AKASHA SHAYTAN. F.,
Plaintiff, Civil Action No. 5:19-CV-0977 (DEP) v.
ANDREW M. SAUL, Commissioner Social Security Administration,
Defendant.
APPEARANCES: OF COUNSEL:
FOR PLAINTIFF
LEGAL AID SOCIETY OF ELIZABETH V. KRUPAR, ESQ. MID-NEW YORK, INC. 221 South Warren St. Syracuse, NY 13202
FOR DEFENDANT HON. ANTOINETTE T. BACON PAUL NITZE, ESQ. Acting United States Attorney Special Assistant U.S. Attorney P.O. Box 7198 100 S. Clinton Street Syracuse, NY 13261-7198
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 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on September 1, 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. 2) The Commissioner=s determination that the plaintiff's disability ended on September 14, 2017, and the plaintiff has not become disabled
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. again since that date, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based
upon this determination, DISMISSING plaintiff's complaint in its entirety.
David E. Peebles U.S. Magistrate Judge Dated: September 8, 2020 Syracuse, NY
UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x AKASHA F., Plaintiff, -v- 19-CV-977 COMMISSIONER OF SOCIAL SECURITY, Defendant. ------------------------------------------------------x TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES September 1, 2020 100 South Clinton Street, Syracuse, New York For the Plaintiff: (Appearance by telephone) LEGAL AID SOCIETY OF MID-NEW YORK, INC. 221 South Warren Street Suite 310 Syracuse, New York 13202 BY: ELIZABETH V. KRUPAR, ESQ. For the Defendant: (Appearance by telephone) SOCIAL SECURITY ADMINISTRATION J.F.K. Federal Building, Room 625 15 New Sudbury Street Boston, Massachusetts 02203 BY: PAUL NITZE, ESQ. Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545 1 (The Court and all parties present by telephone. 2 Time noted: 1:33 p.m.) 3 THE COURT: Let me begin by thanking both counsel for 4 excellent detailed and forceful presentations dealing with this 5 interesting case. 6 Plaintiff commenced this proceeding pursuant to 42,
7 United States Code, Sections 405(g) and 1383(c)(3) to challenge 8 a determination by the Commissioner of Social Security. This is 9 a somewhat different case than the ordinary in that the 10 plaintiff was previously at one time granted benefits under the 11 Social Security Act. The focus of the Administrative Law 12 Judge's decision in this case and the Commissioner's ultimate 13 determination was whether medical improvement had occurred and 14 whether, notwithstanding that medical improvement, plaintiff 15 continued to be disabled and unable to perform work functions in 16 positions in the national economy. 17 The background is as follows: Plaintiff is in the 18 process, beginning in August of 2017, of a transgender 19 transformation, female to male. The plaintiff prefers to be 20 called Jakob, with a K, although he has not legally changed his 21 name. As the Administrative Law Judge, I will refer to the
22 plaintiff using male pronouns. 23 Plaintiff was born in February of 1993 and is 24 currently 27 years old. He stands 5'3" or 5'2" inches, 25 depending on where in the record you refer, in height and is 1 obese, weighing somewhere at various times between 196 and 2 225 pounds. Plaintiff lives in an apartment in Syracuse with 3 his partner, David W. It is a one bedroom fourth floor 4 apartment. They have a cat. Plaintiff has previously lived in 5 Arizona and with his mother in Niagara Falls. Plaintiff has a 6 high school degree and one year of college education. Plaintiff
7 has a massage therapy certification. 8 Plaintiff was never married and has no children. He 9 is right-handed. He has no driver's license. He does use 10 public transportation, including buses and Ubers. Plaintiff has 11 never worked except as a seasonal employee in Arizona at age 16. 12 He also stated that he has done some volunteer work at a 13 library. 14 Physically, plaintiff has been treated for 15 Legg-Calve-Perthes disease, which, as I understand it, is a 16 childhood disease that affects the hip and occurs when the blood 17 supply to the rounded head of the femur is temporarily disrupted 18 causing bone cells to die, a process known as avascular 19 necrosis. The plaintiff underwent, to address that condition, a 20 hip replacement in January of 2014 at the Shriners Hospital. He 21 also suffers from polycystic ovary syndrome or PCOS. He
