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

BARBARA J. P.,

Plaintiff, v. Civil Action No. 6:24-CV-458 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

OFFICE OF PETER ANTONOWICZ PETER ANTONOWICZ, ESQ. 148 West Dominick Street Rome, NY 13440

FOR DEFENDANT

SOCIAL SECURITY ADMIN. VERNON NORWOOD, ESQ. 6401 Security Boulevard KATHRYN POLLACK, ESQ. 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 conducted in connection with those motions on May 22, 2025, during a telephone conference held 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 did not result from the application of proper legal principles and is not 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, a transcript of which is attached and incorporated herein by

reference, it is hereby ORDERED, as follows: 1) Plaintiff=s motion for judgment on the pleadings is GRANTED.

2) The Commissioner=s determination that plaintiff was not

1 This action is timely, and the Commissioner does not argue otherwise. It has been treated in accordance with the procedures set forth in the Supplemental Social Security Rules and General Order No. 18. Under those provisions, the court considers the action procedurally as if cross-motions for judgment on the pleadings have been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is VACATED. 3) | The matter is hereby REMANDED to the Commissioner, without a directed finding of disability, for further proceedings consistent with this determination. 4) The clerk is respectfully directed to enter judgment, based

upon this determination, remanding the matter to the Commissioner pursuant to sentence four of

(g) and closing this case.

U.S. Magistrate Judge Dated: June 13, 2025 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------x BARBARA JO P.,

Plaintiff,

vs. 6:24-CV-458

COMMISSIONER OF SOCIAL SECURITY,

Defendant. ---------------------------------------------------x DECISION held on May 22, 2025 by teleconference before the HONORABLE DAVID E. PEEBLES United States Magistrate Judge

APPEARANCES (by telephone) For Plaintiff: PETER W. ANTONOWICZ, ESQ. 148 West Dominick Street Rome, NY 13440

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 6401 Security Boulevard Baltimore, MD 21235 BY: VERNON NORWOOD, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking both of you 2 for excellent presentations. 3 Before I address the merits of the case, I wanted 4 to broach the subject of consent. When this case was 5 originally filed, it was assigned to Magistrate Judge Daniel 6 J. Stewart. The consent form which was filed on March 22 -- 7 it was filed on April 1, 2024, signed on March 22, 2024, 8 docket number 3, specifically consented to his jurisdiction. 9 The matter has since been transferred to me. 10 I wanted to make sure, Attorney Antonowicz, that 11 your client does consent to my hearing and determining the 12 matter with direct appeal to the United States Court of 13 Appeals for the Second Circuit. 14 MR. ANTONOWICZ: Yes, your Honor. 15 THE COURT: Thank you. 16 Plaintiff has commenced this action pursuant to 42,

