Dougherty v. Commissioner of Social Security

Filing 18

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. 3) The clerk is respectfully directed to enter judgment, based upon this determination, DISMISSING plaintiff's complaint in its entirety. Signed by Magistrate Judge David E. Peebles on 4/27/2021. (khr)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF NEW YORK
_________________________
MELISSA A. D.,
v.

Plaintiff,

Civil Action No.
3:20-CV-0115 (DEP)

COMMISSIONER OF SOCIAL
SECURITY,
Defendant.
__________________________
APPEARANCES:

OF COUNSEL:

FOR PLAINTIFF
BINDER, BINDER LAW FIRM
485 Madison Avenue, Suite 501
New York, NY 10022

CHARLES E. BINDER, ESQ.
JOHN J. MORAN, ESQ.

FOR DEFENDANT
SOCIAL SECURITY ADMIN.
625 JFK Building
15 New Sudbury St
Boston, MA 02203

MOLLY CARTER, ESQ.

DAVID E. PEEBLES
U.S. 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 (“Commissioner”), pursuant to 42 U.S.C.
§§ 405(g) and 1383(3)(c), are cross-motions for judgment on the
pleadings. 1 Oral argument was heard in connection with those motions on
April 21, 2021, 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.

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.
1

2

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:

April 27, 2021
Syracuse, NY

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1

UNITED STATES DISTRICT COURT

2

NORTHERN DISTRICT OF NEW YORK

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MELISSA A. D.,

)
)
)
Plaintiff,
) CASE NO. 20-CV-115
)
vs.
)
)
COMMISSIONER OF SOCIAL SECURITY,
)
)
Defendant.
)
______________________________________ )
TRANSCRIPT OF PROCEEDINGS
BEFORE THE HON. DAVID E. PEEBLES
WEDNESDAY, APRIL 21, 2021
SYRACUSE, NEW YORK

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FOR THE PLAINTIFF:
BINDER & BINDER
By: JOHN J. MORAN, ESQ.
485 Madison Avenue, Suite 501
New York, New York 10022
FOR THE DEFENDANT:
SOCIAL SECURITY ADMINISTRATION
By: MOLLY CARTER, ESQ.
625 JFK Building, 15 New Sudbury Street
Boston, Massachusetts 02203

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JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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20-CV-115
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(Teleconference.)

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THE COURT:

Plaintiff has commenced this proceeding

3

pursuant to 42 United States Code Sections 405(g) and 1383(c)(3)

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to challenge an adverse determination by the Commissioner of

5

Social Security finding that plaintiff was not disabled at the

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relevant times and therefore is ineligible for the benefits that

7

she sought.

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9

The background is as follows.
April of 1973.

Plaintiff was born in

She is currently 48 years old.

She was

10

approximately just about a couple weeks short of 33 years of age

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at the time of the alleged onset of her disability on March 15,

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2006.

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has weighed between 140 and 220 pounds.

14

experiencing a 100-pound weigh gain attributable to the

15

medications that she has been prescribed.

Plaintiff stands five foot, three inches in height and

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Plaintiff has four children.

She reported

In April 2014, that

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included a 22-year-old son, 16-year-old daughter, 7-year-old

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daughter, and 4-year-old son.

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hearing in this matter in Johnson City with a fiancé, three of

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her children, and another man who helps.

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She lived at the time of the

She has completed ninth grade in school and achieved a

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GED.

She was in regular classes at the time of attending

23

school.

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education.

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tried to.

She also has a little more than one year of college
She went online to take college courses in 2017 or
She is right-handed, and she drives.
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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Plaintiff stopped working in 2005 or 2006.

The

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evidence is equivocal as to why.

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testified that she was laid off due to attendance issues, but in

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her function report 273, she stated that she was laid off due to

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lack of work.

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cashier, and a waitress.

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position after getting into an argument with her manager.

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9

At page 52 at the hearing, she

When she worked, she was a certified solderer, a
She was fired from her waitress

Plaintiff suffers from various mental impairments.
They have been variously diagnosed as anxiety, anxiety disorder

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with agoraphobia, post traumatic stress disorder or PTSD,

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manic-depressive psychosis, bipolar disorder, panic disorder,

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personality disorder, and loss of interests.

