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

REBECCA W.,

Plaintiff, v. Civil Action No. 3:24-CV-587 (DEP)

FRANK BISIGNANO, Commissioner of Social Security,1

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN, GORTON LAW FIRM PETER A. GORTON, ESQ. P.O. Box 89, 1500 East Main Street Endicott, NY 13760-0089

FOR DEFENDANT

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

DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

1 Plaintiff’s complaint named Martin O’Malley, in his official capacity as the Commissioner of Social Security, as the defendant. On May 18, 2025, Frank Bisignano took office as the Commissioner of Social Security. He has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See

(g). The clerk is respectfully directed to amend the court’s records to reflect this change. ORDER Currently pending before the court in this action, in which plaintiff

seeks judicial review of a partially unfavorable administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to

(g), are cross-motions for judgment on the

pleadings.2 Oral argument was heard in connection with those motions on June 12, 2025, 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

2 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. ORDERED, as follows: 1) □ Defendant’s motion for judgment on the pleadings is GRANTED. 2) |The Commissioner’s determination that the plaintiff was not disabled at certain relevant times, and thus is not entitled to benefits under the Social Security Act for that period, 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: June 25, 2025 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x REBECCA W.,

Plaintiff,

vs. 3:24-CV-587

FRANK BISIGNANO, COMMISSIONER OF SOCIAL SECURITY,

Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on June 12, 2025, 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: LACHMAN, GORTON LAW FIRM P.O. Box 89 1500 East Main Street Endicott, New York 13760-0089 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Program Litigation, Office 2 6401 Security Boulevard Baltimore, Maryland 21235 BY: FERGUS J. KAISER, ESQ.

Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and counsel present by telephone.) 2 THE COURT: All right. Let me begin by thanking 3 both counsel, I found this case to be interesting from both a 4 factual and a legal perspective. 5 Before I address the merits, I did want to broach 6 the subject of consent. When this case was originally filed, 7 it was assigned to Magistrate Judge Miroslav Lovric, one of 8 my colleagues. It has since been transferred to me. The 9 consent form that was signed by Attorney Gorton on behalf of 10 his client specifically consented to the jurisdiction of 11 Magistrate Judge Lovric and so I will ask, can you confirm, 12 Mr. Gorton, that your client consents to my hearing and 13 deciding this case with direct appeal to the Second Circuit? 14 MR. GORTON: I confirm. 15 THE COURT: Thank you. Plaintiff has commenced 16 this action pursuant to

