UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________ BERNICE A., Plaintiff, v. 5:19-CV-0688 (ML) ANDREW SAUL, Commissioner of Social Security Administration, Defendant. ________________________________________ APPEARANCES: OF COUNSEL: ELIZABETH V. KRUPAR, ESQ. Legal Aid Society of Mid-New York, Inc. Counsel for the Plaintiff 221 South Warren Street, Suite 310 Syracuse, New York 13202 SOCIAL SECURITY ADMINISTRATION CANDACE LAWRENCE, ESQ. Counsel for the Defendant J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203

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 42 U.S.C. §§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 3, 2020, during a telephone

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. 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’ 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 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) The Commissioner’s determination that Plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 12) is GRANTED. 3) Plaintiffs motion for judgment on the pleadings (Dkt. No. 11) is DENIED. 4) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiff's Complaint in its entirety. Dated: August18, 2020 Binghamton, New York / Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------------------- BERNICE A. -versus- 19-CV-688 ANDREW M. SAUL, COMMISSIONER OF SOCIAL SECURITY

--------------------------------------------------------- TRANSCRIPT OF TELEPHONE CONFERENCE held in and for the United States District Court, Northern District of New York, at the Federal Building, 15 Henry Street, Binghamton, New York, on August 3, 2020, before the HON. MIROSLAV LOVRIC, United States Magistrate Judge, PRESIDING.

APPEARANCES: FOR THE PLAINTIFF: LEGAL AID SOCIETY OF MID-NEW YORK, INC. BY: ELIZABETH V. KRUPAR, ESQ. Syracuse, New York

FOR THE DEFENDANT: SOCIAL SECURITY ADMINISTRATION BY: CANDANCE LAWRENCE, ESQ.

Boston, MA THE COURT: I'm going to turn now to the Decision and the Order of the Court, so first I start out with a short introduction. This matter has been referred to me for all proceedings and entry of a final judgment pursuant to the Social Security Pilot Program here in the Northern District of New York under General Order number 18 and in accordance

with the provisions of 28 USC Section 636(c) and also Federal Rule of Civil Procedure 73 and also Northern District of New York Local Rule 73.1, and then lastly by way of the consent of the parties. This action involves judicial review of an adverse determination by the Commissioner of Social Security pursuant to 42 United States Code Sections 405(g) and 1383(c). In this appeal I have reviewed the following: One, the Social Security Administration Record and Transcript that can be found at docket number 10. Included in that docket number 10 I reviewed the Administrative Law Judge's Hearing Decision and the transcript of oral hearing. In my decision when I do refer to any of the Administrative Record, the Administrative Transcript, I will use the letter T, T as in Thomas, to reference that. So as to the Law Judge's Hearing Decision and Transcript that can be found at T. 7 through 26 and 30 to 51.

I also reviewed the plaintiff's brief at docket number 11, the defendant's brief at docket number 12 and I generally also reviewed the other entries on the docket. Lastly, I have also taken into consideration today's oral arguments from the parties in reaching and rendering a decision in this matter. The procedural history of the case is as

follows: The plaintiff protectively filed for Disability Insurance Benefits, also called DIB, and Supplemental Security Income, known as SSI, for these benefits on March 24, 2016 and alleging disability beginning on December 31, 2015. See docket number 10. The applications were denied initially by notice dated May 19, 2016, see T. 90 through 97. On June 27, 2016 plaintiff requested a hearing before an Administrative Law Judge. See T. 98 through 99. The video hearing was held in front of an Administrative Law Judge, who I'll refer to as ALJ, Mr. Stanley Chin, and that occurred on May 17 of 2018. See T. 30 through 51. Additionally, Carly Coughlin, a Vocational Expert, who I will refer to as VE, also testified at that hearing. The ALJ utilized the five-step process for evaluating disability claims, see T. 7 through 26, and found that plaintiff was not disabled from her alleged onset date

through the date of the decision because, as the ALJ indicated, she was capable of performing jobs that existed in significant numbers in the national economy. See T. 7 through 26. See also 20 CFR Section 404.1520(a)(4), i through v, describing the steps in the sequential evaluation. See also 20 CFR Section 404.1566(b). If the claimant can perform work in the national economy, he is not disabled. On June 8, 2018 the ALJ issued an unfavorable

decision. See T. 7 through 26. Plaintiff requested review of the hearing decision before the appeals counsel on July 30, 2018. See T. 165 through 169. On April 16, 2019 the appeals counsel denied the request for review. See T. 1 through 6, after which time the Commissioner's determination became final and this appeal followed. I want to set forth the generally applicable law and standards that apply in my review and in my reaching a decision. Under the first category of disability standard to be considered disabled, a plaintiff seeking Disability Insurance Benefits or SSI disability benefits must establish that she is unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment which can be expected to result in death or which has lasted or can be expected to last for a continuous period of not less than 12 months. See 42 USC Section 1382c(a)(3)(A).