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Plaintiff has a history of sexual and physical abuse,

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of being the victim of those.

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and polysubstance abuse requiring treatment.

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hospitalized in 2006 psychiatrically due to depression and

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suicidal ideation.

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transcript.

19

including crossing parking lots.

20

She also has a history of alcohol
Plaintiff was

That appears at 374 of the administrative

Plaintiff is particularly afraid of open spaces

Physically, plaintiff suffers from obesity, a back

21

issue, and she had a broken bone in her ankle or foot in 2013.

22

I do not understand, however, her claim to be related to

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limitations associated with her physical condition.

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25

Plaintiff has treated with Nurse Practitioner Ryan
Little of United Health Services since November of 2008.
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

In

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2010, it was reported at 501 she was seeing Nurse Practitioner

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Little monthly.

3

seeing Nurse Practitioner Little between four, every four and

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six months.

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transcript.

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In 2018, however, it appears that she was only

That appears at 835 and 842 of the administrative

Plaintiff also treated since March of 2013 with

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Dr. Arun, A-r-u-n, Shah, S-h-a-h, who she sees every three

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months.

9

Services Center on seven occasions.

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In 2006, she also saw professionals at Tricounty Human

In terms of medication, plaintiff over time has been

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prescribed Lexapro, Buspar, Zoloft, Seroquel, Geodon, Valium,

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Paxil, Lamictal, Trazodone, Vistaril, Celexa, omeprazole,

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diazepam, paroxetine, l-a-m-o-t-r-i-g-i-n-e.

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she experiences side effects from her medications including

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weight gain and fatigue.

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She testifies that

Plaintiff has a fairly wide range of activities of

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daily living including caring for her children.

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bathe, groom.

She does dishes.

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does laundry.

She paints rooms in the interior of her house.

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She shops approximately one time per month, often with help.

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She drives.

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television, and she reads.

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She cleans.

She can dress,

She cooks.

She can take public transportation.

She

She watches

This case has a fairly tortured and extensive

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procedural history dating back to June 11, 2010, when plaintiff

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applied for Title 2 and Title 16 benefits under the Social
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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20-CV-115
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Security Act alleging onset date of March 15, 2006.

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at page 273 was that she is disabled based upon her bipolar

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disorder and agoraphobia, also panic attacks and anxiety

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disorder.

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Her claim

A hearing was conducted on November 8, 2011, by

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Administrative Law Judge Marie Greener.

Judge Greener issued an

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adverse decision on December 15, 2011.

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Social Security Administration Appeals Council remanded the

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matter on the basis that there was an insufficient explanation

On July 5, 2013, the

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for rejecting the opinions of Nurse Practitioner Little and

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cosigned by Dr. Jimenez, and also there was a lack of testimony

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from a vocational exert with opinions as to job base erosion.

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A subsequent hearing was conducted by ALJ Greener on

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April 17, 2014.

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determination July 22, 2014.

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Council denied review of that decision.

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Judge Greener issued another adverse
On December 6, 2015, the Appeals

However, on September 29, 2017, United States District

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Court for the Middle District of Pennsylvania, Judge William J.

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Nealon, N-e-a-l-o-n, vacated the commissioner's determination

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and remanded the matter claiming there was insufficient

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discussion of why there was no limitation in the residual

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functional capacity finding involving attention, concentration,

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and attendance.

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Council issued a subsequent decision on April 27, 2018,

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remanding the matter and directing it be assigned to a new

So the Social Security Administration Appeals

JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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administrative law judge.

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The matter was subsequently assigned to Administrative

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Law Judge Elizabeth Koennecke, K-o-e-n-n-e-c-k-e.

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Koennecke on May 4, 2018, in response to the District Court's

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concern, requested updated information from plaintiff at 762 to

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763.

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however.

There was no further clarification or material submitted

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9

Judge

Judge Koennecke conducted a hearing on January 9,
2019, and subsequently issued an unfavorable decision on

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February 13, 2019.

