Fargnoli v. Saul

Filing 17

ORDER: 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 the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. Dismissing Plaintiff's Complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 1/8/2021. (khr)

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Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 1 of 22 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ JASON F., Plaintiff, v. Civil Action No. 3:19-CV-1355 (DEP) ANDREW SAUL, Commissioner of Social Security, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF LACHMAN & GORTON LAW FIRM 1500 East Main St. P.O. Box 89 Endicott, NY 13761-0089 PETER A. GORTON, ESQ. FOR DEFENDANT HON. ANTOINETTE L. BACON Acting United States Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198 JESSICA RICHARDS, ESQ. Special Assistant U.S. Attorney DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER Currently pending before the court in this action, in which plaintiff Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 2 of 22 seeks judicial review of an adverse administrative determination by the Commissioner of Social Security, pursuant to 42 U.S.C. ยง 405(g), are cross-motions for judgment on the pleadings. 1 Oral argument was heard in connection with those motions on December 23, 2020, 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 ORDERED, as follows: 1) Defendant=s motion for judgment on the pleadings is GRANTED. 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. 2 Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 3 of 22 2) The Commissioner=s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff=s complaint in its entirety. Dated: January 8, 2021 Syracuse, NY 3 Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 4 of 22 UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x JASON F., Plaintiff, vs. 3:19-CV-1355 ANDREW SAUL, Commissioner of Social Security, Defendant. -------------------------------------------------------x Transcript of DECISION - December 23, 2020 HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION 15 New Sudbury Street Boston, MA 02203 BY: JESSICA RICHARDS, ESQ. Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 5 of 22 2 Decision - 19-cv-1355 - 12/23/2020 1 THE COURT: Thank you, Counsel, for your excellent 2 presentations. 3 be an interesting case. 4 I enjoyed working with you. I found this to The plaintiff commenced this action pursuant to 42, 5 United States Code, 405(g) to challenge an adverse 6 determination of the Commissioner of Social Security finding 7 that plaintiff was not disabled at the relevant times and, 8 therefore, ineligible for the disability insurance benefits 9 for which he applied. 10 The background is as follows: Plaintiff was born 11 in April of 1981. 12 Plaintiff was 34 years old at the onset of his alleged 13 disability in January of 2016. 14 Vestal, New York, with his mother and two dogs, which he 15 cares for. 16 issues. 17 He is currently 39 years of age. Plaintiff lives in a house in Plaintiff's mother has significant medical Plaintiff stands approximately 6-foot 4-inches in 18 height, and at various times has weighed between 400 and 19 450 pounds; 450 pounds appearing at page 371 of the 20 Administrative Transcript. 21 Plaintiff has a high school education and one 22 semester of college education. He dropped out of college for 23 medical reasons. 24 As a senior in high school, plaintiff suffered a trauma when 25 his father died in his arms in his senior year in 2000. While in school he was in regular classes. He Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 6 of 22 3 Decision - 19-cv-1355 - 12/23/2020 1 required counseling after that event. 2 Plaintiff has a driver's license. Plaintiff 3 stopped working apparently in June of 2016, according to 4 page 45 of the Administrative Transcript, his hearing 5 testimony, and his statement to Dr. Moore. 6 has stated that he has looked for and applied for work since 7 that time; the reference is page 48 and 236 of the 8 Administrative Transcript. 9 positions in the past. He testified and Plaintiff has held several He was a health care driver from 10 April of 2001 to April of 2009. 11 a corrections officer. 12 auto detailer. 13 he was a supervisor in a fire and water restoration service 14 office. 15 as a paper delivery person driving in his car for up to two 16 hours delivering papers. 17 to Dr. Moore, that employment ended when his contract expired 18 and the newspaper downsized. 