UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DAVID W. Plaintiff, v. 8:20-CV-0201 (NAM) 4| ANDREW M. SAUL, Commissioner of Social Security,! Defendant.

Appearances: David W. Plaintiff Pro Se Paul Nitze | Social Security Administration Office of the General Counsel J.F.K. Federal Building, Room 625 Boston, MA 02203 Attorney for Defendant Hon. Norman A. Mordue, Senior United States District Court Judge MEMORANDUM-DECISION AND ORDER I INTRODUCTION 2 Plaintiff David W. filed this action on February 24, 2020 under 42 U.S.C. § 405(g), challenging the denial of his application for social security disability (“SSD”) benefits under the Social Security Act. (Dkt. No. 1). After carefully reviewing the administrative record, (“R,” Dkt. No. 10), the Court affirms the decision of the Commissioner.

' Plaintiff commenced this action against the “Commissioner of Social Security.” (Dkt. No. 1). Andrew M. Saul became the Commissioner on June 17, 2019 and will be substituted as the named defendant in this action. Fed. R. Civ. P. 25(d). The Clerk of Court is respectfully directed to amend the caption.

Il. BACKGROUND Plaintiff applied for disability insurance benefits in February 2016, alleging that he has been disabled since September 1, 2011. (R. 10). Plaintiff claims he is disabled due to Tourette’s syndrome, generalized anxiety disorder, secondary dystonia, depression, chronic pain in the neck and back, spells and seizures, neuropathy in the left hand and foot, numbness in the left 4! hand and foot, movement disorder, nausea, occasional vomiting, shooting pain down the left arm, and panic attacks. (R. 203). The Social Security Administration (“SSA”) denied Plaintiffs claim on June 8, 2016. (R. 10). Plaintiff appealed the decision and requested a hearing before an Administrative Law Judge (“ALJ”) on July 28, 2016. (/d.). A hearing was held on February 16, 2018 before ALJ Andrew J. Stoles, Jr. (R. 29-48). The hearing was postponed to allow Plaintiff to obtain counsel. (R. 39). On October 25, 2018, Plaintiff appeared with counsel at a second hearing. (R. 49-84). On November 7, 2018, the ALJ issued a decision finding that Plaintiff was not disabled. (R. 10-21). Plaintiffs subsequent request for review by the Appeals Council was denied on December 20, 2019. (R. 1-3). Plaintiff then commenced this action. (Dkt. No. 1). A. Plaintiff?’s Background and Testimony Plaintiff was born in 1966. (R. 173). He completed two years of college and worked as a production manager for a cable company from 1994 to 2000. (R. 203). Plaintiff continued working in video production from 2000 to 2011. Ud.). Plaintiff claims that he stopped working because of his medical conditions. (R. 62). He testified that he has not worked since 2011, except for several brief attempts to do small videography projects in 2014. (R. 56). Plaintiff testified that he probably has had Tourette’s syndrome since he was a teenager, and that his symptoms can take various forms, including “tics” like rapid jerking and twisting

movements of the head and neck which cause pain. (R. 63, 211). He testified that his condition has worsened over the years with more pain, and that it “has a lot of comorbid conditions,” including anxiety, depression, and obsessive-compulsive disorder, which all “feed on each other in [his] case.” (R. 63). Plaintiff lives with his wife and two children. (R. 215). He testified that he helps with some chores and goes to the grocery store. (R. 68). Plaintiff has a driver’s license and drives “almost daily,” including dropping his children off at school and picking them up, a trip which usually takes ten minutes. (R. 57). He sometimes has difficulty driving for longer periods of time, depending on his condition. (R. 58). He can care for his personal hygiene, does several exercise routines, and attends his daughter’s soccer games. (R. 69-70). Plaintiff testified that on a daily basis his anxiety and Tourette’s syndrome are “very »| draining” and affect his socialization. (R. 71). He said that his conditions also affect his concentration and focus because he is easily distracted and “keeping on task with anything is very difficult.” (R. 72). Plaintiff testified that he could sit for a few hours at most, but then pain would radiate throughout his back and neck. (R. 66). He also said that he could stand and walk carefully. (/d.). Plaintiff stated that he has difficulty lifting, and that when he is just moving, it feels like “two bones [are] rubbing together in [his] neck.” (R. 65). Plaintiff has used various z| medications to treat his conditions, including Zoloft to treat anxiety, Ativan to improve his sleep, and Motrin to help relieve neck pain. (R. 64-65). B. Medical Evidence Plaintiff was first diagnosed with Tourette’s syndrome in 1998 by Dr. Eric Molho at the Albany Medical Center Parkinson’s Disease and Movement Disorder Clinic. (See R. 167, 221).

