Dougherty v. Commissioner of Social Security

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________

MELISSA A. D.,

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

COMMISSIONER OF SOCIAL SECURITY,

Defendant.

__________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

BINDER, BINDER LAW FIRM CHARLES E. BINDER, ESQ. 485 Madison Avenue, Suite 501 JOHN J. MORAN, ESQ. New York, NY 10022

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MOLLY CARTER, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

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.

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) |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.

U.S. Magistrate Judge Dated: April 27, 2021 Syracuse, NY

1 UNITED STATES DISTRICT COURT 2 NORTHERN DISTRICT OF NEW YORK 3 4 MELISSA A. D., ) ) 5 ) Plaintiff, ) CASE NO. 20-CV-115 6 ) vs. ) 7 ) COMMISSIONER OF SOCIAL SECURITY, ) 8 ) Defendant. ) 9 ______________________________________) 10 TRANSCRIPT OF PROCEEDINGS BEFORE THE HON. DAVID E. PEEBLES 11 WEDNESDAY, APRIL 21, 2021 SYRACUSE, NEW YORK 12 13 FOR THE PLAINTIFF: BINDER & BINDER 14 By: JOHN J. MORAN, ESQ. 485 Madison Avenue, Suite 501 15 New York, New York 10022 16 FOR THE DEFENDANT: SOCIAL SECURITY ADMINISTRATION 17 By: MOLLY CARTER, ESQ. 625 JFK Building, 15 New Sudbury Street 18 Boston, Massachusetts 02203 19 20 21 22 23 24 25 1 (Teleconference.) 2 THE COURT: Plaintiff has commenced this proceeding 3 pursuant to 42 United States Code Sections 405(g) and 1383(c)(3) 4 to challenge an adverse determination by the Commissioner of 5 Social Security finding that plaintiff was not disabled at the 6 relevant times and therefore is ineligible for the benefits that 7 she sought. 8 The background is as follows. Plaintiff was born in

9 April of 1973. She is currently 48 years old. She was 10 approximately just about a couple weeks short of 33 years of age 11 at the time of the alleged onset of her disability on March 15, 12 2006. Plaintiff stands five foot, three inches in height and 13 has weighed between 140 and 220 pounds. She reported 14 experiencing a 100-pound weigh gain attributable to the 15 medications that she has been prescribed. 16 Plaintiff has four children. In April 2014, that 17 included a 22-year-old son, 16-year-old daughter, 7-year-old 18 daughter, and 4-year-old son. She lived at the time of the 19 hearing in this matter in Johnson City with a fiancé, three of 20 her children, and another man who helps. 21 She has completed ninth grade in school and achieved a 22 GED. She was in regular classes at the time of attending 23 school. She also has a little more than one year of college

24 education. She went online to take college courses in 2017 or 25 tried to. She is right-handed, and she drives. 1 Plaintiff stopped working in 2005 or 2006. The 2 evidence is equivocal as to why. At page 52 at the hearing, she 3 testified that she was laid off due to attendance issues, but in 4 her function report 273, she stated that she was laid off due to 5 lack of work. When she worked, she was a certified solderer, a 6 cashier, and a waitress. She was fired from her waitress 7 position after getting into an argument with her manager. 8 Plaintiff suffers from various mental impairments.

9 They have been variously diagnosed as anxiety, anxiety disorder 10 with agoraphobia, post traumatic stress disorder or PTSD, 11 manic-depressive psychosis, bipolar disorder, panic disorder, 12 personality disorder, and loss of interests. 13 Plaintiff has a history of sexual and physical abuse, 14 of being the victim of those. She also has a history of alcohol 15 and polysubstance abuse requiring treatment. Plaintiff was 16 hospitalized in 2006 psychiatrically due to depression and 17 suicidal ideation. That appears at 374 of the administrative 18 transcript. Plaintiff is particularly afraid of open spaces 19 including crossing parking lots. 20 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 23 limitations associated with her physical condition.