19 however, that he could no longer physically carry out the 20 responsibilities of that job. 21 In the summer of 2008 he was In the summer of 2009 he worked as an In the winter of 2009 to the spring of 2010 And from April of 2011 until June of 2016, he worked According to plaintiff's statement He also stated to Dr. Moore, Physically, plaintiff suffers from back pain that 22 radiates into his legs bilaterally and results in numbness 23 and tingling. 24 known as spondylolysis, which was surgically repaired on 25 March 31, 1999 through an open reduction and fixation with a He suffered from a pars defect, which is also Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 7 of 22 4 Decision - 19-cv-1355 - 12/23/2020 1 bone graft. He also suffers from an L5-S1 lumbar issue. 2 There was a magnetic resonance imaging testing of his lumbar 3 spine on June 30, 2016, that appears at page 257, which notes 4 that, "The MRI does show L2-L3 severe disc space collapse and 5 near auto-fusion anteriorly. 6 stenosis. 7 changes L5-S1 without herniation. 8 appear to be within normal limits." 9 on that page that plaintiff ambulates without difficulty and There is no significant There is also evidence of advanced discogenic The remaining disc spaces There is also notation 10 that the plaintiff was advised to lose weight and is not a 11 surgical candidate. 12 The plaintiff also underwent an X-ray of his lumbar 13 spine on April 24, 2018, that's at page 366 through 368, 14 which reflected mild L5-S1 disc space narrowing. 15 X-ray also taken on that date, at page 367, appears normal. 16 The plaintiff underwent nerve blocks on June 27, 2016 and 17 September 25, 2016. 18 A pelvic Physically, he also suffers from bilateral knee 19 issues, worse on the left side. Plaintiff underwent physical 20 therapy from January of 2017 to February of 2017, for his 21 knees primarily. The records of that physical therapy are 22 reflected in 7F. He also suffers from obesity, 23 hyperlipidemia, hypertension, he experienced a broken hand in 24 or about 2001, allergies, and neck pain. 25 require any assistive devices. Plaintiff does not Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 8 of 22 5 Decision - 19-cv-1355 - 12/23/2020 1 Mentally, plaintiff suffers from depressive 2 disorder, panic disorder, and anxiety. 3 consultative examiner, Dr. Mary Ann Moore, also diagnosed 4 plaintiff as suffering from post-traumatic stress disorder, 5 or PTSD, although I note that plaintiff's treating 6 psychologist, Dr. Lister, doesn't appear to have listed that 7 as a recognized diagnosis. 8 9 The Agency's Plaintiff does obtain primary medical care from UHS Primary Care, principally through Physicians Assistant Gina 10 Callahan and Nurse Practitioner Cori Pane. 11 treated with Orthopedic Associates, Dr. Eric Seybold, who saw 12 him in 1998 and 1999 concerning the pars defect, and again 13 four times between April 13, 2016 and September 15, 2016 for 14 plaintiff's back issues, lumbar back issues, lower lumbar 15 back issues, I should say. 16 Psychology Associates, primarily with Dr. Michael Lister, a 17 psychologist, since January 16, 2017, and he receives 18 cognitive behavioral therapy from Dr. Lister. 19 He has also He also has treated with Oakdale Plaintiff has been prescribed various medications 20 over time, including Gabapentin, Meloxicam, Zoloft, 21 Neurontin, Vistaril, and medical marijuana. 22 Plaintiff has a fairly robust range of activities 23 of daily living, reflected at pages 261 and 270 to 271 of the 24 Transcript, as well as in his hearing testimony. 25 plaintiff is capable of showering, he can dress, cook, clean, The Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 9 of 22 6 Decision - 19-cv-1355 - 12/23/2020 1 do laundry, care for and walk his dogs, read, socialize with 2 friends, visit family, use the internet. 3 games. 4 is a competitive pistol target shooter and a member of a 5 shooting club. 6 He plays video He races radio controlled cars with friends. And he Plaintiff never smoked. Procedurally, plaintiff applied for Title II 7 benefits under the Social Security Act on September 5, 2016, 8 alleging an onset date of January 20, 2016. 9 alleges disability based on a back injury, overweight, bad At page 170 he 10 knees, back pain, nerve damage to the back, and nerve damage 11 to the right leg. 12 by Administrative Law Judge David Romeo with a vocational 13 expert to address plaintiff's application for benefits. 14 A hearing was conducted on August 3, 2018, On November 8, 2018, ALJ Romeo issued an 15 unfavorable decision. 16 the Agency on October 9, 2019, when the Social Security 17 Administration Appeals Council denied plaintiff's request for 18 review. 19 timely. 