UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ________________________________________

BRANDI M., Plaintiff, v. 5:21-CV-0435 (ML) COMMISSIONER OF SOCIAL SECURITY, Defendant. ________________________________________

APPEARANCES: OF COUNSEL:

OLINSKY LAW GROUP CHRISTOPHER MILLIMAN, ESQ. Counsel for the Plaintiff 250 South Clinton Street - Suite 210 Syracuse, New York 13202

SOCIAL SECURITY ADMINISTRATION NATASHA OELTJEN, ESQ. Counsel for the Defendant Special Assistant U.S. Attorney 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), are cross-motions for judgment on the pleadings.1 Oral argument was heard

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. in connection with those motions on September 26, 2022, 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 was supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by Plaintiff in this appeal. After due deliberation, and based upon the Court’s oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is ORDERED as follows: 1) Plaintiff's motion for judgment on the pleadings (Dkt. No. 12) is DENIED. 2) Defendant’s motion for judgment on the pleadings (Dkt. No. 15) is GRANTED. 3) The Commissioner’s decision denying Plaintiff Social Security benefits is AFFIRMED. 4) Plaintiff's Complaint (Dkt. No. 1) is DISMISSED. 5) The Clerk of Court is respectfully directed to enter judgment, based upon this determination, DISMISSING Plaintiffs Complaint in its entirety and closing this case. Dated: September 27, 2022 Binghamton, New York Nireabe Ew Miroslav Lovric United States Magistrate Judge Northern District of New York

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK _____________________________________ M vs. 5:21-CV-0435

COMMISSIONER OF SOCIAL SECURITY

_____________________________________

DECISION AND ORDER

September 26, 2022

The HONORABLE MIROSLAV LOVRIC, DISTRICT MAGISTRATE JUDGE

A P P E A R A N C E S

For Plaintiff: CHRISTOPHER MILLIMAN, ESQ.

For Defendant: NATASHA OELTJEN, ESQ.