22 presented to the emergency rooms at two hospitals with vaginal 23 bleeding, once in Oneida in May of 2016, and once at Upstate in 24 February of 2018. He also suffers from endometriosis. 25 Mentally, plaintiff has been variously diagnosed as 1 having posttraumatic stress disorder or PTSD, depression and 2 depressive disorder, gender dysphoria, anxiety disorder, and 3 dissociative identity disorder. Plaintiff's partner, David, 4 testified that plaintiff has as many as ten separate identities. 5 Plaintiff undergoes hallucinations. 6 Plaintiff initially saw Dr. Emeka Anumba who
7 apparently has abandoned the practice of medicine. His primary 8 provider is Nurse Practitioner Kathleen McDonald at 9 St. Joseph's. He also sees Dr. Rachel Hopkins for diabetes and 10 transgender evaluation and treatment. He receives treatment at 11 Syracuse Behavioral Health, which is also known as or has 12 transitioned to Helio Health, including from LMSW Anita Fellows 13 who he sees weekly. There's indication that his care is 14 overseen by Dr. Damon Tohtz, although there did not appear to be 15 any records showing that Dr. Tohtz has actually examined or 16 evaluated the plaintiff. 17 Plaintiff is on variations medications, including 18 Klonopin, Risperdal, Metformin, Lisinopril, testosterone since 19 September of 2017, insulin, and Ibuprofen. Plaintiff testified 20 he's never smoked, although at page 565 there's indication he's 21 told Dr. Ganesh that he was a former smoker.
22 Plaintiff has a fairly wide range of activities of 23 daily living. He is able to groom, cook and prepare meals, wash 24 dishes, clean, mop, sweep, vacuum. There's a question as to 25 whether he's able to do laundry, and the record is equivocal on 1 that issue. He uses public transportation as I previously 2 indicated, shops, goes out alone, socializes, reads, writes, he 3 does beaded jewelry, watches television, engages in social 4 media, swims, goes out to dinner occasionally and to the movies, 5 and watches David, his partner, play video games. 6 Procedurally, plaintiff was found to be disabled on
7 January 24, 2013, and eligible for Supplemental Security Income 8 Title XVI benefits with an onset date of November 7, 2012. On 9 September 14, 2017, there was a determination of medical 10 improvement affecting plaintiff's ability to work and a finding 11 of no disability was entered effective on September 14, 2017. A 12 hearing was conducted by Administrative Law Judge Robyn L. 13 Hoffman on August 15, 2018, to address the issue of medical 14 improvement. At that hearing, plaintiff proceeded without legal 15 or other representation. On October 18, 2018, Administrative 16 Law Judge Hoffman issued an unfavorable decision. On July 23, 17 2019, the Social Security Administration Appeals Council denied 18 plaintiff's request for review. In doing that, the Appeals 19 Council reviewed additional documents produced from Therapist 20 Fellows and Dr. Tohtz, as well as Nurse Practitioner McDonald, 21 and found that the consideration of those documents would not
22 have likely altered the result. This action was commenced on 23 August 7, 2019, and is timely. 24 In her decision, ALJ Hoffman applied the test for 25 medical improvement. At step one, the Administrative Law Judge 1 concluded that at the reference point/time of January 24, 2013, 2 known as the comparison point decision, or CPD, plaintiff 3 suffered from severe impairments imposing more than minimal 4 limitations on his ability to perform basic work functions, 5 including Legg-Calve-Perthes disease of the left hip and 6 obesity.