20 That became a final determination of This action was commenced on November 4, 2019 and is In his decision, ALJ Romeo applied the familiar 21 five-step sequential test for determining disability. 22 first noted preliminarily that plaintiff was insured through 23 December 31, 2020. 24 25 He At step one, the Administrative Law Judge concluded that plaintiff has not engaged in substantial gainful Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 10 of 22 Decision - 19-cv-1355 - 12/23/2020 7 1 activity since January 20, 2016, but noted that whether 2 plaintiff's paper route was viewed as SGA would not affect 3 the outcome, and he further noted that he has considered the 4 ability to perform that work in crafting his residual 5 functional capacity, or RFC, determination. 6 At step two, ALJ Romeo concluded that plaintiff 7 does suffer from severe impairments that impose more than 8 minimal limitation on his ability to perform work functions, 9 including degenerative disc disease and degenerative joint 10 disease of the lumbar spine, status post pars defect surgery, 11 anxiety, panic disorder, depressive disorder, morbid obesity, 12 and cannabis use disorder. 13 At step three, ALJ Romeo concluded that plaintiff's 14 conditions do not meet or medically equal any of the listed 15 presumptively disabling conditions set forth in the 16 Commissioner's regulations, specifically considering listing 17 1.04 and the other 1.00 listings related to the spine, 11.00, 18 14.00, 12.04, 12.06, and 12.15. 19 plaintiff's obesity in accordance with Social Security Ruling 20 02-01p. 21 He also considered The Administrative Law Judge next determined that, 22 notwithstanding his conditions, plaintiff retains the ability 23 to perform sedentary work, with the exception that physically 24 he can occasionally balance, stoop, kneel, crouch, crawl, 25 climb ramps and climb stairs; cannot climb ropes, ladders or Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 11 of 22 Decision - 19-cv-1355 - 12/23/2020 8 1 scaffolds. 2 understand, remember and carry out simple instructions and 3 make simple work-related decisions, and can tolerate a low 4 level of work pressure defined as work not requiring 5 multitasking, detailed job tasks, significant independent 6 judgment, very short deadlines, teamwork in completing job 7 tasks, or more than occasional changes in the work setting. 8 9 In light of his mental conditions, plaintiff can Applying that RFC finding at step four, the Administrative Law Judge concluded plaintiff is incapable of 10 performing his past relevant work as a home restoration 11 service cleaner and as a driver. 12 At step five, the Administrative Law Judge 13 initially noted that if plaintiff could perform a full range 14 of sedentary work, the Medical-Vocational Guidelines, or the 15 so-called Grids, would direct a finding of no disability. 16 Because of additional limitations restricting the job base on 17 which the Grids are predicated, he resorted to the testimony 18 of a vocational expert and concluded based on that testimony 19 that, notwithstanding his limitations, plaintiff is capable 20 of performing available work in the national economy, and 21 cited representative occupations, including elections clerk, 22 credit card call out operator, surveillance monitor, and tube 23 operator. 24 disabled at the relevant times. 25 And, therefore, found that the plaintiff was not The Court's function in this case is to determine Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 12 of 22 9 Decision - 19-cv-1355 - 12/23/2020 1 whether correct legal principles were applied and the 2 resulting determinations are supported by substantial 3 evidence, which is defined as such relevant evidence as a 4 reasonable mind would find sufficient to support a 5 conclusion. 6 Social Security Administration Commissioner, 683 F.3d 443, 7 that this is an exacting and highly deferential standard. 8 And the Court went on to note in Brault that under this 9 substantial evidence standard, once an ALJ finds a fact, that The Second Circuit has noted in Brault versus 10 fact can be rejected only if a reasonable fact-finder would 11 have to conclude otherwise. 12 In this case, the plaintiff has raised four basic 13 contentions, some of which are interrelated. 14 that the residual functional capacity is not supported by 15 substantial evidence in that he cannot meet the sitting 16 requirements and the work pace and attendance demands of 17 work. 18 He contends Secondly, he challenges the rejection of the 19 treating source opinions of Dr. Seybold and Dr. Lister, and 20 challenges the mental components of the residual functional 21 capacity finding as well. 22 And lastly, plaintiff argues that the step five 23 determination is flawed due to the errors in the residual 24 functional capacity and the hypothetical that was posed to 25 the vocational expert. Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 13 of 22 Decision - 19-cv-1355 - 12/23/2020 1 10 The first task, as you know, in a case of this 2 nature is for the Administrative Law Judge to determine 3 plaintiff's residual functional capacity, something that is 4 pivotal to the remainder of the analysis. 5 represents a finding of the range of tasks he is capable of 6 performing notwithstanding his impairments, and is informed 7 by consideration of all of the relevant medical and other 8 evidence; 20 CFR Section 404.1545(a)(3). 9 The claimant's RFC Of course, as is true of any portion of the 10 disability finding, the residual functional capacity must be 11 supported by substantial evidence. 12 capable of performing a full range of sedentary work subject 13 to additional limitations. 14 20 CFR Section 404.1567 as involving "lifting no more than 15 10 pounds at a time and occasionally lifting or carrying 16 articles like docket files, ledgers, and small tools. 17 Although a sedentary job is defined as one which involves 18 sitting, a certain amount of walking and standing is often 19 necessary in carrying out job duties." 20 been clarified by a subsequent ruling such that sedentary 21 work involves periods of standing or walking for no more than 22 two hours of an eight-hour workday and sitting up to a total 23 of approximately six hours in a similar period; SSR 96-9p and 24 SSR 83-10. 25 The plaintiff was found Sedentary work is defined under The regulation has In this case, the residual functional capacity Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 14 of 22 11 Decision - 19-cv-1355 - 12/23/2020 1 finding was explained by the Administrative Law Judge at 2 pages 27 through 30 of the Administrative Transcript. 3 summary, which appears at 30 to 31, the Administrative Law 4 Judge contends and finds that the RFC is supported by the 5 opinions of Dr. Jenouri, Dr. Moore, Dr. Seybold, Dr. Lister, 6 Dr. Juriga, objective medical evidence, and activities of 7 daily living. 8 9 In his In arriving at his opinion, the Administrative Law Judge was required to evaluate opinions of two treating 10 sources, Dr. Seybold and Dr. Lister. 11 of a treating physician such as those two regarding the 12 nature and severity of an impairment is entitled to 13 considerable deference provided it is supported by medically 14 acceptable clinical and laboratory diagnostic techniques and 15 is not inconsistent with other substantial evidence. 16 opinions are not controlling, however, if they are contrary 17 to other substantial evidence in the record, including the 18 opinions of other medical experts, and conflicts that arise 19 in the form of contradictory medical evidence in a record are 20 resolved properly by the Commissioner under Veino versus 21 Barnhart, 312 F.3d 578. 22 Ordinarily the opinion Such In this case, there are two opinions from 23 Dr. Seybold. The first was issued on January 13, 2017, and 24 appears at pages 293 to 295 of the Administrative Transcript. 25 Significantly, there is no question that it is more limiting Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 15 of 22 12 Decision - 19-cv-1355 - 12/23/2020 1 than the residual functional capacity finding. 2 that plaintiff can sit for only two hours in an eight-hour 3 workday and stand and walk for one hour each. 4 that plaintiff would be absent more than -- well, it says 5 tree times a month, but I'm thinking three times a month is 6 what that should read, at page 295. 7 It opines It also opines There was a second opinion issued by Dr. Seybold on 8 June 9, 2017. 9 form that apparently came from an office in Broome County, 10 Office of Adult Career and Continuing Education Services, 11 Vocational Rehabilitation, and it does contain somewhat 12 arguably contradictory information, both internally and 13 certainly as opposed to the January 2017 opinion. 14 indicates that plaintiff is capable of working up to 25 to 40 15 hours per week but is temporarily unemployable for four to 16 six weeks. 17 summary, plaintiff has moderate spinal stenosis and he is 18 unable to stand, sit, walk or drive for extended periods of 19 time. 20 that plaintiff is limited to 50 percent walking, standing, 21 sitting, and other physical exertional actions. 22 It appears at page 317 and 318. It was on a It On the second page it indicates in the verbal That is quantified in a check-box grid to indicate The Administrative Law Judge discussed 23 Dr. Seybold's opinions at pages 29 to 30 and gave some weight 24 to the second believing that it shows improvement. 