(g) to challenge a partially 18 unfavorable determination by the Commissioner of Social 19 Security. The background is as follows. 20 Plaintiff was born in August of 1965 and is 21 currently 59 years of age. She was 52 at the alleged onset 22 of her disability on March 15, 2018. Plaintiff stands 5-foot 23 4-inches in height and has weighed at various times between 24 206 and 276 pounds. Plaintiff lives in Remsen, New York, in 25 a house with her husband. Plaintiff has a high school degree 1 and two years of college at Mohawk Valley Community College 2 having achieved an Associate's Degree. She was in regular 3 classes while in school. Plaintiff drives. Plaintiff 4 stopped working on March 5, 2018. When working she was a 5 cable television technician from August of 1996 until March 6 of 2018. 7 Physically, plaintiff suffers from lumbar back 8 pain, leg pain, tremors, high blood pressure, diabetes, 9 obesity, and vision impairment. The diabetes is Type 2 10 diabetes. Plaintiff injured her back at work on March 5, 11 2018 and went out on Workers' Compensation. She has also had 12 right shoulder surgery in October of 2016, eye surgery in 13 April of 2017. And I note that Dr. Kirkpatrick on May 10, 14 2018 noted that plaintiff suffers from a 25 percent loss of 15 her right arm. She has undergone various testing of her 16 back, including an X-ray on March 13, 2018 which revealed 17 mild degenerative arthritic spurring of the lumbar spine, an 18 EMG and nerve conduction study on September 27, 2018 that 19 showed evidence of an active bilateral L5 radiculopathy, an 20 MRI on March 22, 2019 that showed that the very slight 21 degenerative changes as enumerated above are stable since the 22 previous examination, no new central or neural foraminal 23 stenosis, and another EMG, a nerve conduction study on 24 November 21, 2019, again showing evidence of chronic 25 bilateral L4 and L5 radiculopathy, an MRI on June 11, 2020, 1 showing no fracture but mild to moderate spondylosis of the 2 lumbar spine and disc herniation of the L5/S1 without canal 3 stenosis, nerve conduction study, and an EMG on December 16, 4 2020, showing electrophysiological evidence of chronic 5 bilateral radiculopathy, and an MRI of the lumbar spine on 6 June 3, 2021, revealing subtle sub-ligamentous protrusion at 7 L5/S1. 8 The plaintiff has a fairly wide range of daily 9 activities. She showers three times a week, can dress, 10 groom, watches television, she gardens, she shops with her 11 husband every two weeks, does some dusting, some laundry one 12 time a week. She does some cooking five to six times a week. 13 That's at 1087 of the Administrative Transcript. She sews, 14 she walks, she swims, she walks her dog. She does state on 15 August 18, 2021, that she walks daily. At 1485 it indicates 16 she can walk a half mile. At 523 there is an indication that 17 she feels like she can walk one mile but only stand for 15 18 minutes. That's on May 10, 2018 that statement was made, 19 578. The record is a little equivocal as to whether or not 20 she rides a motorcycle and, if so, how often. At 332 and 316 21 she states she cannot. At 1312 there was an indication she 22 has difficulty with tremors and shifting gears. She also 23 does outdoor photography, that's at 645 of the Administrative 24 Transcript. 25 Procedurally, plaintiff applied for Title II 1 benefits protectively on December 2, 2020, alleging an onset 2 date of March 5, 2018. At 298 she alleged disability based 3 on bulging disc at L5/S1, nerve pain, carpal tunnel syndrome, 4 high blood pressure, Type 2 diabetes, and altered depth 5 perception. A hearing was conducted on February 15, 2023 by 6 Administrative Law Judge Elizabeth Koennecke to address 7 plaintiff's application for benefits. A second hearing was 8 conducted with a vocational expert on April 17, 2023 by ALJ 9 Koennecke. An unfavorable decision -- I'm sorry, a partially 10 favorable decision was issued on April 27, 2023, finding that 11 plaintiff was disabled beginning August 25, 2020, but not 12 before. On January 31, 2024 that decision became a final 13 determination of the Agency, when the Social Security 14 Administration Appeals Council denied plaintiff's request for 15 review. This action was commenced on April 1, 2024, and is 16 timely. 17 In her decision, ALJ Koennecke applied the familiar 18 five-step sequential test for determining disability. She 19 noted that plaintiff had not engaged in substantial gainful 20 activity since March 5, 2018. She also noted in passing that 21 plaintiff has an insured status or did through December 31, 22 2023. 23 At step two, she concluded that plaintiff does 24 suffer from severe impairments that place more than minimal 25 limitations on her ability to perform work functions, 1 including obesity and degenerative disc disease of the lumbar 2 spine. She rejected several other conditions including her 3 right shoulder, high blood pressure, glaucoma, diabetes, hand 4 and finger tremors, and carpal tunnel syndrome as not being 5 severe within the meaning of the Social Security Act. 6 At step three, ALJ Koennecke concluded that 7 plaintiff's conditions do not meet or medically equal any of 8 the listed presumptively disabling conditions set forth in 9 the Commissioner's regulations, specifically considering 10 listings 1.15 and 1.16. The ALJ went on to formulate a 11 residual functional capacity, or RFC, finding that plaintiff 12 is capable, notwithstanding her impairments, of performing 13 light work as defined in the regulations except she can lift 14 25 pounds, carry 15 pounds, and perform no standing for more 15 than 15 minutes continuously, no walking for more than 0.1 16 miles continuously, no pushing more than 35 pounds, no 17 pulling more than 25 pounds, no balancing activities that 18 require walking, and no crouching, stooping or crawling on 19 hands and feet. 20 At step four, applying that RFC ALJ Koennecke noted 21 that plaintiff is incapable of performing her past relevant 22 work as a cable television technician because it was 23 performed at the heavy exertional level. 24 At step five, ALJ Koennecke noted that plaintiff 25 was closely approaching advanced age and transitioned to 1 advanced age on August 25, 2020, and that under the 2 Medical-Vocational Guidelines, or the so-called grids, that 3 would direct a finding of disability after that date. 4 For the period prior to that date, ALJ Koennecke 5 found that plaintiff is capable of performing available work 6 in the national economy relying on the testimony of a 7 vocational expert who cited as examples office helper, ticket 8 taker, and garment sorter. The grid rule that applied 9 subsequent to August 25, 2020 is Grid Rule 202.06. 10 As you all know or you both know, the Court's 11 function in this case is limited to determining whether 12 correct legal principles were applied and the resulting 13 determination is supported by substantial evidence, which has 14 been described by the Second Circuit as an extremely 15 stringent standard. Substantial evidence means such 16 admissible and relevant evidence as a reasonable mind would 17 find sufficient to support a conclusion. Brault v. Social 18 Security Administration Commissioner,