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agency on December 2, 2019, when the Social Security

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Administration Appeals Council denied plaintiff's application

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for review.

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timely.

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That became a final determination of the

This actions was commenced February 3, 2020, and is

In her decision, Judge Koennecke applied the familiar

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five-step sequential test for determining disability.

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found that plaintiff was insured through December 31, 2010.

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She first

At step 1, she concluded plaintiff had not engaged in
substantial gainful activity since March 15, 2006.
At step 2, ALJ Koennecke concluded that plaintiff does

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suffer from severe impairments that impose more than minimal

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limitations on her ability to perform basic work functions,

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stating that they are, quote, "all mental impairments as

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variously characterized."

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At step 3, ALJ Koennecke concluded that plaintiff's
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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conditions do not meet or medically equal any of the listed

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presumptively disabling conditions set forth in the

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commissioner's regulations, specifically considering listings

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12.04, 12.06, 12.08, and 12.15.

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ALJ Koennecke next concluded that plaintiff maintains

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the residual functional capacity or RFC to perform a full range

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of work at all exertional levels with several nonexertional

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limitations addressing plaintiff's mental limitations.

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The administrative law judge at step 4 concluded that

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based on the residual functional capacity, the plaintiff was not

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capable of performing her past relevant work as a wire worker,

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both as generally and actually performed at the time.

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5, ALJ Koennecke concluded -- I'm sorry.

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administrative law judge concluded that plaintiff is capable of

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performing her past relevant work as a wire worker both as

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generally and actually performed.

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At step

At step 4, the

As an alternative basis for finding no disability, the

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ALJ proceeded to step 5 and concluded based on the testimony of

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a vocational expert that plaintiff could also perform other

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available work in the national economy, representative positions

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being warehouse worker, laundry laborer, and evening industrial

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cleaner, and that plaintiff is therefore not disabled at the

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relevant times.

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The Court's function in this case of course is limited
and extremely deferential.

The Court must determine whether the

JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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20-CV-115
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correct legal principles were applied and the resulting

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determination is supported by substantial evidence, which is

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defined as such relevant evidence as a reasonable factfinder

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would conclude sufficient to support a finding.

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The Second Circuit addressed the standard in Brault,

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B-r-a-u-l-t, versus Social Security Administration Commissioner,

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reported at 683 F.3d 443 from 2012, noting that the standard is

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highly deferential, more stringent than even the clearly

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erroneous standard that courts and lawyers are familiar with.

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Notably, the Court stated that the substantial evidence standard

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means that once an ALJ finds a fact, that fact can be rejected

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only if a reasonable factfinder would have to conclude

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otherwise.

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The plaintiff in this case has two basic contentions.

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In the first, she claims that the RFC finding is unsupported and

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resulted from improper weighing of medical opinion evidence.

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Subsumed within that argument is the claim that the treating

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source rule was violated when Dr. Shah's opinion was not

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accorded -- opinions, I should say, were not accorded

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controlling weight.

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The second argument raised by the plaintiff concerns

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the evaluation of plaintiff 's subjective complaints.

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argument is that her complaints were improperly weighed and

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rejected.

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The

Of course, the first order of business for an
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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administrative law judge such as ALJ Koennecke was to determine

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plaintiff's RFC.

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range of tasks she is capable of performing notwithstanding the

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impairments at issue.

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consideration of all of the relevant medical and other evidence.

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20 CFR Sections 404.1545(a)(3) and 416.945(a)(3).

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finding must include assessment of both a plaintiff's exertional

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capabilities as well as nonexertional limitations including

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those resulting from mental impairments.

A claimant's RFC represents a finding of the

An RFC determination is informed by

The RFC

And of course, an

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ALJ's RFC determination, like all of the parts of the decision,

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must be supported by substantial evidence.

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In this case, there is considerable opinion evidence

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in the record including two opinions reported at 12F and 22F of

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the administrative transcript from Dr. Arun Shah, a treating

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psychiatrist.