Over the years, Plaintiff has received treatment for Tourette’s syndrome and other conditions from several providers.

significant numbers in the national economy. (R. 20). Specifically, based on Plaintiffs age, education, job skills, work experience, and RFC, plus testimony from the vocational expert, the ALJ found that Plaintiff would have been able to work as an “order caller” or a “photo machine operator.” (R. 20). Therefore, the ALJ concluded that Plaintiff was “not disabled” under Sections 216(1) and 223(d) of the Social Security Act. (R. 21). 4 Hl. LEGAL STANDARDS A. Disability Standard To be considered disabled, a claimant must establish that he 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 twelve months.” 42 U.S.C. § 1382c(a)(3)(A). In | addition, the claimant’s impairment(s) 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... .” 42 U.S.C. § 1382c(a)(3)(B). The SSA uses a five-step process to evaluate 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 such 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 [per se] disabled .... 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 is other work which the claimant can perform.

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Selian v. Astrue, 708 F.3d 409, 417-18 (2d Cir. 2013) (quoting Talavera v. Astrue, 697 F.3d 145, 151 (2d Cir. 2012)); see also 20 C.F.R. §§ 404.1520, 416.920. The Regulations define residual functional capacity (“RFC”) as “the most you can still do despite your limitations,” including limitations on physical and mental abilities. 20 C.F.R. §§ 404.1545, 416.945.