7 The Administrative Law Judge then concluded that 8 since September 14, 2017, plaintiff suffers from severe 9 impairments, including Legg-Calve-Perthes disease of the left 10 hip, status post total hip replacement, obesity, hypertension, 11 polycystic ovary syndrome or PCOS, posttraumatic stress disorder 12 or PTSD, anxiety disorder, depressive disorder, gender 13 dysphoria, and dissociative disorder. 14 The ALJ next concluded at step three of the 15 sequential analysis that since September 14, 2017, plaintiff's 16 conditions do not meet or medically equal any of the listed 17 presumptively disabling conditions set forth in the 18 Commissioner's regulations, specifically considering listing 19 1.02 related to major joint dysfunctions, 1.03 related to 20 reconstructive surgery of major weightbearing joints, 7.18 21 repeated complaints of hematological disorders, 12.04
22 depression, bipolar disorder, and so forth, 12.06 related to 23 anxiety and obsessive compulsive disorder, and 12.15 related to 24 trauma and stressor-related disorders. ALJ Hoffman also 25 considered plaintiff's obesity. 1 After making that review, ALJ Hoffman concluded that 2 since September 14, 2017, plaintiff retains the ability to 3 perform light work, specifically being able to lift and carry 4 20 pounds occasionally and 10 pounds frequently. He can sit for 5 up to six hours and stand or walk for approximately six hours in 6 an eight-hour day with normal breaks. Mentally, the plaintiff
7 is able to understand, carry out, and remember simple 8 instructions, respond appropriately to supervision, coworkers, 9 and usual work situations, and can deal with changes in a 10 routine work setting. 11 At step four, Administrative Law Judge Hoffman noted 12 that plaintiff did not have any past relevant work. 13 She then proceeded to step five. She noted that if 14 plaintiff were able to perform a full range of light work, a 15 finding of no disability would be directed by the 16 Medical-Vocational Guidelines set forth in the Commissioner's 17 regulations, and specifically Rule 202.20. Relying on Social 18 Security Ruling 85-15, ALJ Hoffman concluded that plaintiff's 19 additional limitations, nonexertional limitations that is, do 20 not preclude him from performing basic mental requirements of 21 unskilled work and, therefore, concluded that plaintiff
22 experienced medical improvement and was not disabled subsequent 23 to September 14, 2017. 24 As you know, the Court must review the determination 25 and analyze whether it is supported by substantial evidence and 1 whether the Administrative Law Judge applied the correct legal 2 principles. The standard to be applied is extremely 3 deferential. The Second Circuit noted in Brault v. Social 4 Security Administration Commissioner, 683 F.3d 443 from 2012, 5 that this is a very stringent test akin to or even, perhaps, 6 greater than the clearly erroneous test which we as lawyers are
7 familiar with. Of course, substantial evidence means such 8 relevant evidence as a reasonable mind might accept as adequate 9 to support a conclusion. The Second Circuit noted in Brault 10 that the standard means once an Administrative Law Judge has 11 found a fact, that fact can be rejected only if a reasonable 12 factfinder would have to conclude otherwise. 13 Plaintiff raises four basic contentions in this case. 14 He contends that the plaintiff -- the ALJ, I'm sorry, failed to 15 fulfill his duty to develop a full and fair record and 16 specifically to obtain records from Planned Parenthood and 17 Upstate Women's Health Services. The second argument is that 18 the RFC was flawed because it did not include nonexertional 19 limitations and specifically a mild limitation in interacting 20 with others and a moderate limitation in adapting and managing 21 self. The third argument is that the plaintiff's subjective
22 claims of symptoms were not properly analyzed. And fourth, the 23 step five determination was flawed because it is based on an 24 erroneous residual functional capacity finding and should have 25 been the subject of vocational expert testimony rather than 1 reliance on the grids. 2 I note that the termination of medical benefits is 3 governed by both 42, United States Code, Section 421 and 20 4 C.F.R. 6416.994. The Commissioner is statutorily charged with 5 the duty to engage in a continuing periodic review of a 6 claimant's condition. If, based on that review, the
7 Commissioner determines that the disabling condition has 8 subsided, does not exist, or is not disabling, a termination of 9 benefits may be ordered. 10 In making a review to determine whether the cessation 11 of Social Security benefits is warranted, the Commissioner must 12 examine the claimant's current condition, ordinarily requiring 13 assessment of the plaintiff's condition at the time of the 14 hearing. Generally speaking, termination of benefits is 15 appropriate when there has been medical improvement related to 16 the claimant's ability to work, the claimant has benefitted from 17 advances in medical or vocational technology related to the 18 ability to work regardless of the lack of medical improvement, a 19 claimant has undergone vocational therapy related to the ability 20 to work based on new or improved diagnostic or evaluative 21 techniques, it is demonstrated that a claimant's condition was
22 not as disabling as previously regarded, or substantial evidence 23 shows that an earlier finding of disability was erroneous. 24 When a claimant's medical condition improves to the 25 extent that he or she can engage in substantial gainful 1 activity, that party will no longer be entitled to benefits 2 under the act. In order to support the termination of benefits, 3 the Commissioner must meet a burden of showing by substantial 4 evidence that a medical improvement has taken place in a 5 claimant's ability to perform work activity. 6 If there is medical improvement, the Commissioner