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Dr. Shah on March -- I'm sorry, May 13, 2013,

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evaluated the plaintiff and concluded that plaintiff is markedly

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limited in many areas including the ability to maintain

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attention and concentration for extended periods, the ability to

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perform activities within a schedule and so forth, the ability

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to work in coordination or proximity to others without being

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unduly distracted, the ability to complete a normal workweek

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without interruptions, the ability to interact appropriately

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with the general public, the ability to get along with

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coworkers, and the ability to travel to unfamiliar places or use
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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public transportation.

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the administrative transcript.

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That opinion is at 514 through 521 of

A second opinion from Dr. Shah was given on March 28,

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2014, and contains similar limitations in a checkbox format with

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many marked limitations.

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Dr. Shah also issued a letter on June 11, 2013, that

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appears at 535 of the administrative transcript, stating that

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the plaintiff remains disabled.

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a function by function analysis and speaks to a matter that is

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Of course, that doesn't include

reserved to the commissioner.
Dr. Shah is clearly a treating source as recognized by

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the administrative law judge.

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opinions ordinarily would be entitled to considerable deference

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provided that his opinions are supported by medically acceptable

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clinical and laboratory diagnostic techniques and are not

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inconsistent with other substantial evidence.

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versus Barnhart, 312 F.3d 578, 588, Second Circuit 2002.

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As a treating source, his

Veino, V-e-i-n-o,

Such opinions are not controlling, however, if they

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are contrary to other substantial evidence in the record,

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including the opinions of other medical experts.

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F.3d at 588.

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contradictory medical evidence, their resolution of course is

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properly entrusted to the commissioner.

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25

Veino at 312

Where there are conflicts in the form of

If controlling weight is not given to a treating
source's opinion, the ALJ must apply several factors that are
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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specified in the regulations, 20 CFR Sections 404.1527 and

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416.927, the so-called Burgess factors, and the ALJ must provide

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reasons for the rejection.

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Of course, under Estrella versus Berryhill, 925 F.3d

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90 from Second Circuit 2019, in recognition of the fact that in

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most instances, the ALJ does not specifically list the Burgess

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factors, the Second Circuit has noted that the treating source

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rule is not violated if a searching review of the record reveals

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that the factors have been properly considered.

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In this case, the administrative law judge discussed

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Dr. Shah's opinions at pages 595 to 596 and again at 599 of the

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administrative transcript.

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not supported by treatment records.

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were not supported by the cited global assessment on function or

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GAF scores recorded.

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GAF at 60 to 65, and although it may be an error, an obvious

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error, stated that the lowest GAF for the past year for the

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plaintiff was 75.

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65, and the lowest GAF in the past year was listed as 60.

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She concluded that the opinions were
She also noted that they

Dr. Shah at page 514 listed the current

At 555, the current GAF was listed at 60 to

Under the standard set out in DSM-4 -- and I

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understand that that standard no longer applies, but it did at

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the time of Dr. Shah's opinions -- a GAF of 61 to 70 represents

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some mild symptoms or some difficulty in social, occupational,

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or school functioning, but generally functioning pretty well,

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has some meaningful interpersonal relationships.
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

60, which is

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at the high end of the 51 to 60 category, reflects moderate

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symptoms, more moderate difficulty in social, occupation, or

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school functioning.

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The consideration of GAF scores is proper as one

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factor.

It is certainly not the be all and end all, and in many

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respects, represents only a snapshot of plaintiff's functioning

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at any given time.

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of Social Security, 2016 Westlaw 3511780 from the Northern

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District of New York, May 19, 2016, approved of consideration of

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GAF score -- in that case, a score of 60 -- as inconsistent with

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the conclusion of serious limitations in maintaining attention,

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working without distraction, and adhering to standards of

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neatness and cleanliness.

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at 2016 Westlaw 3512219 and noted in note 2 the relevance on a

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limited basis of GAF score.

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But the Court in Leonard versus Commissioner

The Second Circuit affirmed that case

In this case, this is not a situation where a

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treatment note is cherry-picked and it has a GAF score of a

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certain figure.

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that is issuing the opinions with the significant limitations.