In assessing the RFC of a claimant with multiple impairments, the Commissioner considers all “medically determinable impairments, including . . . medically determinable impairments that are not ‘severe.’” Id. §§ 404.1545(a)(2), 416.945(a)(2). The claimant bears the initial burden of establishing disability at the first four steps; the Commissioner bears the burden at the last. Selian, 708 F.3d at 418. B. Standard of Review In reviewing a final decision by the Commissioner under 42 U.S.C. § 405, the Court does not determine de novo whether Plaintiff is disabled. Rather, the Court must review the administrative record to determine whether “there is substantial evidence, considering the record as a whole, to support the Commissioner’s decision and if the correct legal standards have been applied.” Moran v. Astrue, 569 F.3d 108, 112 (2d Cir. 2009) (citation omitted). When evaluating the Commissioner’s decision, “the reviewing court is required to examine the entire record, including contradictory evidence and evidence from which conflicting inferences can be drawn.” Selian, 708 F.3d at 417 (quoting Mongeur v. Heckler, 722 F.2d 1033, 1038 (2d Cir. 1983)). The Court may set aside the final decision of the Commissioner only if it is not supported by substantial evidence or if it is affected by legal error. 42 U.S.C. § 405(g); Selian, 708 F.3d at 417; Talavera, 697 F.3d at 151; Burgess v. Astrue, 537 F.3d 117, 127 2d Cir. 2008). “Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Brault v. Soc. Sec. Admin., Comm’r, 683 F.3d 443, 447-48 (2d Cir. 2012) (quoting Moran, 569 F.3d at 112). In deciding a disability claim, an ALJ is tasked with “weigh[ing] all of the evidence available to make an RFC finding that [is] consistent with the record as a whole,” even if that finding does not perfectly correspond with any of the opinions of cited medical sources. Matta Aly, Astrue, 508 F. App’x 53, 56 (2d Cir. 2013). However, an ALJ is not a medical professional, and “is not qualified to assess a claimant’s RFC on the basis of bare medical findings.” Ortiz v. Colvin, 298 F. Supp. 3d 581, 586 (W.D.N.Y. 2018). In other words, there must be substantial evidence to support a finding of functional limitations or lack thereof. IV. DISCUSSION A. Failure to Prosecute Plaintiff brings this appeal pro se and has not filed a supporting brief, which was originally due on July 13, 2020. On September 11, 2020, the Court ordered Plaintiff to file his brief or advise as to the status of such filing by October 14, 2020. (Dkt. No. 12). Plaintiff failed to do so, and the Court entered another Order on October 23, 2020 directing: Defendant to file a brief on behalf of the Commissioner by December 7, 2020, to file a proof of service on Plaintiff, and for Plaintiff to file a brief on or before January 21, 2021. (Dkt. No. 14). Plaintiff was also provided a copy of General Order 18 and warned that failure to file a brief would “result in the consideration of this appeal without the benefit of Plaintiff's arguments and may result in a decision heavily influenced by the Commissioner's version of the facts or may result in dismissal of the action for failure to prosecute and failure to follow Court orders.” (/d.). Defendant then filed its brief and proof of service. (Dkt. Nos. 17-18). Finally, on January 21, 2021, Plaintiff filed a letter asking for a 90-day extension to submit his brief. (Dkt. No. 19). The Court granted Plaintiff an extension until March 5, 2021. (Dkt. No. 20). Still, Plaintiff has not filed a brief, despite the Court’s repeated reminders, extensions, and warning. Under these circumstances, the Court could dismiss Plaintiff’s case for failure to prosecute and failure to comply with Court orders. However, in deference to Plaintiff's pro se status and out of an abundance of caution, the Court has reviewed the entire administrative record to determine whether the ALJ’s decision is supported by substantial evidence. See Deinna G. v. Saul, No. 18-CV-1342, 2020 WL 613964, at *6, 2020 U.S. Dist. LEXIS 22320, at[*16] (N.D.N.Y. Feb. 10, 2020) (citing Hubbard v. Comm’r of Soc. Sec., No. 14-CV-1401, 2016 WL 551783, at *4, 2016 U.S. Dist. LEXIS 17300, at *9 (N.D.N.Y. Jan. 14, 2016) (“The Court will ‘consider’ the case notwithstanding a plaintiffs failure to file a brief, albeit in a way that might be ‘heavily influenced by the Commissioner’s version of the facts.””)). B. Analysis To begin, the Commissioner argues that Plaintiff's appeal must fail for several reasons: 1) substantial evidence supports the ALJ’s step-three determination; 2) substantial evidence supports the ALJ’s RFC determination; 3) the ALJ properly evaluated Plaintiff's symptoms; and 4) substantial evidence supports the ALJ’s step-five determination. (Dkt. No. 17). 