7 must determine whether the improvement is related to the 8 claimant's ability to work. A medical improvement will be 9 related to the claimant's ability to work where it results in a 10 decrease in the severity of the impairment present at the time 11 of the most recent favorable medical decision and an increase in 12 the claimant's functional capacity to perform basic work 13 activities. 14 The medical improvement test entails a -- it depends 15 on whether you -- where you look. It's either a seven or eight 16 step test. Michael M. v. Commissioner of Social Security, a 17 case from this district, Magistrate Judge Baxter, it is reported 18 at 2019 WL 530801, characterizes it as a seven -- as an eight 19 step test for determining disability. Chavis also deals with 20 termination of benefits, Chavis v. Astrue, 2010 WL 624039, a 21 decision from District Judge Kahn. He also characterizes it as
22 an eight step test for determining medical improvement. I think 23 Judge Hoffman may have referred to it as a seven step test, but 24 regardless, it's clear to me that she applied the appropriate 25 test. 1 Turning to the specifics of plaintiff's arguments, 2 there's no question that the plaintiff underwent medical 3 improvement of the condition that resulted in the initial 4 finding of disability when he underwent a hip replacement. 5 Turning again to the development of the record issue, there is 6 no question that the -- can I ask you to mute your phones if you
7 have not done so already? 8 MR. NITZE: Yes, your Honor. 9 THE COURT: So undeniably -- unquestionably, an 10 Administrative Law Judge has a duty to develop a full and fair 11 record. Disability hearings are not adversarial proceedings in 12 the truest sense. That duty is particularly acute when a 13 plaintiff is acting pro sé unrepresented such as occurred in 14 this case. Bodine v. Colvin, 2013 WL 1108625 from the Northern 15 District of New York, 2013, that was adopted at 2013 WL 1104127 16 on March 18, 2013, that is also supported by Morris v. 17 Berryhill, 721 F. App'x 25 from the Second Circuit Court of 18 Appeals, January of 2018. 19 As a side note, I reviewed the colloquy that occurred 20 at the outset of the hearing concerning the right of plaintiff 21 to have counsel or some other non-attorney representative appear
22 on his behalf at the hearing. The colloquy occurs at 163 to 166 23 of the Administrative Transcript. I find that the colloquy was 24 adequate in carrying out the Administrative Law Judge's duty in 25 that regard, Genito v. Commissioner of Social Security, 2017 WL 1 1318002, that is from the Northern District of New York, 2017. 2 The plaintiff's claim is that records should have 3 been obtained concerning his endometriosis and PCOS and they 4 would have resulted in additional limitations. In his argument, 5 however, he does not identify what those limitations would be. 6 The duty under Bodine and the other case that I've cited to
7 develop the record only appears if there are gaps and the 8 question of disability cannot be decided on the existing 9 evidence. In this case, I find no obvious gaps and, therefore, 10 there was no duty to further develop the record. 11 Here, the Administrative Law Judge had before her 12 notes of treatment of both -- from physical and mental 13 providers, as well as consultative opinions from Dr. Dennis M. 14 Noia, a psychologist who examined the plaintiff, and Dr. Kalyani 15 Ganesh, who conducted an orthopedic examination. There was also 16 information from Dr. Mary McLarnon. The Administrative Law 17 Judge specifically asked the plaintiff if there was any 18 additional evidence that should be secured at 165 and 166, and 19 asked at page 167 if there was anything missing, to which the 20 plaintiff responded no. The plaintiff was represented by 21 counsel before the Appeals Council, but did not submit
22 additional records from those two providers that I just 23 identified or ask for time to secure those additional records, 24 so I find no error. I also find that if there was an error in 25 this regard, it is harmless because the treatment notes in the 1 record show that plaintiff's PCOS was stable and don't appear to 2 indicate any additional limitations on his ability to perform 3 work functions. 4 Turning to the nonexertional limitations and the 5 claim that additional limitations should have been included in 6 the RFC, I note that Dr. Dennis Noia examined the plaintiff on
7 June 30, 2017. His report appears at page 560 through 564 of 8 the Administrative Transcript. On examination, Dr. Noia found 9 that plaintiff's demeanor and responsiveness to questions to be 10 cooperative; his manner of relating social skills and overall 11 presentation was adequate; stated that he looked his stated age; 12 his speech intelligibility was fluent; his thought processes 13 were coherent and goal directed with no evidence of delusions, 14 hallucinations, or disordered thinking; his affect was full 15 range and congruent with his thoughts and speech; his mood was 16 reported to be feeling anxious, somewhat tense, and 17 apprehensive; his sensorium was clear; he was oriented times 18 three; his attention and concentration was intact; his recent 19 and remote memory skills were intact; his cognitive functioning 20 was estimated to be in the average range; insight was listed as 21 good; judgment was listed as good.