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And moreover, it doesn't represent just a single snapshot

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because it reports the lowest GAF score in the past year in both

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instances.

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factor in weighing Dr. Shah's opinions.

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25

This is a GAF score recorded by the very person

I think the ALJ properly considered those as a

The ALJ also noted the lack of deficits in attention
and concentration reflected in treatment notes, the fact that it
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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was speculative when it comes to absences, and the significant

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gaps in treatment.

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treatment:

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2015, November 2015 to July 2016, and July 2016 to March of

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2017, a proper consideration.

6

There are essentially four gaps in

October 2011 to March 2013, July 2014 to November

The ALJ also noted that Dr. Shah found a marked

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limitation in the plaintiff's ability to perform -- to take

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public transportation, and yet she reported to one of the

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consultative examiners that she is -- and she testified she can

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take public transportation.

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were properly considered.

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review of the record reflects a violation of the treating source

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rule in consideration of Dr. Shah's opinions.

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In my view, the Burgess factors

I am not able to say that a searching

The record also contains opinions from Nurse

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Practitioner Ryan Little.

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to page 508, a checkbox form reflects that there are marked

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limitation in several areas including the ability to maintain

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attention and concentration for extended periods, the ability to

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perform activities within a schedule and maintain regular

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attendance, the ability to make simple work-related decisions,

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the ability to accept instructions and respond appropriately to

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criticism, the ability to get along with coworkers or peers, the

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ability to respond appropriately to changes in work setting, and

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the ability to be aware of normal hazards.

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In 2011, November 2011, at page 501

Nurse Practitioner Little also indicated that the
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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plaintiff is incapable of even a low stress position and would

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be likely absent more than three times a month.

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through 840, Nurse Practitioner Little provides an opinion from

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February 28, 2018, indicating similarly marked limitations in

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various areas and a likelihood that plaintiff would be absent

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two to three times per month.

7

At pages 835

On December 13, 2018, appearing at 842 to 847, Nurse

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Practitioner Little provided yet another assessment in a

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checkbox format, similarly finding marked limitations in many

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areas and a finding that plaintiff would be absent more than

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three times per month.

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Nurse Practitioner Little signed or authored a "to

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whom it may concern" letter on July 13, 2017, that is cosigned

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by Dr. Domingo Jimenez.

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that Dr. Jimenez ever treated the plaintiff.

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anxiety disorder with agoraphobia and social anxiety.

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marked limitations in several areas.

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There's no indication in the record
It references
It finds

The record further contains some conclusory opinions

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from Nurse Practitioner Little.

May 14, 2013, she is currently

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disabled from her mental health issues, a matter reserved to the

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commissioner.

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unable to work from 2009 until the present.

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by function limitations and on a matter reserved for the

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commissioner, and once again, inability to work doesn't -- is

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not supported by any functional limitations cited.

On May 26, 2011, at 531, plaintiff has been
Again, no function

JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

And

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March 10, 2014, 554, similarly plaintiff is unable to work.

2

The opinions of Nurse Practitioner Little are

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comprehensively discussed by Administrative Law Judge Koennecke

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as 596, 597 and again at 598 to 599, not given significant

5

weight.

6

the time, this action involving an application that was made

7

prior to March 2017, Little is not an acceptable medical source,

8

and once again, there's no evidence that Dr. Jimenez ever

9

treated the plaintiff.

10

Of course, under the regulations that were in effect at

The ALJ properly rejected the nurse practitioner's

11

opinions because the treatment notes do not support.

12

many visits without any findings.

13

deficits in plaintiff's ability to concentrate and attention.

14

The activities of daily living were properly considered when

15

rejecting those opinions.

16

relatively benign transcript notes with reference to any anxiety

17

and depression.

18

There are

There's lack of evidence of

Frankly, a modest number of

I do acknowledge, as plaintiff has argued, that there

19

are some treatment notes that reflect modest anxiety or

20

depression levels, but that doesn't undermine the administrative

21

law judge's decision.

22

evidence would support a finding of no disability or a finding

23

of disability.

24

supports the finding of no disability.