(g) 17 to challenge an adverse determination by the Commissioner of 18 Social Security finding that she was not disabled at the 19 relevant times and therefore ineligible for the benefits for 20 which she applied. 21 The background is as follows: Plaintiff was born 22 in October of 1974, she's currently 50 years of age. She 23 stands 5 foot 1 inch in height and weighs approximately 24 191 pounds. She lives in Endwell, New York with her husband 25 and two daughters who in 2023 were ages 14 and 16. Plaintiff 1 has a college degree in sociology. While in school she was 2 in regular classes. Plaintiff has a driver's license and can 3 drive. Plaintiff stopped working in August of 2021. When 4 she worked, she worked as a sales associate, restaurant 5 server, a substitute teacher, and a teacher's aide. Since 6 June 30, 2021, during the school years, plaintiff has worked 7 part time, approximately two to three days per week, as a 8 substitute teacher and a substitute teacher's aide. 9 Plaintiff suffers from irritable bowel syndrome, 10 exocrine pancreatic insufficiency which I will call EPI so 11 that I don't have to try to pronounce it again, obesity, 12 gastroesophageal reflux disease, or GERD, G-E-R-D. 13 Mentally, the plaintiff has been diagnosed as 14 suffering from conditions that have been variously described 15 as anxiety or general anxiety disorder, panic disorder, major 16 depressive disorder, medical withdrawal in remission, 17 specifically addressing Topamax and Xanax. She also claims, 18 and the licensed clinical social worker that she sees has 19 also opined, that she may suffer from post-traumatic stress 20 disorder, or PTSD. Upstate Psychiatric notes also indicate 21 borderline personality disorder and attention-deficit and 22 hyperactivity disorder. The plaintiff has stated that her 23 mental condition is under control with medication, that's at 24 page 34. 25 Plaintiff's activities of daily living include the 1 ability to groom, clean, do laundry, cook, do some shopping, 2 socialize with friends and family. She uses social media, 3 she watches television, listens to the radio, she reads, she 4 goes out to dinner, she walks, exercises, she enjoys boating 5 and going to the beach. That's indicated at page 504 and 6 other points in the record as well. 7 Procedurally, plaintiff applied for Title II 8 benefits on October 28, 2021, alleging an onset date of 9 January 1, 2020 which was later amended to June 30, 2021. At 10 page 214 she claims disability based on anxiety, depression, 11 PTSD, OCD, drug withdrawal, IBS, GERD, and acid reflux. The 12 plaintiff later at the hearing, that's at page 31 and 32 of 13 the Administrative Transcript, stated she cannot work due to 14 extreme pancreatic insufficiency and IBS and that no other 15 condition contributes to her disability, and she amplified by 16 saying that she simply spends too much time in the restroom, 17 that's at page 33, and would therefore be away from work and 18 off task. 19 A hearing was conducted on August 7, 2023 by 20 Administrative Law Judge Jeremy Eldred to address plaintiff's 21 claim for benefits. A vocational expert testified at that 22 hearing. On August 29, 2023, ALJ Eldred issued an 23 unfavorable decision which became a final determination of 24 the Agency on March 12, 2024 when the Social Security Appeals 25 Council denied plaintiff's request for review. This action 1 was commenced on April 30, 2024, and is timely. 2 In his decision, ALJ Eldred applied the familiar 3 five-step sequential test for determining disability. He 4 first noted that plaintiff is insured through March 31, 2027 5 for benefits. 6 At step one, he concluded plaintiff had not engaged 7 in substantial gainful activity since June 30, 2021, but did 8 acknowledge that she does work part time as a substitute 9 teacher and substitute teacher aide, although it does not 10 rise to a level of substantial gainful employment. 11 At step two, he concluded that plaintiff does 12 suffer from severe impairments that impose more than minimal 13 limitations on her ability to perform basic work activities, 14 including IBS and pancreatic insufficiency and obesity. 15 At step three, he concluded, however, that those 16 conditions do not meet or medically equal any of the listed 17 presumptively disabling conditions set forth in the 18 regulations, specifically considering Listings 5.00, 9.00, as 19 well as Social Security Ruling 19-2p which addresses obesity. 20 The ALJ then, based on the entirety of the record, concluded 21 that notwithstanding her conditions, plaintiff retains the 22 residual functional capacity, or RFC, to perform a full range 23 of light work as defined in the regulations. 24 At step four, applying that RFC, the administrative 25 law judge concluded that plaintiff is capable of performing 1 her past relevant work as a teacher aide and therefore did 2 not progress to step five of the sequential test. 3 As you know, the court's function in this case is 4 limited to determining whether substantial evidence supports 5 the Commissioner's determination and correct legal principles 6 were applied. Substantial evidence of course is defined as 7 such relevant evidence as a reasonable person would find 8 sufficient to support a conclusion. The Second Circuit has 9 spoken to the test and its rigor, including in Brault v. 10 Social Security Administration Commissioner,