22 In his medical source statement, Dr. Noia stated the 23 claimant appears to have no limitations understanding, 24 remembering, or applying simple directions and instructions. He 25 appears to have no limitations understanding, remembering, or 1 applying complex directions and instructions. He appears to 2 have no limitations using reasoning and judgment to make 3 work-related decisions. He appears to have mild limitations 4 interacting adequately with supervisors, coworkers, and the 5 public. He appears to have no limitations sustaining 6 concentration and performing a task at a consistent pace. He
7 appears to have no limitations sustaining an ordinary routine 8 and regular attendance at work. He appears to have moderate 9 limitations regulating emotions, controlling behavior, and 10 maintaining wellbeing. He appears to have no limitations 11 maintaining personal hygiene and wearing appropriate attire. He 12 appears to have no limitations being aware of normal hazards and 13 taking appropriate precautions. 14 Dr. Noia's report was discussed by the Administrative 15 Law Judge at page 32. At page 36, it was given great weight. I 16 note that a plaintiff -- an ALJ does not have an obligation to 17 adopt all parts of any one particular opinion. In this case, 18 Dr. Noia's findings are well supported. At page 33, 19 Administrative Law Judge Hoffman did, when addressing the 20 so-called (b) criteria, did acknowledge mild difficulties in 21 interacting with others and moderate difficulties in adapting or
22 managing self. Of course, the (b) criterion do not equate to a 23 residual functional capacity finding, but more importantly, mild 24 limitation in social functioning does not preclude interaction 25 with supervisors/coworkers in a normal work setting or the 1 ability to perform basic demands of unskilled work, Cuenca v. 2 Commissioner, 2016 WL 2865726 from the Northern District of New 3 York, 2016. So I find that Dr. Noia's opinions do support the 4 residual functional capacity and do not preclude the ability to 5 perform basic work functions, simple unskilled work, or to 6 interact with supervisors, coworkers, and the public.
7 The other argument raised in this regard by the 8 plaintiff hinges on Therapist Fellows's August 1, 2018, two-page 9 letter at page 678 and 679. That letter generally describes her 10 treatment of the plaintiff. It does not contain any 11 function-by-function opinions. The only opinion contained in it 12 is, quote, it is my professional opinion that Jakob is unable to 13 work at this time. That is an opinion that even plaintiff 14 conceded is not binding on the Administrative Law Judge and 15 could address this matter entrusted to the discretion of the 16 Commissioner. 17 In terms of the plaintiff's argument drawn from this 18 letter, it was based on inference, his interpretation of what 19 LMSW Fellows said concerning the treatment, so -- and of course, 20 as it was noted under the regulations that apply to this case, 21 Therapist Fellows is not an acceptable medical source. Although
22 the letter appears to be co-signed by Dr. Tohtz, there isn't any 23 evidence in the record that he was truly a treating physician 24 vis-à-vis plaintiff. So in conclusion, I find no error in 25 addressing and including in the RFC any meaningful opinions from 1 Dr. Noia and Therapist Fellows. 2 Turning to the credibility analysis, undeniably an 3 ALJ must take into account a plaintiff's subjective complaints 4 in rendering the five step disability analysis. When examining 5 the issue, however, the ALJ is not required to blindly accept 6 the subjective testimony of a claimant, rather an ALJ retains
7 the discretion to weigh the credibility of the claimant's 8 testimony in light of the other evidence in the records. The 9 analysis of subjective claims of symptomology is essentially a 10 two-step process. In the first instance, the Administrative Law 11 Judge must determine whether the claimed symptoms are consistent 12 with and supported by objective clinical evidence demonstrating 13 that he has a medical impairment that could reasonably be 14 expected to produce the pain or other symptoms alleged. If so, 15 the ALJ then must consider various factors in determining 16 credibility. Those factors are outlined in both 20 C.F.R. 17 Section 416.929 and in Social Security Ruling 16-3p. 18 In this case, Administrative Law Judge Hoffman went 19 through a credibility analysis, discussed plaintiff's claims, 20 and properly engaged in the analysis. I note that although SSR 21 16-3p references several factors, as does the regulation that I