24 Plaintiff has treated with Nurse Practitioner Ryan 25 Little of United Health Services since November of 2008. In 1 2010, it was reported at 501 she was seeing Nurse Practitioner 2 Little monthly. In 2018, however, it appears that she was only 3 seeing Nurse Practitioner Little between four, every four and 4 six months. That appears at 835 and 842 of the administrative 5 transcript. 6 Plaintiff also treated since March of 2013 with 7 Dr. Arun, A-r-u-n, Shah, S-h-a-h, who she sees every three 8 months. In 2006, she also saw professionals at Tricounty Human

9 Services Center on seven occasions. 10 In terms of medication, plaintiff over time has been 11 prescribed Lexapro, Buspar, Zoloft, Seroquel, Geodon, Valium, 12 Paxil, Lamictal, Trazodone, Vistaril, Celexa, omeprazole, 13 diazepam, paroxetine, l-a-m-o-t-r-i-g-i-n-e. She testifies that 14 she experiences side effects from her medications including 15 weight gain and fatigue. 16 Plaintiff has a fairly wide range of activities of 17 daily living including caring for her children. She can dress, 18 bathe, groom. She does dishes. She cleans. She cooks. She 19 does laundry. She paints rooms in the interior of her house. 20 She shops approximately one time per month, often with help. 21 She drives. She can take public transportation. She watches 22 television, and she reads. 23 This case has a fairly tortured and extensive

24 procedural history dating back to June 11, 2010, when plaintiff 25 applied for Title 2 and Title 16 benefits under the Social 1 Security Act alleging onset date of March 15, 2006. Her claim 2 at page 273 was that she is disabled based upon her bipolar 3 disorder and agoraphobia, also panic attacks and anxiety 4 disorder. 5 A hearing was conducted on November 8, 2011, by 6 Administrative Law Judge Marie Greener. Judge Greener issued an 7 adverse decision on December 15, 2011. On July 5, 2013, the 8 Social Security Administration Appeals Council remanded the

9 matter on the basis that there was an insufficient explanation 10 for rejecting the opinions of Nurse Practitioner Little and 11 cosigned by Dr. Jimenez, and also there was a lack of testimony 12 from a vocational exert with opinions as to job base erosion. 13 A subsequent hearing was conducted by ALJ Greener on 14 April 17, 2014. Judge Greener issued another adverse 15 determination July 22, 2014. On December 6, 2015, the Appeals 16 Council denied review of that decision. 17 However, on September 29, 2017, United States District 18 Court for the Middle District of Pennsylvania, Judge William J. 19 Nealon, N-e-a-l-o-n, vacated the commissioner's determination 20 and remanded the matter claiming there was insufficient 21 discussion of why there was no limitation in the residual 22 functional capacity finding involving attention, concentration, 23 and attendance. So the Social Security Administration Appeals

24 Council issued a subsequent decision on April 27, 2018, 25 remanding the matter and directing it be assigned to a new 1 administrative law judge. 2 The matter was subsequently assigned to Administrative 3 Law Judge Elizabeth Koennecke, K-o-e-n-n-e-c-k-e. Judge 4 Koennecke on May 4, 2018, in response to the District Court's 5 concern, requested updated information from plaintiff at 762 to 6 763. There was no further clarification or material submitted 7 however. 8 Judge Koennecke conducted a hearing on January 9,

9 2019, and subsequently issued an unfavorable decision on 10 February 13, 2019. That became a final determination of the 11 agency on December 2, 2019, when the Social Security 12 Administration Appeals Council denied plaintiff's application 13 for review. This actions was commenced February 3, 2020, and is 14 timely. 15 In her decision, Judge Koennecke applied the familiar 16 five-step sequential test for determining disability. She first 17 found that plaintiff was insured through December 31, 2010. 18 At step 1, she concluded plaintiff had not engaged in 19 substantial gainful activity since March 15, 2006. 20 At step 2, ALJ Koennecke concluded that plaintiff does 21 suffer from severe impairments that impose more than minimal 22 limitations on her ability to perform basic work functions, 23 stating that they are, quote, "all mental impairments as

24 variously characterized." 25 At step 3, ALJ Koennecke concluded that plaintiff's 1 conditions do not meet or medically equal any of the listed 2 presumptively disabling conditions set forth in the 3 commissioner's regulations, specifically considering listings 4 12.04, 12.06, 12.08, and 12.15. 5 ALJ Koennecke next concluded that plaintiff maintains 6 the residual functional capacity or RFC to perform a full range 7 of work at all exertional levels with several nonexertional 8 limitations addressing plaintiff's mental limitations.