In addition, the plaintiff's physical or mental impairment or impairments must be of such severity that he is not only unable to do his previous work but cannot, considering his age, education and work experience engage in any other kind of substantial gainful work which exists in the national economy regardless of whether such work exists in the immediate area in which he lives or whether a specific job vacancy exists for him or whether he

would be hired if he applied for work. See 42 United States Code Section 1382c(A)(3)(B). The Commissioner used a five-step process set forth at 20 CFR Sections 404.1520 and 416.920 to evaluate disability insurance and SSI disability claims. First, the Commissioner considers whether the claimant is currently engaged in substantial gainful activity. If he is not, the Commissioner next considers whether the claimant has a severe impairment which significantly limits his physical or mental ability to do basic work activities. If the claimant suffers from an impairment the third inquiry is, whether based solely on medical evidence, the claimant has an impairment which meets or equals the criteria of an impairment listed in Appendix 1 of the regulations. If the claimant has such an impairment, the Commissioner will consider him disabled without considering vocational factors such as age, education and

work experience. Assuming the claimant does not have a listed impairment, the fourth inquiry is whether, despite the claimant's severe impairment, he has the residual functional capacity to perform his past work. Finally, if the claimant is unable to perform his past work, the Commissioner then determines whether there's other work which the claimant can perform. See Berry V Schweiker at 675 F.2d 464 at 467, Second Circuit 1982. See also 20 CFR Sections 404.1520 and

416.920. The plaintiff has the burden of establishing disability at the first four steps; however, if the plaintiff establishes that her impairment prevents her from performing her past work, the burden then shifts to the Commissioner to prove the final step. As for the scope of review. In reviewing a final decision of the Commissioner, a Court must determine whether the correct legal standards were applied and whether substantial evidence supported the decision. See Selian versus Astrue at 708 F.3d at 417. Also see Brault v Social Security Administration Commissioner, 683 F.3d 443 at 448, Second Circuit 2012 and see also 42 United States Code Section 405(g). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Talavera versus Astrue, 697 F.3d 145 at 151, Second Circuit 2012. It must be more than a

scintilla of evidence scattered throughout the administrative record. However, this standard is a very deferential standard of review, even more so than the clearly erroneous standard. See Brault, 683 F.3d at 448. A reviewing court may not substitute it's interpretation of the administrative record for that of the Commissioner if the record contains substantial support for the ALJ's decision. See also Rutherford v Schweiker, 685

F.2d 60 at 62, Second Circuit 1982. In reviewing a final decision by the Commissioner under 42 United States Code Section 405, the Court does not determine de novo whether a plaintiff is disabled. See 42 US Code Sections 405(g). Also 1383(c)(3). And see also Wagner versus Secretary of Health and Human Services, 906 F.2d 856 at 860, Second Circuit 1990. Rather, the Court must examine the Administrative Transcript to ascertain whether the correct legal standards were applied and whether the decision is supported by substantial evidence. See Shaw versus Chater, 221 F.3d 126 at 131, Second Circuit 2000. Also see Schaal versus Apfel, 134 F.3d 496 at 500 to 501, Second Circuit 1998. Substantial evidence is evidence that amounts to more than a mere scintilla and it has been defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. See Richardson versus Perales, 402 United States 389 at 401, 1971. If supported by substantial evidence, the

Commissioner's factual determinations are conclusive and it is not permitted for the courts to substitute their analysis of the evidence. See Rutherford v Schweiker, 685 F.2d 60 at 62, Second Circuit 1982. In other words, this Court must afford the Commissioner's determination considerable deference, and may not substitute its own judgment for that of the Commissioner, even if it might justifiably have reached a different result upon a de novo review. See