22 cited, it's not necessary to meet all of the factors or to 23 discuss all of the factors. In this case, the -- and of course, 24 the Administrative Law Judge's entire decision should be looked 25 to to determine whether the determination of plaintiff's 1 credibility or subjective claims was properly conducted by the 2 Administrative Law Judge. 3 In this case, ALJ Hoffman recited plaintiff's claims 4 at page 35 and rejected them based primarily on plaintiff's 5 function report, including activities of daily living, the 6 opinions of Dr. Noia and Dr. Ganesh, and the relative benign
7 findings specifically of Dr. Noia. The activities of daily 8 living were outlined at page 36. Activities of daily living are 9 very much an appropriate consideration. This case is not unlike 10 Carvey v. Astrue, 380 F. App'x 50 from the Second Circuit, 2010, 11 where the Second Circuit rejected -- supported the ALJ's 12 rejection of the plaintiff's testimony based on not only 13 extensive objective medical tests, but also the wide ranging 14 activities of the plaintiff, including shopping, cooking, child 15 care, operating a riding lawnmower, attending school functions, 16 cookouts, and auto races. 17 In this case, especially dealing with the physical, 18 plaintiff literally underwent little or no treatment for his 19 physical condition. Again, this is a proper consideration under 20 Diaz-Sanchez v. Berryhill, 295 F.Supp.3d 302 in the Western 21 District of New York in 2018. I find that the Administrative
22 Law Judge properly applied SSR 16-3p in considering the 23 plaintiff's subjective reports of symptomology and the resulting 24 finding of the Administrative Law Judge is supported by 25 substantial evidence. 1 At step five, I note that it is the Commissioner's 2 burden at that step to carry. In this case, the Administrative 3 Law Judge properly relied on SSR 85-15 to address the mental 4 demands of basic unskilled work at page 37 and 38. The 5 vocational expert's testimony is only required if nonexertional 6 limitations limit the range of work permitted by exertional
7 limitations, Bombard-Senecal v. Commissioner, 2014 WL 3778568 8 from the Northern District of New York, 2014, also Sibala v. 9 Astrue from the Second Circuit, 595 F.3d 402, 2010, and 10 Pritchard v. Colvin, 2014 WL 3534987 from the Northern District 11 of New York, 2014. 12 I note that the Second Circuit has held the mere 13 existence of nonexertional limitations does not automatically 14 require the testimony of a vocational expert, Bapp v. Bowen, 802 15 F.3d 601 from the Second Circuit, 1986. And so the finding of 16 nonexertional limitations in this case did not limit the range 17 of work permitted by plaintiff's exertional limitations under 18 Sibala, which I cited a moment ago. 19 The plaintiff relies on Magistrate Judge Andrew 20 Peck's decision in Prince v. Colvin, 2015 WL 1408411. It's a 21 decision I'm not sure I, with all due respect to my former
22 colleague, agree with. I think while SSR 85-15 on its face may 23 only apply in cases involving purely nonexertional limitations, 24 it does provide guidance on the mental demands of simple 25 unskilled work and was properly looked to in that respect by 1 Administrative Law Judge Hoffman. 2 In conclusion, I find that the determination of the 3 Commissioner was supported by substantial evidence and resulted 4 from the application of correct and proper legal principles and 5 I will therefore grant judgment on the pleadings to the 6 defendant.
7 I'd like to thank both counsel and I hope you stay 8 safe during these trying times. 9 MS. KRUPAR: Thank you, your Honor. 10 MR. NITZE: Thank you, your Honor. 11 (Time noted: 2:09 p.m.) 12 13 14 15 16 17 18 19 20 21 22
23 24 25 2 CERTIFICATE OF OFFICIAL REPORTER 5 I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, 6 NYRCR, Official U.S. Court Reporter, in and for the United 7 States District Court for the Northern District of New York, DO 8 HEREBY CERTIFY that pursuant to Section 753, Title 28, United 9 States Code, that the foregoing is a true and correct transcrip 10 of the stenographically reported proceedings held in the 11 above-entitled matter and that the transcript page format is in 12 conformance with the regulations of the Judicial Conference of 13 ]| the United States. 14 15 Dated this 4th day of September, 2020. 16 17 x Naunat F. | avanaugh 18 HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR 19 Official U.S. Court Reporter 20 21 22 23 24 25