25 Administrative Law Judge properly resolved the conflict The Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 16 of 22 13 Decision - 19-cv-1355 - 12/23/2020 1 between the two, although, as I indicated, I'm not certain on 2 what Dr. Seybold based his finding, his apparent finding of 3 improvement, since he only saw the plaintiff four times and 4 all four of those were in 2016. 5 Administrative Law Judge also found he was persuaded by the 6 plaintiff's activities outside of work. 7 Dr. Seybold's opinions is somewhat lacking in that it does 8 not specifically lay out, as most Administrative Law Judge 9 decisions don't, the so-called Burgess factors that need to Nonetheless, the The discussion of 10 be evaluated, but the Second Circuit has noted that in 11 Estrella versus Berryhill, 925 F.3d 90, from the Second 12 Circuit 2019, that a slavish recitation of the Burgess 13 factors, if it is lacking, it is not necessarily fatal if 14 upon review of the entirety of the decision it is clear to 15 the Court that the treating source rule was not violated, and 16 I make that finding in this case. 17 Dr. Jenouri, Dr. Gilbert Jenouri, examined the 18 plaintiff and issued an opinion on October 14, 2016. That 19 appears at 261 to 266 of the Administrative Transcript. 20 found that plaintiff has moderate to marked restriction in 21 walking, standing, and sitting long periods, bending, stair 22 climbing, lifting, and carrying. 23 Judge gave great weight to Dr. Jenouri's opinions at page 28 24 to 29, except with regard to sitting, and he explained that 25 he rejected that limitation on sitting as inconsistent with He The Administrative Law Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 17 of 22 Decision - 19-cv-1355 - 12/23/2020 14 1 Dr. Seybold's description of plaintiff's improved condition 2 and with the claimant's narration of his pattern of work and 3 social activity. 4 considerations. 5 And these are, of course, proper I note that the determination with regard to the 6 physical RFC is supported by not only the medical source 7 statement of Dr. Seybold and Dr. Jenouri, but also treatment 8 notes. 9 his lumbar area; that's at 282. 10 reported no pain; that's at 277. 11 reported no pain; that's at 351, and stated that he had begun 12 going to the gym. 13 that's at page 348. 14 that's at 337 to 338. 15 had experienced some pain but it had improved; that's at 16 page 341. 17 that's at page 329. On December 7, 2016, plaintiff reported no pain in 18 On January 3, 2017, he also On February 7, 2017, he On March 27, 2017, he reported no pain; On June 27, 2017, reported no pain; On April 13, 2017, he noted that he He also reported receiving relief from injections; He stated to Dr. Jenouri at page 261 that pain was 19 caused by activities. It was noted that he drove to deliver 20 papers six months after his alleged onset date for two hours 21 or more. 22 living, more so than most plaintiffs that we see, quite 23 honestly, and most involve sitting. 24 conservative treatment and was found not to be a candidate 25 for surgery. He had a very robust set of activities of daily The plaintiff underwent I couldn't find any records of physical Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 18 of 22 15 Decision - 19-cv-1355 - 12/23/2020 1 therapy, although he was referred to physical therapy or aqua 2 therapy on October 9, 2017, by I believe PA Callahan, that's 3 at page 334. 4 physical therapy, which was helping; that's at page 324. 5 And on November 20, 2017, he reported going to When it comes to sitting, by the way, I do note 6 that the Second Circuit has cautioned that, quote, "The 7 regulations do not mandate the presumption that all sedentary 8 jobs in the United States require the worker to sit without 9 moving for six hours, trapped like a seat-belted passenger in 10 the center seat on a transcontinental flight." 11 versus Barnhart, 362 F.3d 28, 33 (Second Circuit 2004). 12 Halloran So, in sum, I find that the physical aspects of the 13 residual functional capacity finding is supported by 14 substantial evidence. 15 Turning to the mental, the treating psychologist, 16 Dr. Michael Lister, issued an opinion on June 6, 2017. It 17 appears at pages 319 to 321 of the Administrative Transcript. 18 He lists an Axis I diagnosis as panic disorder and 19 unspecified depressive disorder. 