Valente versus Secretary of Health and Human Services, 733 F.2d 1037 at 1041, Second Circuit 1984. An ALJ is not required to explicitly analyze every piece of conflicting evidence in the record. See Mongeur v Heckler, 722 F.2d 1033 at 1040, Second Circuit 1983 case. See also Miles versus Harris, 645 F.2d 122 at 124, a Second Circuit 1981 case. However, the ALJ cannot pick and choose evidence in the record that supports his conclusions. See Cruz v Barnhart, 343 F. Supp 2d 218 at 224, a Southern District New York 2004 case. See also Fuller v Astrue, number 09-CV-6279. It can be found at 2010 Westlaw, 5072112 at 6. A Western District New York, December 6, 2010 case. The following facts briefly indicate the plaintiff's general background: First, plaintiff was 51 years old on December 31, 2015, the date that she alleges she became disabled because of arthritis, a slipped disc, a shoulder injury, depression, and Posttraumatic Stress

Disorder. See T. 170 and T. 203. The record shows that she worked part-time or full-time as a taxi driver until December of 2016. See T. 330, 395, 467, 485, 489, 528, 537 and 653. And then beginning in June of 2017 plaintiff worked as a full-time personal home aid. See T. 507 and 659. By December of 2017, however, she was reportedly not getting the work hours she was previously, that she was previously obtaining, and

continued to work hard on getting more hours while looking for another job. See T. 661. In May 2018 plaintiff testified that she was working anywhere from 4 to 24 hours a week as a personal care aid but the number of hours depended on if they gave her work and it was supposed to be, according to the plaintiff, to be 40 hours. See T. 37 through 38. For additional facts, I direct the parties to the ALJ's decision, that's found at T. 7 through 26. In reaching his decision, the ALJ set forth in a report that's found in T. 7 through 26. I summarize the ALJ's decision as follows: The ALJ indicated, first, the claimant meets the insured status requirements of the Social Security Act through December 31 of 2020. Next, the claimant has not engaged in Substantial Gainful Activity, also known as SGA, since December 31 of 2015, the alleged onset date. See 26 CFR

404.1571, et seq. and also 416.971, et seq. Next, the ALJ notes the claimant has the following severe impairments: Right shoulder impairment, cervical spine impairment, bilateral foot impairments, asthma, obstructive sleep apnea, obesity, Posttraumatic Stress Disorder, and depressive disorder and for these severe impairments see 20 CFR 404.1520(c) and 416.920(c). Next, the ALJ notes the claimant does not have

an impairment or combination of impairments that meets or medically equals the severity of one of the listed impairments in 20 CFR Part 404, Subpart P, Appendix 1. See 20 CFR 404.1520(d). See also 404.1525. Additionally see 404.1526. Also see 416.920(d). Also, 416.925 and lastly see 416.926. The ALJ notes, after careful consideration of the entire record, the ALJ concluded that the claimant has the residual functional capacity to perform light work as defined in 20 CFR 404.1567(b) and 416.967(b), except she can occasionally climb ladders, ropes and scaffolds. She can occasionally reach overhead with the right upper extremity. She must occasionally avoid exposure to environmental irritants, such as fumes, odors, dust, gases and poorly ventilated areas and she is limited to short and simple instructions and tasks in a routine work setting. The ALJ further noted the claimant is unable,

that being not able to, perform any past relevant work. See 20 CFR 404.1565 and 416.965. The claimant was 51 years old which is defined as an individual closely approaching advanced age on the alleged disability onset date. See 20 CFR 404.1563 and 416.963. The ALJ went on to say the claimant has a limited education and is able to communicate in English. See

20 CFR 404.1564 and 416.964. Next, the ALJ indicated transferability of job skills is not material to the determination of disability because using the Medical-Vocational Rules as a framework supports a finding that the claimant is not disabled whether or not the claimant has transferable job skills. See SSR 82-41 and 20 CFR Part 404, Subpart P, Appendix 2. The ALJ went on further to state, considering the claimant's age, education, work experience and residual functional capacity there are jobs that exist in significant numbers in the national economy that the claimant can perform. See 20 CFR 404.1569. Also 404.1569(a). Further, 416.969 and lastly 416.969(a). The ALJ noted the claimant has not been under a disability, as defined in the Social Security Act, from December 31, 2015 through the date of this decision. See 20 CFR 404.1520(g) and 416.920(g).

