ALJ then appropriately questioned the vocational expert 9 regarding the basis for that opinion and sought explanation 10 where his opinion relied on his professional expertise rather 11 than the standard definitions in the Dictionary of Occupational 12 Titles. 13 Numerous courts have questioned whether technological 14 advances make the positions of document preparer and 15 surveillance system monitor obsolete in the modern economy, 16 which would include the period between December 2002 and 17 December of 2007. With regard to the document preparer 18 position, the vocational expert testified that the physical 19 requirements of the position also corresponded to jobs that 20 require working with modern technology such as high-speed 21 document scanning. This Court need not resolve that issue to

22 find that the ALJ's step five determination was supported by 23 substantial evidence, because the vocational expert also 24 testified -- excuse me, the vocational expert also identified 25 the position of order clerk, with approximately 13,000 full-time 1 positions available nationally, as a job existing in significant 2 numbers in the national economy. Courts have regularly held 3 that where a vocational expert identifies at least one job 4 existing in significant numbers, that the Commissioner's 5 obligation at step five is satisfied. 6 Therefore, to the extent it is necessary, this Court

7 also finds the vocational expert's testimony provided 8 substantial evidence for the ALJ to determine that there were 9 jobs existing in significant numbers in the national economy 10 that plaintiff could perform. Accordingly, the ALJ's step five 11 determination does not present any grounds for remand. 12 Based on the foregoing, the ALJ's decision was based 13 upon correct legal standards, and substantial evidence supports 14 his ultimate determination that plaintiff was not under a 15 disability through the date of his decision. 16 As a result, this Court therefore finds and concludes 17 that defendant's motion for judgment on the pleadings is 18 granted, plaintiff's complaint is dismissed, and the 19 Commissioner's decision denying plaintiff benefits is affirmed. 20 This concludes the Court's decision, analysis, and reasoning. 21 (Time noted: 10:07 a.m.)

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 6th day of September, 2024. 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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