. That 19 standard was later reiterated in Schillo v. Kijakazi, 31

from 2022. 21 The contentions in this case by the plaintiff are 22 twofold. She challenges the evaluation by the Administrative 23 Law Judge of her reported symptoms and resulting limitations. 24 And secondly, she challenges the evaluation of the medical 25 opinion evidence in the record. I note that because of the 1 partially favorable determination, the relevant period in 2 this case is March 5, 2018 to August 24, 2020. As a backdrop 3 I also note that it is plaintiff's burden through step four 4 to establish her limitations. Poupore v. Astrue,

, Second Circuit 2009. 6 The first issue I want to address is evaluation of 7 medical opinions. In this case because the plaintiff's 8 application for benefits was filed after March 27, 2017, the 9 case is subject to amended regulations which took effect for 10 applications filed after that date, under which the 11 commissioner no longer defers to or gives any specific 12 evidentiary weight, including controlling weight, to any 13 medical opinions including those from medical sources, but 14 instead considers whether those opinions are persuasive by 15 primarily considering whether they are supported by and 16 consistent with the record in the case. 20 C.F.R. Section 17 404.1520(c). Importantly, an ALJ must articulate in his or 18 her determination as to how persuasive he or she finds all of 19 the medical opinions and explain how he or she considered the 20 supportability and consistency of those opinions. In that 21 description an articulation must be sufficient to permit 22 meaningful judicial review. I also note as on aside where 23 there is conflicting medical evidence in the record, in the 24 first instance it is for the Administrative Law Judge to 25 resolve any conflicts. Veino v. Barnhart,