And then lastly, the ALJ's decision and conclusion states that: Based on the application for a period of disability and Disability Insurance Benefits protectively filed on March 24, 2016, the ALJ concluded the claimant is not disabled under Sections 216(i) and 223(d) of the Social Security Act. Based on the application for Supplemental Security Income, which was protectively filed on March 24, 2016, the claimant is not disabled under Section

1614(a)(3)(A) of the Social Security Act. In reviewing the record and the plaintiff's and defendant's briefs, I find that there are three essential issues in contention: First, whether the ALJ properly weighed the medical evidence, specifically the opinion of Dr. Saponara; second, whether the ALJ properly assessed plaintiff's subjective symptoms; and third, and last, whether substantial evidence supports the ALJ's step five finding. My analysis and discussion on these three areas of contention is as follows: As to the first issue, whether the ALJ properly weighed the medical evidence, specifically, the opinion of Dr. Saponara. I find that the ALJ did properly weigh the opinion of Dr. Saponara. While the ALJ failed to explicitly apply the Burgess factors when assigning the weight to Dr. Saponara, for the reasons stated in defendant's memorandum of law, I find that the ALJ did not err.

More specifically, the ALJ gave a well-articulated rationale for giving only partial weight to Dr. Saponara's opinion. See T. 7 through 26, because it was based on a treating relationship. See T. 19. The ALJ adopted the 20-pound limit for occasional lifting and carrying but rejected the remaining limitations. See T. 15 and 19. The ALJ explained that Dr. Saponara's opinion is not entirely consistent with the record as a whole. See T. 19.

For example, the limitation on use of foot controls is not consistent with the claimant's reports in May 2016 that she was working 19 hours a week as a driver. See T. 327. Additionally, physical therapy notes from July 2016 noted improvement in walking, standing, and climbing stairs and an examination in October 2016 showed normal ambulation. See T. 468 and 571. See also Anselm versus Commissioner of Social Security at 737 F Appendix 552 at 555, Second Circuit 2018. The ALJ may set aside an opinion of a treating physician that is contradicted by the weight of other record evidence. Although the ALJ did not make specific reference to Burgess factors, the ALJ recited Dr. Saponara's specialization as a DPM, and also the ALJ noted the frequency, length, nature and extent of treatment, through a detailed recitation of the medical care plaintiff was afforded by him. See T. at 18. The ALJ detailed recitation of medical care plaintiff was afforded. In his analysis the

ALJ addressed Dr. Saponara's treating relationship with plaintiff as a factor in affording his opinion partial weight and identified the medical records, including physical therapy records, that were inconsistent with Dr. Saponara's medical opinion. See T. 19, T. 327 through 333, also 468 and lastly T. 571. Additionally, a searching review of the record by this Court assures the Court that the substance of the

treating physician rule was not traversed. The ALJ's decision was therefore also consistent in this way with the Second Circuit's recent holding in Estrella versus Berryhill, 925 F.3d 90, Second Circuit 2019. Addressing the factors of standing and walking limitations. The ALJ I find did not adopt Dr. Saponara's opinion that plaintiff could only stand for up to three hours and walk for up to two hours during a workday because it was inconsistent with the record as a whole, including plaintiff's physical therapy notes from July 2016 and the findings from an October 2016 examination. See again T. 19, 468 and 571. The ALJ explained that despite plaintiff's history of foot pain due to multiple impairments, including osteoarthritis, pes planus, also known as flat feet, and planter fascitis, the treatment records show improvement with conservative care, including orthotics and physical therapy. See T. at 17. In addition, multiple examinations have shown

normal ambulation. Also see T. at 17. Plaintiff's testimony in May 2018 also made clear that her foot pain was largely alleviated by her orthotics and shoes. See T. at 42. Turning to the issue of foot controls. The ALJ also declined to adopt Dr. Saponara's restriction on the use of foot controls because it was not supported by the record. See T. at 16. It is unnecessary for the Court to reach the question since none of the jobs identified by the

Vocational Expert, that being agricultural sorter; second, sandwich-board carrier; or third, housekeeper, require the use of foot controls. In other words, none of these jobs identified require any foot controls. The Court notes that any error by the ALJ related to the disputed limitations for foot controls is harmless to the extent these limitations did not impact plaintiff's ability to perform jobs identified by the Vocational Expert and the ALJ. Turning next to the postural and environmental limitations. The ALJ also did not adopt Dr. Saponara's restrictions on climbing stairs, balance, stoop, kneel, crouch or crawl and occasionally be exposed to extreme cold or height or vibrations or unprotected heights and moving mechanical parts and occasionally operate a vehicle. Because none of the jobs identified by the ALJ require any of those functions that I just mentioned and the disability determination would not have changed, the error, if it is an

error, is harmless to the extent these limitations did not impact plaintiff's ability to perform jobs identified by the Vocational Expert and the ALJ. I turn next to the second issue of contention, whether the ALJ properly assessed plaintiff's subjective symptoms. I find that the ALJ did properly assess plaintiff's testimony. The ALJ found that plaintiff's statements concerning the intensity, persistence and limiting