25

refusing to accord greater weight to the opinions of Nurse

The question is not whether substantial

The issue is whether substantial evidence
I find no error in

JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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Practitioner Little.

2

There are also some consultative examination results

3

from examining and nonexamining consultants in the record.

All

4

were considered by Administrative Law Judge Koennecke.

5

Dr. Sarah Long examined the plaintiff and issued an opinion on

6

July 23, 2010.

7

and understand simple directions and instructions and to perform

8

simple tasks independently.

9

and concentration and is able to maintain a regular schedule.

She opined that the plaintiff is able to follow

She is able to maintain attention

10

She appears able to learn new tasks, perform complex tasks

11

independently, make appropriate decisions, relate adequately to

12

others, and is capable of adequate stress management.

13

opinions are at 374 to 378 in the record.

14

594 and given some weight.

15

Her

They are discussed at

It is true that a consultative examiner's opinion can

16

provide substantial evidence to an RFC finding if it is

17

supported.

18

findings and are consistent with a residual functional capacity

19

finding.

20

Dr. Long's opinions are well supported by the exam

There is a statement that plaintiff focuses on in the

21

next paragraph on page 376.

Quote, "The results of the present

22

evaluation appear to be consistent with psychiatric problems,

23

comma, which may, comma, at times, comma, interfere with her

24

about to function on a regular basis," close quote.

25

that statement is vague, and the medical source statement that I
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

However,

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just summarized is more specific when it comes to maintaining a

2

schedule, for example, and concentration, and once again is

3

supportive of the residual functional capacity finding.

4

The record also contains the opinion of Dr. Cheryl

5

Loomis dated August 27, 2013, appearing at 523 to 527 of the

6

administrative transcript.

7

there are some moderate impairments of the plaintiff and a

8

marked impairment in her ability to maintain attention and

9

concentration, perform complex tasks independently or under

It is Dr. Loomis's opinion that

10

supervision, make appropriate decisions, relate adequately with

11

others, and appropriately deal with stress.

12

discussed at pages 594 to 595 and given some weight.

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The opinion was

As the administrative law judge noted, however, some

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of the conclusions including the marked impairment and the

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ability to maintain attention and concentration are inconsistent

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with the exam findings since at page 525, she assessed

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plaintiff's ability in the area of concentration and attendance

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as moderately impaired and spelled that out.

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It also indicates in Administrative Law Judge

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Koennecke's consideration of Dr. Loomis's opinion, which she

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gave some weight, that it's based quite a bit on plaintiff's

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subjective statements, and in any event, is generally consistent

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with some exceptions to -- with the RFC finding.

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There is also the opinion, two opinions of Dr. T.
Harding, a nonexamining state agency consultant from
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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September 10, 2010.

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applies the psychiatric review technique, finds the existence of

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some impairments, but finds that they do not meet the B or C

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criteria of the listings, finding a moderate limitation and

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restriction in activities of daily living, a moderate

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restriction in maintaining social functioning, and a moderate

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limitation to maintaining concentration, persistence, or pace at

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page 429.

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In the first Exhibit 3F, he considers.

He

Assessing plaintiff's residual functional capacity

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from a mental standpoint, Dr. Harding finds some moderate

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limitations at page 433 to 435, but summarizes as follows:

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examiner opines that claimant is able to perform simple tasks

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independently and maintain attention and concentration, is able

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to keep a regular schedule and learn new tasks and perform

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complex tasks independently and make appropriate decisions and

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relate adequately with others and is capable of dealing with

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stress.

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consistent with the MER, the medical evidence in the file, and

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is adopted.

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retains the capacity for simple and semiskilled work," close

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quote.

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CE

With respect to cognitive functioning, this opinion is

And based on the medical evidence, quote, "Claimant

That opinion of course is consistent with the residual

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functional capacity finding.

It was discussed at pages 597 to

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598 and given some weight.

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weighing of the various medical opinions.

I find no error in conclusion in the
Under Veino, it is

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UNITED STATES DISTRICT COURT - NDNY

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for the administrative law judge to weigh conflicting opinions,

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and it is plaintiff's burden to show greater limitations than

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set forth in the residual functional capacity, and I find that

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that burden is not carried.