11 from 2012, and Schillo v. Kijakazi,

, that's from 12 2022 from the Second Circuit. 13 In this case, plaintiff raises a couple of 14 contentions, I've lumped them, grouped them into four. 15 The first alleges an error in the residual 16 functional capacity finding and specifically the fact that it 17 does not include any limitations related to plaintiff's 18 gastro problems and need to use the bathroom, and as a 19 subcategory plaintiff argues that that results from error in 20 evaluating the medical opinions of record. 21 Secondly, the plaintiff argues that it was not 22 proper to rely on the prior administrative medical findings 23 which concluded that plaintiff's mental condition is not 24 severe because it speaks to a matter alleged -- allegedly 25 reserved to the Commissioner. 1 The third argument is that plaintiff's mental 2 impairment should have been considered severe at step two of 3 the sequential evaluation. 4 And the fourth argument, which I don't understand, 5 is that the errors affect the step five finding because there 6 was no step five finding. 7 Turning to the step two argument, it is true that 8 at step two, a claimant need only show that he or she has a 9 medically determinable impairment that rises to the level of 10 severity. The threshold of severity is met when the 11 condition significantly limits the physical or mental ability 12 of the claimant to perform basic work activities, which 13 include the ability to engage in exertional functions, see, 14 hear or speak, understand, remember and carry out simple 15 instructions, use judgment, respond appropriately to 16 supervision, coworkers and usual work situations, and deal 17 with changes in a routine work setting. 20 C.F.R. Section 18 404.1522. 19 The requirement to establish a severe impairment at 20 step two admittedly is de minimus and is intended only to 21 screen out the weakest of cases. However, the mere presence 22 of a disease or impairment for establishing that a person has 23 been diagnosed or treated for a disease or impairment is not 24 by itself sufficient to render a condition severe. 25 The administrative law judge considered plaintiff's 1 mental conditions and engaged in an analysis of the so-called 2 B and C criteria of the regulations and specifically found 3 mild limitation in all four of the prescribed domains. In my 4 view, that determination is supported by substantial 5 evidence. 6 The record includes the consultative evaluation of 7 Dr. Sara Long dated January 20, 2022, that's at 502 to 505 of 8 the Administrative Transcript. Based upon her consultative 9 examination, Dr. Long wrote the following: For appearance, 10 plaintiff was neat and well groomed. Posture and motor 11 behavior were normal. Eye contact was appropriate. For 12 speech, speech was fluent and clear with adequate receptive 13 and expressive language. Thought processes, throughout the 14 evaluation, she was coherent and goal directed. There was no 15 indication of any sensory or thought disorder. Affect, she 16 displayed a full range of appropriate affect in speech and 17 thought content. She reports PTSD, however, what she reports 18 does not appear to meet that criteria. For mood, euthymic. 19 Sensorium, clear. Orientation, intact. Attention and 20 concentration, intact. Recent and remote memory skills, 21 intact. Cognitive functioning, Ms. [W.] appears to be 22 functioning on an average intellectual level with a good fund 23 of information. Insight, fair. Judgment, fair. 24 In the medical source statement, Dr. Long found no 25 limitations with the exception of mild limitations regarding 1 regulating emotions. 2 The prior administrative findings of Dr. M. Woogen, 3 that was dated March 14, 2022, it's in Exhibit 2A, and Dr. M. 4 Juriga from June 6, 2022, 3A, found no severe mental 5 impairment. 6 The administrative law judge also noted that 7 plaintiff is currently working as a substitute teacher and 8 substitute teacher aide two to three times a week. 9 Plaintiff's hearing testimony, specifically pages 33 and 34 10 which I mentioned earlier, support the determination, and 11 plaintiff has not engaged in any psychiatric hospitalization. 12 The administrative law judge rejected an opinion 13 from Licensed Clinical Social Worker Nicole Babcock who 14 issued a questionnaire on January 25, 2023, it appears at 553 15 to 555 of the Administrative Transcript. 16 When it comes to considering opinion evidence, this 17 case is subject to the regulations which took effect for 18 claims filed after March 27, 2017, as are set forth in 20 19 C.F.R. Section 404.1520(c). They require consideration of 20 several factors including, most notably, whether the opinions 21 are supported by and consistent with the record in the case, 22 and under the regulations and case law, an ALJ must 23 articulate in his or her determination how persuasive he or 24 she finds all of the medical opinions and explain how he or 25 she considered the factors of supportability and consistency 1 in a manner which will permit meaningful judicial review. 2 In this case, as I indicated previously, or maybe I 3 didn't, the administrative law judge found Dr. Woogen, 4 Dr. Juriga, and Dr. Long's opinions persuasive at page 17. 5 And I find that that determination is supported by 6 substantial evidence and does not run afoul of the 7 regulations. 8 In terms of the opinion of the licensed clinical 9 social worker, the administrative law judge discussed that 10 opinion at pages 17 and 18 of the record and gave the 11 following reasons for not finding it persuasive. One, it 12 does not express a clear opinion regarding the claimant's 13 mental functions over a continuous period of 12 months; two, 14 it cites no mental status examination findings to support her 15 opinion; three, a review of the underlying treatment records 16 do not support a continuous 12-month period of significant 17 mental limitations; and four, the assessment is inconsistent 18 with the opinions of Dr. Woogen, Dr. Juriga, and Dr. Long. 19 I've looked carefully at the opinion and it doesn't 20 appear to be very helpful. It essentially, without much 21 commentary, indicates a range in each of the specified 22 categories which ranges from none/mild at plaintiff's highest 23 current level, or highest at some instances, to extreme in 24 the lowest and it doesn't really articulate during what 25 periods those apply. In my view, the questionnaire is 1 totally unhelpful and I also agree, it's not supported by the 2 record and is inconsistent with the other medical opinions of 3 record. 4 So I find no error in the rejection of that opinion 5 and I find that the step two determination that plaintiff 6 does not suffer from a severe mental impairment that imposes 7 more than minimal limitations on her ability to perform basic 8 work functions is supported by substantial evidence. 9 The second argument regarding the prior 10 administrative medical findings is interesting. As I 11 understand it, Dr. Woogen and Dr. Juriga found no severe 12 mental impairment, and the administrative law judge found 13 that to be persuasive. If I understand the argument, because 14 that is essentially dispositive of the issue of disability, 15 at least from the mental point of view, it speaks to a matter 16 under the regulations that is reserved to the Commissioner. 17 It's my -- Dr. B. Stouter at page 52 found no physical 18 impairment, Dr. A. Vinluan, 59, also and the administrative 19 law judge, page 18, rejected that and gave plaintiff the 20 benefit of the doubt and found severe physical impairment. 21 It's clear that prior administrative findings can provide 22 substantial evidence to support a determination, 23 Valdes-Ocasio v. Kijakazi,