9 The administrative law judge at step 4 concluded that 10 based on the residual functional capacity, the plaintiff was not 11 capable of performing her past relevant work as a wire worker, 12 both as generally and actually performed at the time. At step 13 5, ALJ Koennecke concluded -- I'm sorry. At step 4, the 14 administrative law judge concluded that plaintiff is capable of 15 performing her past relevant work as a wire worker both as 16 generally and actually performed. 17 As an alternative basis for finding no disability, the 18 ALJ proceeded to step 5 and concluded based on the testimony of 19 a vocational expert that plaintiff could also perform other 20 available work in the national economy, representative positions 21 being warehouse worker, laundry laborer, and evening industrial 22 cleaner, and that plaintiff is therefore not disabled at the 23 relevant times.

24 The Court's function in this case of course is limited 25 and extremely deferential. The Court must determine whether the 1 correct legal principles were applied and the resulting 2 determination is supported by substantial evidence, which is 3 defined as such relevant evidence as a reasonable factfinder 4 would conclude sufficient to support a finding. 5 The Second Circuit addressed the standard in Brault, 6 B-r-a-u-l-t, versus Social Security Administration Commissioner, 7 reported at 683 F.3d 443 from 2012, noting that the standard is 8 highly deferential, more stringent than even the clearly

9 erroneous standard that courts and lawyers are familiar with. 10 Notably, the Court stated that the substantial evidence standard 11 means that once an ALJ finds a fact, that fact can be rejected 12 only if a reasonable factfinder would have to conclude 13 otherwise. 14 The plaintiff in this case has two basic contentions. 15 In the first, she claims that the RFC finding is unsupported and 16 resulted from improper weighing of medical opinion evidence. 17 Subsumed within that argument is the claim that the treating 18 source rule was violated when Dr. Shah's opinion was not 19 accorded -- opinions, I should say, were not accorded 20 controlling weight. 21 The second argument raised by the plaintiff concerns 22 the evaluation of plaintiff 's subjective complaints. The 23 argument is that her complaints were improperly weighed and

24 rejected. 25 Of course, the first order of business for an 1 administrative law judge such as ALJ Koennecke was to determine 2 plaintiff's RFC. A claimant's RFC represents a finding of the 3 range of tasks she is capable of performing notwithstanding the 4 impairments at issue. An RFC determination is informed by 5 consideration of all of the relevant medical and other evidence. 6 20 CFR Sections 404.1545(a)(3) and 416.945(a)(3). The RFC 7 finding must include assessment of both a plaintiff's exertional 8 capabilities as well as nonexertional limitations including

9 those resulting from mental impairments. And of course, an 10 ALJ's RFC determination, like all of the parts of the decision, 11 must be supported by substantial evidence. 12 In this case, there is considerable opinion evidence 13 in the record including two opinions reported at 12F and 22F of 14 the administrative transcript from Dr. Arun Shah, a treating 15 psychiatrist. 16 Dr. Shah on March -- I'm sorry, May 13, 2013, 17 evaluated the plaintiff and concluded that plaintiff is markedly 18 limited in many areas including the ability to maintain 19 attention and concentration for extended periods, the ability to 20 perform activities within a schedule and so forth, the ability 21 to work in coordination or proximity to others without being 22 unduly distracted, the ability to complete a normal workweek 23 without interruptions, the ability to interact appropriately

24 with the general public, the ability to get along with 25 coworkers, and the ability to travel to unfamiliar places or use 1 public transportation. That opinion is at 514 through 521 of 2 the administrative transcript. 3 A second opinion from Dr. Shah was given on March 28, 4 2014, and contains similar limitations in a checkbox format with 5 many marked limitations. 6 Dr. Shah also issued a letter on June 11, 2013, that 7 appears at 535 of the administrative transcript, stating that 8 the plaintiff remains disabled. Of course, that doesn't include

9 a function by function analysis and speaks to a matter that is 10 reserved to the commissioner. 11 Dr. Shah is clearly a treating source as recognized by 12 the administrative law judge. As a treating source, his 13 opinions ordinarily would be entitled to considerable deference 14 provided that his opinions are supported by medically acceptable 15 clinical and laboratory diagnostic techniques and are not 16 inconsistent with other substantial evidence. Veino, V-e-i-n-o, 17 versus Barnhart, 312 F.3d 578, 588, Second Circuit 2002. 18 Such opinions are not controlling, however, if they 19 are contrary to other substantial evidence in the record, 20 including the opinions of other medical experts. Veino at 312 21 F.3d at 588. Where there are conflicts in the form of 22 contradictory medical evidence, their resolution of course is 23 properly entrusted to the commissioner.