from 1 2002. 2 The first opinion in the record is from a nurse 3 practitioner whose name is illegible. It appears at 595 of 4 the Administrative Transcript. It is dated April 17, 2018, 5 which is shortly after plaintiff's alleged injury. It 6 indicates the nature of injury, low back pain with right 7 sciatica. It limits plaintiff to lifting not more than 8 20 pounds, which is somewhat inconsistent with the RFC. 9 Significantly, it also indicates, quote, "She cannot climb 10 ladders. The ladder restriction is permanent because she has 11 altered depth perception in the right eye." There is a 12 discussion of this opinion at page 21 of the Administrative 13 Transcript. The opinion was found not persuasive because, 14 one, it was rendered shortly after the claimant reported the 15 injury; two, it was not entirely supported by her subsequent 16 treatment notes; and three, it was inconsistent with the 17 functional capacity examination which we'll discuss shortly. 18 I find that there is error because there was 19 absolutely no discussion as to why the climbing ladder 20 restriction should not be included in the RFC. It's 21 indicated here that it is permanent. Plaintiff claimed 22 disability based on an altered depth perception and did have 23 surgery on her eyes. However, I also find that the error is 24 harmless. According to the Dictionary of Occupational 25 Titles, the positions of ticket taker, which is 344.667-010, 1 and office helper 239.567-010, and garment sorter 22.6877-014 2 all involve no climbing. Under climbing they all indicate 3 not present, activity or condition does not exist. 4 So while I find error, I find that that particular 5 error was harmless. 6 The next opinion discussed by ALJ Koennecke is from 7 Dr. Kevin Scott. It was in the form of an independent 8 medical examination made obviously under auspices of the 9 Workers' Compensation case. It appears at 644 to 647 of the 10 Administrative Transcript and it occurred or is dated 11 September 12, 2018. In it Dr. Scott indicates the following: 12 Her, meaning plaintiff, temporary work restrictions is she is 13 capable of working but in a sedentary capacity. No pushing, 14 pulling or lifting over 10 pounds. She needs to sit/stand as 15 needed. At this time I do not know how long the restrictions 16 will be for. The opinion was discussed by the ALJ at pages 17 21 to 22 and found not persuasive. 18 I would agree with the Administrative Law Judge 19 that because it is specifically opining on a temporary basis, 20 it is probably not persuasive. However, the other part of 21 the rationale that it was somewhat supported by examination 22 findings but inconsistent with the totality of the record in 23 my view is insufficient to allow for a meaningful judicial 24 review. There is no indication of in what manner it's 25 inconsistent with the record and what parts of the record 1 would be contrary to the opinion. 2 There is a reference by the Administrative Law 3 Judge to a functional capacity evaluation by a Therapist 4 Raymond Alessandrini. It is not in the record. There's no 5 explanation for why it is not. It is referenced several 6 times in the record, including 787 and 1219. It does seem to 7 support the RFC but the report is not available. There's no 8 meaningful discussion as to how Dr. Scott's opinion differs 9 from the functional capacity evaluation and prevents 10 meaningful judicial review. I find that that is error. 11 The next opinion is a series of opinions from 12 Dr. Richard Mutty, again who conducted an independent medical 13 examination of the plaintiff. The first occurred on April 2, 14 2019. It appears in the record at 648 to 652. And it limits 15 plaintiff to light work activity, with the 10 pound weight 16 lifting on an occasional basis. That's page 651. 17 The second is from December 11, 2019, and it 18 appears at 659 to 665. It limits plaintiff to occasional 19 lifting 10 pounds and occasional pushing and pulling 20 20 pounds, occasional standing and occasional walking, and never 21 climbing, kneeling or bending. 22 The third is from December 29, 2019 and it's at 656 23 to 657. It indicates: At the time of my prior examination, 24 I felt that her degree of disability was moderate to marked, 25 and since there has been no change in my recent examination 1 of December 10, 2019, it is felt that at the time of that 2 examination her degree of disability would still be 3 considered moderate to marked. 4 The opinions are discussed together at page 22 of 5 the Administrative Transcript and found not to be persuasive. 6 The reasons given are as follows: Although they were 7 somewhat supported by examination findings, they were not 8 consistent with the totality of the record, including the 9 claimant's activities, the objective medical evidence, or her 10 functional capacity examination. Once again, I find that 11 discussion to be deficient and does not permit meaningful 12 judicial review because it does not provide any specifics. 13 The Administrative Law Judge next went on to 14 reference the functional capacity evaluation of Raymond 15 Alessandrini that occurred on apparently March 23, 2020. As 16 I indicated, it does not appear on the record; it is, 17 however, referenced at several locations including 787, 1108, 18 1219 and 1113. It tracks the residual functional capacity as 19 discussed at page 22 and found to be, quote, "most 20 persuasive." The various references indicate the following 21 regarding that examination, quote, "Ms. Palm is capable of 22 assuming a position in the medium strength category. Her 23 maximum lifting capacity is 25.0 pounds, and her maximum 24 carrying capacity is 15.0 pounds. According to the 25 Dictionary of Occupational Titles, the medium strength 1 category is defined as having the ability to lift 20 to 2 50 pounds and carry 10 to 25 pounds. She would have to 3 follow the following restrictions: No standing for more than 4 15 minutes continuously, no walking for more than 0.1 miles 5 continuously, no pushing more than 35 pounds, no pulling more 6 than 25 pounds, no balancing activities that require walking, 7 no crouching/stooping/crawling on hands and feet." The 8 opinion's found to be the most persuasive because it is 9 supported by actual testing, which is not in the record, and 10 generally consistent with other evidence of the record, 11 including negative objective medical evidence and the 12 claimant's activities as noted above, including the ability 13 to ride a motorcycle. 14 Once again, we have little information as to the 15 extent of the motorcycle riding and I don't find this is a 16 sufficient explanation to allow for meaningful judicial 17 review. We don't know anything about the testing, the report 18 of the testing that was done by this individual on a one-time 19 basis apparently and so in my view it's of very limited 20 value. 21 The next opinion is from Dr. Lee Saltzgaber. It 22 was dated March 8, 2021. It appears at 1086 to 1092 of the 23 Administrative Transcript. It was a consultative examination 24 arranged by the Agency. The medical source statement 25 contained in that report is as follows: The claimant will 1 have moderate limitations for prolonged sitting, standing, 2 walking, climbing stairs, lifting and carrying, reaching, and 3 handling. 4 There is a discussion of this opinion at page 22 of 5 the Administrative Transcript as found to be somewhat 6 persuasive but the reaching and handling limitations were 7 found not to be supported by treatment history and 8 activities. The sitting, reaching, and handling limitations 9 were inconsistent with other opinions of record. This is 10 supported by her ability to go to a gun range and shoot a 11 gun. Once again, I find that we do not know the extent of 12 reaching involved in shooting the gun. I think this is a 13 deficient explanation. 14 I note that plaintiff has had shoulder injury and 15 surgery. Dr. Kirkpatrick at 641 indicated 25 percent loss of 16 use of the right arm. Dr. Saltzgaber found moderate 17 limitation in reaching. And as we will see in a moment, the 18 prior administrative medical findings of Dr. Baronos and 19 Dr. D. Brauer also indicate limitations in reaching, which 20 brings me to those opinions. 21 The first is the opinion of Dr. V. Baronos from 22 April 7, 2021. The prior administrative medical finding 23 appears at page 66 through 81 of the Administrative 24 Transcript. It is discussed at pages 22 to 23 of the 25 Administrative Transcript and found to be somewhat 1 persuasive. It is clear and I acknowledge that prior 2 administrative medical findings can supply substantial 3 evidence supporting the determination. Valdese-Capezio 4 versus Kijakazi,