effects of her symptoms were not entirely consistent with the medical evidence and other evidence in the record. See T. at 16. The ALJ stated, in general, examinations and aging have shown few significant abnormalities. Additionally, treatment has been primarily routine and conservative and the claimant has reported some improvements with treatment. Furthermore the ALJ notes, the claimant's reported activities are not limited to the extent that would be expected to give her complaints of disabling symptoms and limitations. For example, she has been able to maintain part-time jobs, initially as a taxicab driver and later as a personal care attendant, throughout much of the relevant period. The ALJ here did address and consider several of these factors. And, in any event, the Court was able to glean the rationale of the ALJ's decision. Therefore, based

on what I just indicated and the fact that the Court finds defendant's arguments persuasive on this point, I find that the ALJ did properly assess the plaintiff's testimony. The third area of contention is whether substantial evidence supports the ALJ's step five finding. At step five of the disability analysis the burden shifts to the ALJ to demonstrate that there is other work in the national economy that plaintiff can perform. See Poupore

versus Astrue, 566 F.3d 303 at 306, Second Circuit 2009 case. If the ALJ utilizes a Vocational Expert at the hearing, the VE is generally questioned using a hypothetical question that incorporates plaintiff's limitations. See Aubeuf versus Schweiker, 649 F.2d 107 at 114, Second Circuit 1981. The ALJ may rely on the VE's testimony regarding the availability of work as long as the hypothetical facts the expert is asked to consider are based on substantial evidence and accurately reflect the plaintiff's limitations. See Calabrese versus Astrue, 385 F. Appendix 274 at 276, Second Circuit 2009. Where the hypothetical is based on an RFC analysis supported by substantial facts, the hypothetical is proper. See Calabrese at 276 to 277. At step five, the ALJ had to demonstrate that plaintiff was capable of performing jobs that existed in significant numbers in the national economy. See 20 CFR Section 404.1520(a)(4)(v).

In his hypothetical question to the VE, the ALJ described an individual who, among other things, was restricted to using her right arm for overhead reaching on an occasional basis. See T. 47 through 48. In response, the expert identified three jobs that such an individual could perform. First job, sorter. Second job, agricultural products and third job, sandwich-board carrier -- excuse me. Let me do that again. The first job is sorter in

agricultural products. The second job is sandwich-board carrier and the third job is housekeeper. See T. at 48. Although the DOT does not specifically address overhead reaching, it does address reaching which is broadly defined as extending hands and arms in any direction. The ALJ failed to resolve a conflict with respect to one of the jobs identified by the expert. The remaining two jobs were conflict free. Consistent with the ALJ's hypothetical question, the sorter and sandwich-board carrier both require occasional reaching. However, the housekeeper job requires frequent reaching. The two jobs, that being the sorter and sandwich-board carrier, were enough to satisfy the Commissioner's burden of demonstrating that a significant number of jobs exist in the national economy that plaintiff can still perform. The Vocational Expert testified that there are a total of 81,000 jobs nationally, that being 38,000 sorter jobs and 43,000 sandwich-board carrier jobs.

Although the ALJ erred in failing to seek an explanation for the discrepancy between the VE testimony and the DOT, I find that error is harmless in this case for the reasons that I just stated. Wherefore, based on the findings as set forth herein on the record, the ALJ's decision was supported by substantial evidence and, therefore, it is ordered that the Commissioner's decision is affirmed and plaintiff's complaint

is hereby dismissed. And it is ordered that judgment be entered for the defendant. All right. That constitutes the Court's decision. As I indicated I will issue a short order and I will attach in the docket the transcript of my Decision and Order that I just delivered on the record. Miss Krupar, is there anything else today? MS. KRUPAR: No, your Honor. Thank you for your time. THE COURT: Okay. Ms. Lawrence? MS. LAWRENCE: No. Thank you very much, your Honor. THE COURT: All right. Thank you both. And have a great rest of the week and thank you very much again for good arguments and good briefs. Court stands adjourned. Thank you. (Court stands adjourned)

CERTIFICATE OF OFFICIAL REPORTER

I, VICKY A. THELEMAN, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of

New York, do hereby certify that pursuant to Section 753, Title 28 United States Code that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

/s/ Vicky A. Theleman VICKY A. THELEMAN, RPR, CRR US District Court - NDNY

Dated: August 6, 2020.