1. Step Three Determination In general, the SSA has Listings for each major body system that describe “impairments that [the SSA] consider[s] to be severe enough to prevent an individual from doing any gainful activity, regardless of [a claimant’s] age, education, or work experience.” 20 C.F.R. §§ 404.1525(a), 416.925(a). To qualify for a Listing, a claimant must demonstrate that his impairment(s) “meet[s] all of the specified medical criteria.” Sullivan v. Zebley, 493 U.S. 521, 530 (1990). Therefore, “an impairment that manifests only some of those criteria, no matter how severely, does not qualify.” The ALJ found that Plaintiffs impairments did not meet the requirements set forth in Listing 1.00 (musculoskeletal impairments) or Listing 12.00 (mental disorders). (R. 13-14). Regarding mental impairments, the ALJ found that Plaintiff had “moderate difficulty 4! understanding, remembering, or applying information; moderate difficulty interacting with others; moderate difficulty concentrating, persisting, or maintaining pace; and moderate difficulty adapting or managing himself.” (R. 13). The ALJ found that Plaintiff's impairments “could reasonably be expected to cause the alleged symptoms; however, [his] reports concerning the intensity, persistence, and limiting effects of these symptoms . . . are not entirely consistent with the medical evidence and other evidence in the record.” (R. 15). These findings were | Supported by “the very minimal, conservative nature of the claimant’s mental health treatment history since the alleged disability onset date; his generally normal clinical findings on examinations; and the lack of any medical opinion evidence establishing a greater degree of limitation, through [Plaintiffs] date last insured.” (R. 13). The ALJ also noted that Plaintiffs records established a history of various prescribed medications for anxiety and that when Plaintiff ceased treatment, he described his anxiety as | “relatively stable, bothersome, but manageable.” (R. 15). The record also did not document any outpatient treatment for difficulties related to Plaintiff's mental impairments through the date last insured. In addition, the ALJ referred to Dr. Mount’s opinion that Plaintiff had no limitations for following and understanding simple directions and instructions, and performing simple tasks independently; mild limitations making appropriate decisions; mild to moderate limitations maintaining attention and concentration, learning new tasks, and performing complex tasks independently; and moderate limitations on maintaining a regular schedule, relating adequately with others, and appropriately dealing with stress. (/d.). And the ALJ cited Dr. Hoffman’s assessment that Plaintiff “retained the ability to understand and remember simple and detailed instructions and work procedures . . . and maintain adequate attention and concentration to complete work like procedures and sustain a routine without substantial limitation.” (R. 16). A Regarding Plaintiff's physical impairments, the ALJ noted that Plaintiff drove to the hearing, he drove short distances daily, and that he drove over three hours that summer to a family camp in New Hampshire. (R. 14). Plaintiff also helped with light chores at home, such as cooking, sweeping, and going to the grocery store. (/d.). The ALJ also noted that Plaintiff often ceased the treatments prescribed to him due to side effects, but his clinical findings remained stable. (R. 18). Further, the ALJ noted evidence from physical examinations that | “other than abnormal head and neck movement and neck tenderness with palpitation, objective findings were essentially normal, including musculoskeletal, neurological, and psychiatric findings,” and Plaintiff's primary care records “document[ed] generally normal findings.” (/d.). The ALJ also noted Dr. Wassef’s assessment that Plaintiff had only moderate limitations for lifting, pushing, pulling, and handling. (/d.). As to Plaintiff’s Tourette’s syndrome, the ALJ stated that Plaintiff “has lived with this condition for most of his life, including [during] periods of gainful employment.” (R. 19). Based on this evidence, the ALJ determined that Plaintiff did not have the “marked” or “extreme” limitation(s) required by paragraph B for Listings 1.00, 12.02, 12.04, or 12.06. (R. 13). The ALJ further stated that the evidence failed to establish the presence of paragraph C criteria. (/d.). After careful review of the record, the Court finds that the ALJ’s analysis is supported by substantial evidence, including statements by Plaintiffs treating physician, Dr.