, Second Circuit Court of 5 Appeals, 2023. The second is an opinion from Dr. D. Brauer 6 from June 23, 2021. It appears at pages 82 through 104, and 7 they're lumped together pretty much at pages 22 and 23 by the 8 Administrative Law Judge and found to be somewhat persuasive. 9 Significantly. Both of those contain limitations on 10 reaching. 11 Dr. Baronos's report at page 75 indicates reaching 12 in any direction limited, left in front and/or laterally, 13 left overhead. And the explanation given is as follows: Due 14 to limited range of motion of the left shoulder associated 15 with arthroscopy of the left shoulder completed in 2016, the 16 claimant is limited to occasional overhead and in front 17 and/or lateral reaching using the left arm as well as 18 occasional gross manipulation using the left arm. 19 Similarly, Dr. Brauer at page 97 contains a similar 20 limitation and bases it on Dr. Saltzgaber's opinion, 21 consultative opinion, showing moderate limitations for 22 reaching, and also indicates similarly due to limited range 23 of motion of the left shoulder associated with arthroscopy of 24 the left shoulder completed in 2016, the claimant is limited 25 to occasional overhead and in front and/or lateral reaching 1 using the left arm as well as occasional gross manipulation 2 of the left arm. 3 I find that the -- and I'll note that there is no 4 indication in the reports of the functional capacity 5 evaluation of Therapist Alessandrini, there is no indication 6 that it speaks to plaintiff's ability to reach. 7 So, in conclusion, I find insufficient explanation 8 for rejection of the partial -- or, partial rejection of the 9 nurse practitioner's opinion concerning climbing and the 10 opinions of Dr. Scott and Dr. Mutty regarding lifting, and 11 insufficient explanation for rejecting the reaching 12 limitation opined by Dr. Saltzgaber, Dr. Baronos and 13 Dr. Brauer. And I note that according to the Dictionary of 14 Occupational Titles all three of the positions cited by the 15 vocational expert in this case require frequent reaching. I 16 know that the Second Circuit has said that in Camille v. 17 Colvin,

from 2016, that when the regulations 18 regarding the evaluation of medical opinions are not 19 specifically followed and in the decision does not articulate 20 clearly supportability, consistency analyses, if a searching 21 record -- if a searching review of the record indicates that 22 the medical opinion regulations were followed, then the 23 decision can be upheld. I don't find that to be the case 24 here. I think that the discussion of the opinion evidence in 25 this case is woefully deficient and does not permit 1 meaningful judicial review, and I further indicate and find 2 that there were errors committed and matters were not 3 included in the RFC that should have concerning climbing and 4 reaching. 5 So, in conclusion, I'll grant judgment on the 6 pleadings to the plaintiff. I don't find persuasive evidence 7 of disability during the relevant period that we've been 8 discussing, and I think the matter should be returned for a 9 fuller analysis of the record opinion evidence and, if 10 possible, someone should try to obtain and include in the 11 record the functional capacity evaluation report by the 12 Therapist Raymond Alessandrini. 13 Thank you both for excellent presentations. I hope 14 you have a good day. 15 * * * 16 17 18 19 20 21 22 23 24 25 Decision - 5/22/2025 18

1 2 3 CERTIFICATION 4 5 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 6 Realtime Court Reporter, in and for the United States 7 District Court for the Northern District of New York, 8 do hereby certify that pursuant to Section 753, Title 28, 9 United States Code, that the foregoing is a true and correct 10 transcript of the stenographically reported proceedings held 11 in the above-entitled matter and that the transcript page 12 format is in conformance with the regulations of the 13 Judicial Conference of the United States. 14 15 16 Leen Donough 18 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 19 20 21 22 23 24 25