Ruth I. Lynch, RPR, RMR, NYSRCR Official United States Court Reporter Binghamton, New York 13901 THE COURT: All right, the Court’s going to begin its analysis and decision as follows: Plaintiff has commenced this proceeding pursuant to Title 42 United States Code Section 405(g) to challenge the adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits that she sought. By way of background, the Court notes as follows: Plaintiff was born in 1981. She is currently approximately 41 years of age. She was approximately 36 years old on August 1, 2018, the alleged onset date. Plaintiff lives with her mother and minor child. Plaintiff is approximately 5 feet 3 inches in height and weighs approximately 160 pounds. Plaintiff has a GED and can communicate in English. By way of procedure, the Court notes the following history of this case: Plaintiff applied for Title II benefits on September 10, 2018, alleging disability beginning on August 1 of 2018. Administrative Law Judge Peter Jung conducted a hearing on March 11, 2020, to address plaintiff’s application for benefits. ALJ Jung issued an unfavorable decision on March 30th of 2020. That became a final determination of the agency on February 12th, 2021, when the Social Security Administration Appeals Council denied plaintiff’s application for review. This action was commenced on April 16, 2021, and it is timely. Now, in his decision, ALJ Jung applied the familiar five-step test for determining disability. At step one, the ALJ concluded that plaintiff had not engaged in substantial gainful activity since August 1 of 2018, the alleged onset date. At step two, the ALJ concluded that plaintiff suffers from the following severe impairments: Major depressive disorder, generalized anxiety disorder, and alcohol use disorder. The ALJ also considered plaintiff’s nonsevere impairments including gastroesophageal reflux disorder, hepatomegaly, hyperlipidemia, hyperglycemia, and obesity. At step three, ALJ Jung concluded that plaintiff’s conditions do not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner’s regulations, and the ALJ focused on the following listings: Listing 12.04, which deals with depressive, bipolar, and related disorders; listing 12.06, dealing with anxiety and obsessive compulsive disorders. When considering the paragraph B criteria, the ALJ concluded that plaintiff had moderate limitations in each of the four functional areas. In addition, the ALJ concluded that the evidence failed to establish paragraph C criteria. Next, the ALJ next determined that plaintiff retains the residual functional capacity to perform a full range of work at all exertional levels but with the nonexertional limitations of performance of simple, repetitive, routine tasks with no -- no supervisory duties. The ALJ also concluded plaintiff is limited to making simple work-related decision and is limited to tolerating few, infrequent changes in a routine work setting. The ALJ also concluded that plaintiff can occasionally interact with supervisors and coworkers but can never interact with the public. At step four, the ALJ concluded that plaintiff is unable to perform any past relevant work as an administrative/general office clerk. At step five, the ALJ concluded that based on the testimony of the vocational expert and considering plaintiff’s age, education, work experience, and RFC that there are jobs that exist in significant numbers in the national economy that plaintiff can perform. More specifically, and the vocational expert testified that plaintiff could perform the requirements of representative occupations including folder, marker, and garment sorter. As a result, the ALJ concluded that plaintiff had not been under a disability as defined in the Social Security Act from August 1, 2018 through the date of the ALJ’s decision. Now, as the parties know, this Court’s functional role in this case is limited and extremely deferential. I must determine whether correct legal principles were applied and whether the determination is supported by substantial evidence, defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. As the Second Circuit noted in Brault V. Social Security Administration Commissioner, found at 683 F.3d 443, a 2012 case, the Circuit therein stated this standard is demanding, more so than the clearly erroneous standard. The Second Circuit noted in Brault that once there is a finding of fact, that fact can be rejected only if a reasonable fact-finder would have to conclude otherwise. Now, on appeal before this Court, the plaintiff raises one contention. The plaintiff argues that the ALJ’s RFC determination is unsupported by substantial evidence because the ALJ failed to properly evaluate the opinions of Dr. Grassl and NPP Blum. The Court begins its analysis as follows: For the reasons set forth in defendant’s brief, I find that substantial evidence supports the ALJ’s evaluation of the medical opinions. With respect to the opinion of Dr. Grassl, the Court notes as follows: And as defendant highlighted, Dr. Gassl submitted two separate questionnaires regarding plaintiff’s functioning on the same date; on May 20th of 2019. Compare docket number 11 at 243 to 246, transcript page 240 to 243, compare -- compare that questionnaire with docket number 11 at 247 to 249, transcript pages 244 to 246. These opinions conflicted with one another. In one opinion Dr. Grassl opined that plaintiff had a marked limitation in her ability to sustain concentration and perform a task at a consistent pace; to sustain an ordinary routine and regular attendance at work; and regulate emotions, control behavior, and maintain well-being. This opinion of Dr. Grassl can be found at docket 11 at 245, transcript page 242. In the other opinion Dr. Grassl opined that plaintiff had no impairment affecting the ability to concentrate, persist, or maintain pace, and the ability to adapt or manage herself. See docket number 11 at 248, transcript page 245. In addition, Dr. Grassl’s examination of plaintiff showed plaintiff’s attention and concentration intact. See docket number 11 at 244, transcript pages -- page 241. Moreover, Dr. Grassl’s examination showed a cooperative demeanor, appropriate dress, well-groomed personal hygiene, and a coherent and goal-directed thought process, and which diverge from a marked limitation in plaintiff’s ability to regulate emotions, control behavior, or maintain her well-being. The Court also notes further, as defendant discussed in her brief, although plaintiff’s mood fluctuated, she consistently exhibited calm or normal behavior, normal speech, and good judgment. The ALJ did not err in considering Dr. Grassl’s examination findings when evaluating her opinion. As defendants set forth, the Second Circuit’s analysis in Stacey centered around the treating source rule, which is not applicable in this case. With respect to the opinion of Dr. Blum, as the ALJ noted, Mr. Blum identified a host of symptoms that plaintiff purportedly experienced such as suicidal thoughts, but the records indicate that plaintiff routinely denied suicidal thoughts. The ALJ also noted that plaintiff had only been seen nine times by any mental health treatment provider since her alleged disability onset date in August of 2018. This Court notes that although plaintiff was hospitalized for suicidal thoughts at some point, that occurred before the alleged onset date. Despite some evidence in the record which may support plaintiff’s contentions, substantial evidence supports the ALJ’s conclusion that Mr. Blum’s opinion, which contained severe limitations, was unsupported and inconsistent with the record as a whole. With respect to the opinion of Dr. Hennessey, the Court notes, and as defendants set forth, quote, the critical question is whether the Social Security Administration would still find the claimant disabled if she stopped using drugs or alcohol, end quote. See Cage versus Commissioner of Social Security, that’s found at 692 F.3d 118, page 123, and that’s a Second Circuit 2012 case, and therein the Second Circuit quoting 20 CFR Section 416.935(b)(1). In making a determination, the ALJ first determines whether physical and mental limitations would remain if the plaintiff stopped using drugs or alcohol, and if so, whether those remaining limitations are disabling on their own. See case Tyler M. V. Saul, 19-CV-0426, that can be found at 2020 West Law 5258344 at page 4. And that’s a Northern District New York September 3rd, 2020 case issued by Magistrate Judge Hummel, and therein Judge Hummel citing 20 CFR sections 404.153(b)(2), also citing 416.935(b)(2). And, quote, if not, the substance abuse is considered material and the plaintiff is not eligible for benefits under the Social Security Act, end quote. See again Tyler M., 2020 West Law 5258344 at page 4, and again citing 20 CFR Sections 404.1535(b)(2)(i), and also Section 416.935(b)(2)(i). Dr. Hennessey’s opined limitations were within one year of plaintiff’s alleged onset date based on the assumptions that plaintiff continue with the outpatient treatment and maintain sobriety. Contrary to plaintiff’s contention that Dr. Hennessey’s opinion was speculative, the ALJ was required to consider what plaintiff’s limitations would be if she abstained from alcohol. Moreover, only impairments that last or are expected to last for a continuous period of at least 12 months can be found disabling, whereas Dr. Hennessey opined that plaintiff could have no more than moderate limitations within one year of her alleged onset date. Finally, I find that for the reasons set forth in defendant’s brief, the ALJ did not err in assessing an RFC that contained more limitations than those opined by Dr. Hennessey, despite the fact that the RFC did not match any single medical opinion. Based upon this analysis, I therefore conclude plaintiff’s motion for judgment on the pleadings is denied. Defendant’s motion for judgment on the pleadings is granted. Plaintiff’s complaint is hereby dismissed. And the Commissioner’s decision denying plaintiff benefits is hereby affirmed. This constitutes the analysis and decision of this Court. - - - - -