20 assessment of functioning, or GAF, score of 60, which under 21 the DSM-4, which of course has been superseded by the DSM-5 22 which no longer utilizes the GAF scale, nonetheless, it's at 23 the top of the 51 to 60 category which is defined as, 24 "moderate symptoms (e.g. flat affect and circumstantial 25 speech, occasional panic attacks) or moderate difficulty in He assigns a global Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 19 of 22 16 Decision - 19-cv-1355 - 12/23/2020 1 social, occupational, or school functioning (e.g. few 2 friends, conflicts with peers or co-workers)." 3 The opinion of Dr. Lister indicates only one rating 4 of poor in ability in the category of work and social 5 abilities, and that is to perform at a consistent pace 6 without an unreasonable number and length of rest periods. 7 It indicates at page 321 that plaintiff is ready to begin 8 employment and competitive employment, although it does check 9 the box for part time. 10 The Administrative Law Judge discussed Dr. Lister's 11 opinions at page 30. 12 treating source. 13 of Dr. Lister and the weight that it is given is adequately 14 explained on page 30 of the Administrative Law Judge's 15 decision and I don't find any violation of the treating 16 source rules. 17 have been met. 18 Dr. Lister clearly qualifies as a But once again, I believe that the opinion I believe that the requirements of Estrella The mental condition of the plaintiff is also 19 addressed by Dr. Mary Ann Moore, who examined the plaintiff 20 on October 19, 2016. 21 of the Administrative Transcript. 22 statement she finds some limitations, including significantly 23 moderate limitations in regard to appropriately dealing with 24 stress, relating adequately with others, making appropriate 25 work decisions, and maintaining a regular work schedule. Her opinions appear at page 368 to 373 In her medical source The Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 20 of 22 Decision - 19-cv-1355 - 12/23/2020 17 1 opinion is given great weight, but the limitation on schedule 2 is rejected and explained as follows, "The moderate 3 limitations Dr. Moore describes concerning maintaining a 4 regular work schedule are not well supported in light of the 5 claimant's hearing testimony about his varied daily 6 activities and continuing job search, and consequently are 7 not adopted." 8 9 The opinion of Dr. S. Juriga from November 1, 2016 was also considered and given some weight at page 30 of the 10 Administrative Transcript. 11 included in Exhibit 1A, which appears at 71 through 81 of the 12 Administrative Transcript. 13 that plaintiff does not have any limitations in the domains 14 of restriction of activities of daily living, difficulties in 15 maintaining social functioning, and repeated episodes of 16 decompensation, each of extended duration, and finds only 17 mild difficulties in maintaining concentration, persistence 18 or pace. 19 Dr. Juriga's opinions are In his opinion, Dr. Juriga finds Of course, plaintiff's RFC as found by the 20 Administrative Law Judge does not mirror exactly any one of 21 the varied medical opinions in the record, but of course 22 there is no requirement that it do so. 23 that the analysis of the Administrative Law Judge was proper 24 and the portions of the medical opinions that were not 25 adopted were adequately explained. In this case, I find I was persuaded that this Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 21 of 22 18 Decision - 19-cv-1355 - 12/23/2020 1 is a case very similar in that regard to Medina versus 2 Commissioner of Social Security, 2020 WL 7418981. 3 opinion, a summary order issued by the Second Circuit on 4 December 18, 2020. 5 It was an The step five argument, of course, that was made by 6 the plaintiff is dependent on a finding that the residual 7 functional capacity determination was not supported by 8 substantial evidence, and I found that it was supported by 9 substantial evidence. The hypothetical posed to the 10 vocational expert mirrored the RFC finding. 11 conclude that the Commissioner has carried his burden at step 12 five and that the resulting determination was proper and 13 supported by substantial evidence. 14 I, therefore, I will, therefore, grant judgment on the pleadings 15 to the defendant and order dismissal of plaintiff's 16 complaint. 17 And leave you with a wish that you have a happy, 18 healthy holiday season and New Year. 19 brings us back to normal. 20 21 22 23 24 25 * Let's pray that 2021 Thank you. * * Case 3:19-cv-01355-DEP Document 17 Filed 01/08/21 Page 22 of 22 C E R T I F I C A T I O N I, EILEEN MCDONOUGH, RPR, CRR, 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. ________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter

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