Boyd, who stated that that his tics were “suppressible” and “responsive” to pain relief, and by Dr. Mount, who described his thought process as “coherent and goal directed,” and stated that his attention and concentration and memory skills were “intact,” and that his cognitive functioning was “average.” (R. 323). The record does not contain substantial evidence that Plaintiff's physical or mental impairments caused any “extreme” or “marked” limitations during 4! the relevant time period. Accordingly, the Court finds that there was substantial evidence to support the ALJ’s conclusion that Plaintiff did not meet or equal the impairment criteria for one of the Listings. ^[2]. Residual Functional Capacity Determination The ALJ determined that Plaintiff had the RFC to perform light work, except with the following limitations: he could occasionally climb ramps and stairs, never ladders, ropes, or | scaffolds; he could not work at unprotected heights or use a motor vehicle for work purposes and he needed to avoid the use of heavy machinery; he needed to avoid constant, repetitive twisting, turning, and nodding of the neck over the eight-hour workday; he was limited to a low stress work environment, with only simple, routine, repetitive tasks and occasional interaction with the public. (R. 14). In support of this determination, the ALJ conducted an extensive review and analysis of Plaintiff's medical record. (R. 14-19). As to Plaintiff's physical impairments, the ALJ accorded some weight to the opinion of Dr. Wassef, who found that Plaintiff “had full cervical and lumbar motion and full motion of the upper and lower extremities,” full strength in the upper and lower extremities, stable joints, and intact hand and finger dexterity. (R. 18). Dr. Wassef found that Plaintiff had moderate limitations for lifting, pushing, pulling, and handling. (/d.). The ALJ also cited Dr. Boyd’s notes, which indicated that Plaintiff's “objective findings were essentially normal,” except for abnormal head and neck movement and neck tenderness with palpitation. (/d.). And the ALJ noted that Plaintiff continued to perform some activities of daily living. (R. 19). As to Plaintiffs mental impairments, the ALJ gave great weight to Dr. Mount’s opinion because it was “formed by a personal examination and was... generally consistent with the totality of the evidence.” (R. 15). Dr. Mount found that Plaintiff's thought process was A! “coherent and goal directed,” his attention and concentration were “intact,” and his intellectual functioning was “average.” (R. 341). The ALJ noted that Plaintiff had “no significant history of specialized mental health treatment,” and that he only commenced outpatient mental health treatment in 2018, well after his date last insured. (R. 16, 19). The ALJ also relied on the opinion of Dr. Hoffman, who stated that “the claimant’s [mental] impairments did not result in greater than moderate limitations.” (R. 16). Dr. Hoffman’s opinion was accorded great weight, | as 1t was “supported by clinical findings and overall medical history” and “State agency .. . consultants are highly qualified physicians and psychologists who are experts in the evaluation of the medical issues in disability claims under the Act.” (/d.); see also Baszto v. Astrue, 700 F. Supp. 2d 242, 249 (N.D.N.Y. 2010) (“an ALJ is entitled to rely upon the opinions of both examining and nonexamining State agency medical consultants, since such consultants are deemed to be qualified experts in the field of social security disability”). In formulating the RFC, the ALJ took into account Plaintiff's physical and mental impairments—Tourette’s, cervical disorder, major depressive disorder, social anxiety, and panic disorder— by limiting him to light work where he could avoid: seizure-related risks of falling; constant, repetitive twisting, turning, and nodding of the neck; and stressful, complex work with the public. Accordingly, upon careful review of the record, the Court finds that the ALJ’s RFC determination is supported by substantial evidence, including the assessments of Plaintiff's doctors and the examining and non-examining consultants. Although Plaintiff reported more disabling limitations, the ALJ was permitted to discount his symptoms based on substantial evidence to the contrary.? See Miller v. Colvin, 85 F. Supp. 3d 742, 756-57 (W.D.N.Y. 2015) (affirming the ALJ’s decision to discount the plaintiffs subjective complaints based on substantial evidence to the contrary); Rockwood v. Astrue, 614 F. Supp. 2d 252, 270-72 4\(N.D.N.Y. 2009) (same). 3. Step Five Determination At the last step, the ALJ determined that “considering [Plaintiffs] age, education, work experience, and residual functional capacity, [he] was capable of making a successful adjustment to other work that existed in significant numbers in the national economy.” (R. 21). Therefore, the ALJ concluded that Plaintiff was not disabled. In making this determination, the ALJ relied | on the testimony of a vocational expert, who testified that there were occupations in the national economy that someone in Plaintiffs position could perform, including “order caller,” “office helper,” and “photocopying machine operator.” (R. 80). The expert also testified that someone in Plaintiffs position would be able to perform these jobs if he was limited to occasional interaction to the public, required a stand/sit option at will, and would be off task five percent of the eight hour workday. (R. 80-82). The ALJ’s use of the expert’s testimony was proper z| because there was substantial evidence supporting the RFC, as discussed above. Accordingly, the Court finds no error in the ALJ’s step five analysis and conclusion that Plaintiff was not disabled during the relevant time period.