from the Second 24 Circuit 2023. And there are many other cases that say 25 likewise. 1 In this case, the argument raised is fascinating. 2 It has not to my knowledge been accepted by any court. It 3 was discussed and, after a lengthy analysis, it was rejected 4 by my colleague, former colleague, now-retired Magistrate 5 Judge Christian F. Hummel in Loni S. v. Commissioner of 6 Social Security,

from the Northern District 7 of New York, June 27, 2023. The case was also followed in 8 another jurisdiction in Bagdasarian v. O'Malley,

3430565 from the District of Massachusetts, 2024. I will 10 simplify by simply saying that Magistrate Judge Hummel did a 11 thorough analysis and found, based on the consideration of 12 the POMS as well as the relevant regulations, that the 13 specialists who issued prior administrative medical findings 14 are part of the Commissioner's designated team and therefore 15 the prohibition against speaking to matters reserved to the 16 Commissioner does not extend to prior administrative medical 17 findings and I agree with Magistrate Judge Hummel's analysis. 18 And so I reject that argument. I do not find any error in 19 relying upon the prior administrative medical findings. 20 The interesting, most interesting factual issue 21 here is residual functional capacity and whether it should 22 have included any limitations based on plaintiff's gastro 23 condition and her need to use the bathroom often and 24 sometimes on an urgent basis. A claimant's RFC represents 25 the finding of a range of tasks that claimant is capable of 1 performing notwithstanding his or her impairments, 20 C.F.R. 2 Section 404.1545(a). Ordinarily that means a claimant's 3 maximum ability to perform sustained work activities in an 4 ordinary setting on a regular and continuing basis, meaning 5 eight hours a day for five days a week or an equivalent 6 schedule. Tankisi v. Commissioner of Social Security, 521

, Second Circuit 2013. An RFC determination 8 is informed by consideration of all of the claimant's 9 physical and mental abilities, symptomology, and other 10 limitations that could interfere with performance of basic 11 work activities. 12 The backdrop to this argument is twofold. First, 13 it is the plaintiff's burden through step four to establish 14 her limitations on the ability to perform basic work 15 functions. Poupore v. Astrue,

, Second Circuit 16 2009. Secondly, the mere fact of a diagnosis and/or 17 treatment for a medical condition does not mean automatically 18 that there are limitations associated with that condition on 19 the ability to perform basic work functions. 20 As plaintiff has argued, Dr. Jagraj Rai has issued 21 an opinion on a questionnaire form dated July 28, 2023, 642 22 and 643 of the Administrative Transcript. Dr. Rai, as I 23 understand it, is the plaintiff's primary physician, not the 24 gastroenterologist that plaintiff has also seen. And he 25 answers questions as follows: Medical conditions suffered by 1 the claimant would require unlimited access to the bathroom. 2 Yes. The need to use the bathroom would be urgent and 3 immediate. Yes. And it specifies that the condition has 4 prevailed over the last two years. Very little explanation 5 given. It's basically a check-box form, which is not always 6 the most helpful when it is not accompanied by explanation. 7 The administrative law judge reviewed that and found that 8 opinion not to be persuasive. It is discussed at page 18 of 9 the Administrative Transcript. The reasons provided are the 10 following: He is not claimant's gastroenterologist, the 11 medical records do not document disabling gastrointestinal 12 impairments, and the opinion is inconsistent with the 13 information in the gastroenterological records as discussed 14 above, and there was a healthy discussion of those records in 15 the administrative law judge's decision. 16 I find that that rejection is supported by 17 substantial evidence. I have reviewed the medical records 18 extremely carefully. As a backdrop, I note any RFC 19 limitation must meet the 12-month durational requirement of 20 20 C.F.R. Section 404.1509 and