24 If controlling weight is not given to a treating 25 source's opinion, the ALJ must apply several factors that are 1 specified in the regulations, 20 CFR Sections 404.1527 and 2 416.927, the so-called Burgess factors, and the ALJ must provide 3 reasons for the rejection. 4 Of course, under Estrella versus Berryhill, 925 F.3d 5 90 from Second Circuit 2019, in recognition of the fact that in 6 most instances, the ALJ does not specifically list the Burgess 7 factors, the Second Circuit has noted that the treating source 8 rule is not violated if a searching review of the record reveals

9 that the factors have been properly considered. 10 In this case, the administrative law judge discussed 11 Dr. Shah's opinions at pages 595 to 596 and again at 599 of the 12 administrative transcript. She concluded that the opinions were 13 not supported by treatment records. She also noted that they 14 were not supported by the cited global assessment on function or 15 GAF scores recorded. Dr. Shah at page 514 listed the current 16 GAF at 60 to 65, and although it may be an error, an obvious 17 error, stated that the lowest GAF for the past year for the 18 plaintiff was 75. At 555, the current GAF was listed at 60 to 19 65, and the lowest GAF in the past year was listed as 60. 20 Under the standard set out in DSM-4 -- and I 21 understand that that standard no longer applies, but it did at 22 the time of Dr. Shah's opinions -- a GAF of 61 to 70 represents 23 some mild symptoms or some difficulty in social, occupational,

24 or school functioning, but generally functioning pretty well, 25 has some meaningful interpersonal relationships. 60, which is 1 at the high end of the 51 to 60 category, reflects moderate 2 symptoms, more moderate difficulty in social, occupation, or 3 school functioning. 4 The consideration of GAF scores is proper as one 5 factor. It is certainly not the be all and end all, and in many 6 respects, represents only a snapshot of plaintiff's functioning 7 at any given time. But the Court in Leonard versus Commissioner 8 of Social Security, 2016 Westlaw 3511780 from the Northern

9 District of New York, May 19, 2016, approved of consideration of 10 GAF score -- in that case, a score of 60 -- as inconsistent with 11 the conclusion of serious limitations in maintaining attention, 12 working without distraction, and adhering to standards of 13 neatness and cleanliness. The Second Circuit affirmed that case 14 at 2016 Westlaw 3512219 and noted in note 2 the relevance on a 15 limited basis of GAF score. 16 In this case, this is not a situation where a 17 treatment note is cherry-picked and it has a GAF score of a 18 certain figure. This is a GAF score recorded by the very person 19 that is issuing the opinions with the significant limitations. 20 And moreover, it doesn't represent just a single snapshot 21 because it reports the lowest GAF score in the past year in both 22 instances. I think the ALJ properly considered those as a 23 factor in weighing Dr. Shah's opinions.

24 The ALJ also noted the lack of deficits in attention 25 and concentration reflected in treatment notes, the fact that it 1 was speculative when it comes to absences, and the significant 2 gaps in treatment. There are essentially four gaps in 3 treatment: October 2011 to March 2013, July 2014 to November 4 2015, November 2015 to July 2016, and July 2016 to March of 5 2017, a proper consideration. 6 The ALJ also noted that Dr. Shah found a marked 7 limitation in the plaintiff's ability to perform -- to take 8 public transportation, and yet she reported to one of the

9 consultative examiners that she is -- and she testified she can 10 take public transportation. In my view, the Burgess factors 11 were properly considered. I am not able to say that a searching 12 review of the record reflects a violation of the treating source 13 rule in consideration of Dr. Shah's opinions. 14 The record also contains opinions from Nurse 15 Practitioner Ryan Little. In 2011, November 2011, at page 501 16 to page 508, a checkbox form reflects that there are marked 17 limitation in several areas including the ability to maintain 18 attention and concentration for extended periods, the ability to 19 perform activities within a schedule and maintain regular 20 attendance, the ability to make simple work-related decisions, 21 the ability to accept instructions and respond appropriately to 22 criticism, the ability to get along with coworkers or peers, the 23 ability to respond appropriately to changes in work setting, and

24 the ability to be aware of normal hazards. 25 Nurse Practitioner Little also indicated that the 1 plaintiff is incapable of even a low stress position and would 2 be likely absent more than three times a month. At pages 835 3 through 840, Nurse Practitioner Little provides an opinion from 4 February 28, 2018, indicating similarly marked limitations in 5 various areas and a likelihood that plaintiff would be absent 6 two to three times per month. 7 On December 13, 2018, appearing at 842 to 847, Nurse 8 Practitioner Little provided yet another assessment in a