* The Court also finds that the ALJ did not err in evaluating Plaintiffs symptoms, for the reasons explained in the Commissioner’s brief. (Dkt. No. 17, pp. 15—18).

4. Additional Evidence Before closing, the Court notes that Plaintiffs letter for an extension appears to reference new evidence from his treating physician Dr. Boyd that was not considered at his hearing “due to a technicality.” (Dkt. No. 19). Because Plaintiff has not filed a brief in this matter, it is not clear exactly what he is referring to. But the record shows that Plaintiff submitted to the ALJ 4| medical records related to treatment with Dr. Boyd in 2018. (R. 400-30). The ALJ stated that because this evidence was dated after the relevant time period (approximately 2011 to 2016), “evaluation of the evidence is unnecessary and the opinions are not entitled to weight through that period.” (R. 22). The ALJ further stated that although Dr. Boyd provided an opinion dated May 2018, that opinion was not indicative of Plaintiff's RFC during the relevant time period. (R. 22). After the ALJ’s decision, Plaintiff submitted to the Appeals Council another opinion »| from Dr. Boyd, this one dated February 18, 2019. (R. ^[2]). Dr. Boyd stated that “due to the medically refractory nature of [Plaintiffs] dystonic cervical tic and associated moderate to severe continuous pain, he has had marked impairment daily function and has been incompatible with gainful employment.” (R. 85). Dr. Boyd also stated that Plaintiffs “persistent anxiety with obsessive-compulsive disorder . . . exacerbated his tics but additionally produce their own level of disability.” (R. 85). The Appeals Council found that this evidence did “not show a z| reasonable probability that it would change the outcome of the decision.” (R. ^[2]). The Court has reviewed the above records and agrees with the analysis of the ALJ and Appeals Council. Notably, the ALJ discussed the contemporaneous assessments and findings of Dr. Boyd, whereas the 2018 and 2019 records came well after the relevant time period. Therefore, the Court finds that these records do not alter the conclusion that the ALJ’s decision is supported by substantial evidence. See also Behling v. Comm’r of Soc. Sec., 369 F. App’x 292, 294 (2d Cir. 2010) (Summary Order) (finding that the claimant’s current condition was not relevant because she “was required to demonstrate that she was disabled as of the date on which she was last insured” and “[a]ny new impairments are not relevant”) (citation omitted); Flanigan v. Colvin, 21 F. Supp. 3d 285, 302 (S.D.N.Y. 2014) (denying benefits where “at best the evidence show[ed] that [claimant] experienced progressively worsening symptoms that 4| eventually became disabling” after his date last insured). ! Finally, if Plaintiff's condition has worsened since the denial of his application for disability benefits, he may of course reapply with new medical evidence. Ryles v. Sec. of Health and Human Services, 526 F. Supp. 1141, 1143 (E.D.N.Y. 1981) (“if a claimant’s physical condition should deteriorate after a claim has been denied, the proper procedure is to reapply for disability benefits based upon the facts as they then exist”). Vv. CONCLUSION Although Plaintiff suffers from several serious ailments, it is not for the Court to overturn the ALJ’s decision if that decision is supported by substantial evidence. Indeed, even “Tw]here there is substantial evidence to support either position, the determination 1s one to be made by the factfinder.” Alston v. Sullivan, 904 F.2d 122, 126 (2d Cir. 1990). After careful review of the record, the Court concludes that the ALJ applied the correct legal standards and z| the decision is supported by substantial evidence. For the foregoing reasons it is ORDERED that the decision of the Commissioner is AFFIRMED; and it is further ORDERED that the Clerk of the Court provide a copy of this Memorandum-Decision and Order to the parties in accordance with the Local Rules of the Northern District of New York; and it is further ORDERED that the Clerk of the Court is directed to close this case. IT IS SO ORDERED. Date: March 18, 2021 Syracuse, New York

Hh orman A. Mordue Senior U.S. District Judge