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Turning to the second argument, what we used to refer

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to as credibility, the evaluation of plaintiff's subjective

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complaints.

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plaintiff's subjective complaints in rendering the five-step

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disability analysis.

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Naturally an ALJ must take into account a

20 CFR Sections 404.1529 and 416.929.

The ALJ is not, comma, however, required to blindly

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accept the subjective testimony of a claimant.

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ALJ instead in his or her discretion to weigh the credibility of

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the claimant's testimony in light of the other evidence in the

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record.

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Circuit 2010.

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It is up to the

Genier, G-e-n-i-e-r, versus Astrue, 606 F.3d 46, Second

In this case, the administrative law judge recounted

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plaintiff's claims at 591 and 592 and applied the required

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two-step analysis under Social Security Ruling or SSR 16-3P.

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The administrative law judge first concluded that plaintiff's

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medically determinable mental impairments could reasonably cause

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the symptoms reported, but found that plaintiff's testimony

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concerning those symptoms was not consistent with other medical

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evidence, explaining her ruling from 592 to 600, pointing out

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among other things that there was a lack of support from the

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clinical findings for the reported symptoms, the clinical
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UNITED STATES DISTRICT COURT - NDNY

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findings being relatively benign.
She also cited significant and multiple gaps in

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treatment, proper considerations under Landis P. versus

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Commissioner of Social Security, 2020 Westlaw 2770434 from the

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Northern District of New York 2020; as well as Camille versus

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Colvin, 652 Federal Appendix 25 from the Second Circuit 2016.

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It is true that in some instances, there may be

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evidence that gaps in treatment have been caused by a mental

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condition, but there is little support, if any, in the record

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that this plaintiff could not, for example, retain a

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psychiatrist when recommended by Nurse Practitioner Little and

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could not attend treatment during those gap periods.

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I note that plaintiff alleges an onset date of March

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of 2006, and yet her first significant treatment for her mental

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condition did not take place until November 2008 when she first

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consulted with Nurse Practitioner Little, and at that time or

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shortly thereafter, she declined Nurse Practitioner Little's

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recommendation to seek specialized care.

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The reported symptoms are also inconsistent with the

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opinions of the consultative examiners and plaintiff's

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activities of daily living.

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poor work history, and the plaintiff was apparently laid off in

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2005 due to lack of work rather than her mental condition.

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These are all permissible factors.

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It was noted that plaintiff has a

Administrative Law Judge Koennecke also based her
JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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decision in part on observations of the plaintiff during the

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hearing in this matter.

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failed to carry her burden of demonstrating that no reasonable

4

factfinder, or put another way, that a reasonable factfinder

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would have to find that plaintiff's complaints were credible.

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Simply put, I find that plaintiff has

So in conclusion, I reject plaintiff's arguments.

I

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find that the determination of the administrative law judge was

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supported by substantial evidence and resulted from the

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application of proper legal principles.

I will therefore grant

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judgment on the pleadings to the defendant and order dismissal

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of plaintiff's complaint.

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Thank you both for excellent presentations.
working with you.

I enjoyed

Please stay safe.
(The matter adjourned at 11:59 a.m.)

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JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY

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CERTIFICATION OF OFFICIAL REPORTER

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I, JACQUELINE STROFFOLINO, RPR, Official Court Reporter,

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in and for the United States District Court for the Northern

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District of New York, do hereby certify that pursuant to Section

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753, Title 28, United States Code, that the foregoing is a true

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and correct transcript of the stenographically reported

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proceedings held in the above-entitled matter and that the

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transcript page format is in conformance with the regulations of

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the Judicial Conference of the United States.

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Dated this 22nd day of April, 2021.

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/s/ JACQUELINE STROFFOLINO

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JACQUELINE STROFFOLINO, RPR

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FEDERAL OFFICIAL COURT REPORTER

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JACQUELINE STROFFOLINO, RPR
UNITED STATES DISTRICT COURT - NDNY