423(d)(3). James K.W. v. Commissioner of Social Security, 22

, Western District of New York, April 15, 23 2024. That case cites Barnhart v. Walton,

from 24 2002. 25 I have reviewed the records and made a timeline 1 which shows essentially three discrete flare-ups of this 2 plaintiff's condition from March 13, 2020 through June 13, 3 2023 based on the available records of Lourdes 4 Gastrointestinal, and those are at 3F, 5F, and 11F, and 5 Lourdes Vestal Internal Medicine, 10F. I also reviewed the 6 record of plaintiff's emergency room visit complaining of 7 diarrhea that's at 13F. 8 I found that there were some periods, for example, 9 from January 5, 2021, that's at page 492 of the record, IBS 10 not well controlled with current medications, and as that 11 went along, there was instances of diarrhea. Prior to that 12 time, there was a denial of any diarrhea on March 13, 2020 13 that's at 556; July 24, 2020, that's at 560; October 29, 14 2020, that's at 565. As the timeline goes on, on April 21, 15 2021, at 484, plaintiff indicates more frequent bowel 16 movements when forgetting to take Metamucil. There is an 17 indication of plaintiff being taken out of work for I think 18 three days in April of 2021 due to a flare-up in IBS. By 19 November 24, 2021 however, plaintiff indicated feeling 20 better. Bowel movements three to four times per week with 21 medications. I also note that on November 20, 2021, that's 22 at 583, plaintiff denied experiencing diarrhea. 23 There appears to be a second period, January 24, 24 2021, diarrhea over the past 19 days, four to six times per 25 day. That's at 588 and 591. There was an emergency room 1 visit, 2/7/22, diarrhea five times per day for one-and-a-half 2 months, that's at 650. By February 11, 2021, that's at 511, 3 plaintiff was stable. November 21, not mentioned, diarrhea 4 not mentioned. March 11, 2021, some improvement, down to 5 four times per day. April 14, 2022 at 595, no mention of 6 diarrhea. 5/31/2022, that's at 611, no diarrhea. 5/15/2022, 7 that's at 607, no mention. October 12, 2021, no mention of 8 diarrhea, that's at 616. At -- but June 16, 2021 -- 2022, 9 diarrhea four to eight times per day, that's at 626. By 10 December 8, 2021, feeling good from GI perspective, symptoms 11 manageable, that's at 630 to 633. 12 So what I see is possibly three discrete times when 13 she had flare-ups, some of which were due to -- were before 14 she went on Metamucil, and forgetting to take her medication, 15 but there were a lot of instances where she denied diarrhea. 16 January 24, 2021, for example, significant diarrhea 17 attributed to discontinuance of psychiatric medications and 18 she was told to use Imodium and Haikou Cimino. 19 So in conclusion, I agree with the determination of 20 the administrative law judge that there was no limitation on 21 plaintiff's ability to perform basic work functions that 22 extended over a 12-month continuous period. I'll note that 23 the administrative law judge, in addition to these records, 24 also considered plaintiff's ability to work part time two to 25 three times per week as a part-time substitute aide and 1 substitute teacher, and also her robust administrative -- 2 activities of daily living which are properly considered and 3 were very extensive, including boating and going to the 4 beach. 5 Accordingly, I find that plaintiff failed to prove 6 limitations resulting from her IBS and gastro issues present 7 for a continuous period of 12 months requiring inclusion in 8 the RFC. 9 So in sum, I find correct legal principles were 10 applied, the resulting determination is supported by 11 substantial evidence. I'll grant judgment on the pleadings 12 to the defendant and order dismissal of plaintiff's 13 complaint. 14 Thank you all for excellent presentations. Enjoy 15 the rest of the day. 16 MR. GORTON: Thank you, your Honor. 17 MR. KAISER: Thank you, your Honor. 18 (Proceedings Adjourned, 12:02 p.m.) 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RMR, 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 13th day of June, 2025. 17 18 19 /S/ JODI L. HIBBARD

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