9 checkbox format, similarly finding marked limitations in many 10 areas and a finding that plaintiff would be absent more than 11 three times per month. 12 Nurse Practitioner Little signed or authored a "to 13 whom it may concern" letter on July 13, 2017, that is cosigned 14 by Dr. Domingo Jimenez. There's no indication in the record 15 that Dr. Jimenez ever treated the plaintiff. It references 16 anxiety disorder with agoraphobia and social anxiety. It finds 17 marked limitations in several areas. 18 The record further contains some conclusory opinions 19 from Nurse Practitioner Little. May 14, 2013, she is currently 20 disabled from her mental health issues, a matter reserved to the 21 commissioner. On May 26, 2011, at 531, plaintiff has been 22 unable to work from 2009 until the present. Again, no function 23 by function limitations and on a matter reserved for the

24 commissioner, and once again, inability to work doesn't -- is 25 not supported by any functional limitations cited. And 1 March 10, 2014, 554, similarly plaintiff is unable to work. 2 The opinions of Nurse Practitioner Little are 3 comprehensively discussed by Administrative Law Judge Koennecke 4 as 596, 597 and again at 598 to 599, not given significant 5 weight. Of course, under the regulations that were in effect at 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 The ALJ properly rejected the nurse practitioner's 11 opinions because the treatment notes do not support. There are 12 many visits without any findings. There's lack of evidence of 13 deficits in plaintiff's ability to concentrate and attention. 14 The activities of daily living were properly considered when 15 rejecting those opinions. Frankly, a modest number of 16 relatively benign transcript notes with reference to any anxiety 17 and depression. 18 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. The question is not whether substantial 22 evidence would support a finding of no disability or a finding 23 of disability. The issue is whether substantial evidence

24 supports the finding of no disability. I find no error in 25 refusing to accord greater weight to the opinions of Nurse 1 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. She opined that the plaintiff is able to follow 7 and understand simple directions and instructions and to perform 8 simple tasks independently. She is able to maintain attention

9 and concentration and is able to maintain a regular schedule. 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. Her 13 opinions are at 374 to 378 in the record. They are discussed at 14 594 and given some weight. 15 It is true that a consultative examiner's opinion can 16 provide substantial evidence to an RFC finding if it is 17 supported. Dr. Long's opinions are well supported by the exam 18 findings and are consistent with a residual functional capacity 19 finding. 20 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. However, 25 that statement is vague, and the medical source statement that I 1 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. It is Dr. Loomis's opinion that 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 10 supervision, make appropriate decisions, relate adequately with 11 others, and appropriately deal with stress. The opinion was 12 discussed at pages 594 to 595 and given some weight. 13 As the administrative law judge noted, however, some 14 of the conclusions including the marked impairment and the 15 ability to maintain attention and concentration are inconsistent 16 with the exam findings since at page 525, she assessed 17 plaintiff's ability in the area of concentration and attendance 18 as moderately impaired and spelled that out. 19 It also indicates in Administrative Law Judge 20 Koennecke's consideration of Dr. Loomis's opinion, which she 21 gave some weight, that it's based quite a bit on plaintiff's 22 subjective statements, and in any event, is generally consistent 23 with some exceptions to -- with the RFC finding.

24 There is also the opinion, two opinions of Dr. T. 25 Harding, a nonexamining state agency consultant from 1 September 10, 2010. In the first Exhibit 3F, he considers. He 2 applies the psychiatric review technique, finds the existence of 3 some impairments, but finds that they do not meet the B or C 4 criteria of the listings, finding a moderate limitation and 5 restriction in activities of daily living, a moderate 6 restriction in maintaining social functioning, and a moderate 7 limitation to maintaining concentration, persistence, or pace at 8 page 429.

9 Assessing plaintiff's residual functional capacity 10 from a mental standpoint, Dr. Harding finds some moderate 11 limitations at page 433 to 435, but summarizes as follows: CE 12 examiner opines that claimant is able to perform simple tasks 13 independently and maintain attention and concentration, is able 14 to keep a regular schedule and learn new tasks and perform 15 complex tasks independently and make appropriate decisions and 16 relate adequately with others and is capable of dealing with 17 stress. With respect to cognitive functioning, this opinion is 18 consistent with the MER, the medical evidence in the file, and 19 is adopted. And based on the medical evidence, quote, "Claimant 20 retains the capacity for simple and semiskilled work," close 21 quote. 22 That opinion of course is consistent with the residual 23 functional capacity finding. It was discussed at pages 597 to

24 598 and given some weight. I find no error in conclusion in the 25 weighing of the various medical opinions. Under Veino, it is 1 for the administrative law judge to weigh conflicting opinions, 2 and it is plaintiff's burden to show greater limitations than 3 set forth in the residual functional capacity, and I find that 4 that burden is not carried. 5 Turning to the second argument, what we used to refer 6 to as credibility, the evaluation of plaintiff's subjective 7 complaints. Naturally an ALJ must take into account a 8 plaintiff's subjective complaints in rendering the five-step

9 disability analysis. 20 CFR Sections 404.1529 and 416.929. 10 The ALJ is not, comma, however, required to blindly 11 accept the subjective testimony of a claimant. It is up to the 12 ALJ instead in his or her discretion to weigh the credibility of 13 the claimant's testimony in light of the other evidence in the 14 record. Genier, G-e-n-i-e-r, versus Astrue, 606 F.3d 46, Second 15 Circuit 2010. 16 In this case, the administrative law judge recounted 17 plaintiff's claims at 591 and 592 and applied the required 18 two-step analysis under Social Security Ruling or SSR 16-3P. 19 The administrative law judge first concluded that plaintiff's 20 medically determinable mental impairments could reasonably cause 21 the symptoms reported, but found that plaintiff's testimony 22 concerning those symptoms was not consistent with other medical 23 evidence, explaining her ruling from 592 to 600, pointing out

24 among other things that there was a lack of support from the 25 clinical findings for the reported symptoms, the clinical 1 findings being relatively benign. 2 She also cited significant and multiple gaps in 3 treatment, proper considerations under Landis P. versus 4 Commissioner of Social Security, 2020 Westlaw 2770434 from the 5 Northern District of New York 2020; as well as Camille versus 6 Colvin, 652 Federal Appendix 25 from the Second Circuit 2016. 7 It is true that in some instances, there may be 8 evidence that gaps in treatment have been caused by a mental

9 condition, but there is little support, if any, in the record 10 that this plaintiff could not, for example, retain a 11 psychiatrist when recommended by Nurse Practitioner Little and 12 could not attend treatment during those gap periods. 13 I note that plaintiff alleges an onset date of March 14 of 2006, and yet her first significant treatment for her mental 15 condition did not take place until November 2008 when she first 16 consulted with Nurse Practitioner Little, and at that time or 17 shortly thereafter, she declined Nurse Practitioner Little's 18 recommendation to seek specialized care. 19 The reported symptoms are also inconsistent with the 20 opinions of the consultative examiners and plaintiff's 21 activities of daily living. It was noted that plaintiff has a 22 poor work history, and the plaintiff was apparently laid off in 23 2005 due to lack of work rather than her mental condition.

24 These are all permissible factors. 25 Administrative Law Judge Koennecke also based her 1 decision in part on observations of the plaintiff during the 2 hearing in this matter. Simply put, I find that plaintiff has 3 failed to carry her burden of demonstrating that no reasonable 4 factfinder, or put another way, that a reasonable factfinder 5 would have to find that plaintiff's complaints were credible. 6 So in conclusion, I reject plaintiff's arguments. I 7 find that the determination of the administrative law judge was 8 supported by substantial evidence and resulted from the

9 application of proper legal principles. I will therefore grant 10 judgment on the pleadings to the defendant and order dismissal 11 of plaintiff's complaint. 12 Thank you both for excellent presentations. I enjoyed 13 working with you. Please stay safe. 14 (The matter adjourned at 11:59 a.m.) 15 16 17 18 19 20 21 22 23 24

25 1 CERTIFICATION OF OFFICIAL REPORTER 2 3 4 I, JACQUELINE STROFFOLINO, RPR, Official Court Reporter, 5 in and for the United States District Court for the Northern 6 District of New York, do hereby certify that pursuant to Section 7 753, Title 28, United States Code, that the foregoing is a true 8 and correct transcript of the stenographically reported

9 proceedings held in the above-entitled matter and that the 10 transcript page format is in conformance with the regulations of 11 the Judicial Conference of the United States. 12 13 Dated this 22nd day of April, 2021. 14 15 /s/ JACQUELINE STROFFOLINO 16 JACQUELINE STROFFOLINO, RPR 17 FEDERAL OFFICIAL COURT REPORTER 18 19 20 21 22 23 24