Jones v. Commissioner of Social Security

Opinion

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

REBECCA A. J.,

Plaintiff, v. Civil Action No. 8:23-CV-1579 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

COLLINS & HASSELER, PLLC LAWRENCE D. HASSELER, ESQ. 225 State Street Carthage, NY 13619

FOR DEFENDANT

SOCIAL SECURITY ADMIN. GEOFFREY M. PETERS, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235

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), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on November 21,

2024, 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 was not

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. 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.

David E. Peebles U.S. Magistrate Judge Dated: December 6, 2024 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ---------------------------------------------------x REBECCA ANNE J.,

Plaintiff,

vs. 8:23-CV-1579

Defendant. ---------------------------------------------------x DECISION held on November 21, 2024 the HONORABLE DAVID E. PEEBLES, Presiding

APPEARANCES (by telephone) For Plaintiff: COLLINS & HASSELER, PLLC 225 State Street Carthage, NY 13619 BY: LAWRENCE D. HASSELER, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of General Counsel 6401 Security Blvd. Baltimore, MD 21235 BY: GEOFFREY M. PETERS, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: The first issue I wanted to address 2 before I give you my decision is the question of consent. 3 When this case was initially filed, it was assigned to 4 Magistrate Judge Daniel J. Stewart. The consent form that 5 was executed on behalf of the plaintiff on December 18, 2023, 6 and filed, that's docket number 4, consented to the 7 jurisdiction of Magistrate Judge Stewart specifically. The 8 case was since transferred to me. There was a docket entry 9 that required that any consent be withdrawn within I think 10 seven days. That was not done but I wanted to confirm. 11 Attorney Hasseler, on behalf of your client, do you 12 consent to my deciding this case with direct appeal to the 13 Second Circuit Court of Appeals as opposed to issuing a 14 report and recommendation to a district judge? 15 MR. HASSELER: Yes, your Honor, I do. 16 THE COURT: All right. Thank you. 17 Plaintiff has commenced this proceeding pursuant to 18 42, United States Code, Section 405(g) to challenge an 19 adverse determination by the Commissioner of Social Security 20 finding that she was not disabled at the relevant times and 21 therefore ineligible for the disability benefits sought. The 22 background is as follows. 23 Plaintiff was born in January of 1982. She is 24 currently 42 years of age. She stands 5-foot 2-inches in 25 height, and has weighed at various times between 162 and 1 176 pounds. 2 Plaintiff is divorced. She lives in Ogdensburg 3 with her daughter who was 16 years old on December 1, 2022. 4 Prior to November of 2022 she also lived with her mother and 5 her mother's boyfriend. That's at 1410 of the Administrative 6 Transcript. 7 Plaintiff has a high school education and attended 8 SUNY Canton for two years. While in school she was in 9 regular classes. At one point she held a CNA, Certified 10 Nurse's Aid, certificate. It may have expired. There is 11 reference that she may also have been a Licensed Practical 12 Nurse. 13 Plaintiff is right-handed. Plaintiff stopped 14 working in August of 2016. She was apparently fired either 15 for absences, that's at page 44, or not filling out proper 16 paperwork, that's at 41 of the Administrative Transcript. 17 She was a nursing home assistant, an LPN. She has also been 18 a retail cashier at a Stewart's and Family Dollar stores. 19 Physically, plaintiff suffers from migraine 20 headaches which she has experienced since age 16. She also 21 experiences neck pain, or cervical facet arthropathy, back 22 pain, and polyarthralgia. 23 Mentally, she suffers from bipolar disorder and 24 generalized anxiety disorder. She apparently attempted 25 suicide in 2014 when she overdosed on a drug. In terms of 1 treatment, plaintiff has seen for physical general purposes 2 Physician's Assistant Gabrielle Bentley. She also has seen 3 Neurologist Awss Zidan and Physician's Assistant Angela Watts 4 for her headaches at Upstate Medical Center. Mentally, she 5 sees Dr. Patricia Pielnik every four to six weeks primarily 6 for medication management, I would assume, and Licensed 7 Clinical Social Worker Judith Cohen every two weeks. 8 In terms of activities of daily living, plaintiff 9 is capable of grooming, bathing, dressing. She does some 10 cleaning. She rarely shops. She shops at Walmart when she 11 does. She does not drive or use public transportation. She 12 watches television. She reads. She can manage money. She 13 does not do any cooking or laundry. She walks with her 14 daughter and cares for her daughter. And that appears at 43 15 to 44, 1412 and 1416 of the Administrative Transcript. 16 Procedurally, plaintiff applied for Title II 17 benefits on December 4, 2020, alleging an onset date of 18 August 26, 2016. At page 322 her claim of disability is 19 based upon bipolar disorder, social anxiety, general anxiety, 20 depression, low back/lumbar pain with sciatica, neck/cervical 21 pain, migraines, unspecified pain in hands and feet, 22 overweight, and high cholesterol. 23 A hearing was conducted by Administrative Law Judge 24 Bruce Fein on December 1, 2022, to address plaintiff's claims 25 after they were initially denied at the lower level. On 1 December 15, 2022 Administrative Law Judge Fein issued an 2 adverse determination. That became a final determination of 3 the Agency on October 31, 2023, when the Social Security 4 Administration Appeals Council denied her application for 5 review. This action was commenced on December 15, 2023 and 6 is timely. 7 In his decision, ALJ Fein applied the familiar 8 five-step sequential test for determining disability, first 9 noting that plaintiff's last date of insured status was 10 December 31, 2021. 11 At step one, he concluded that plaintiff had not 12 engaged in substantial gainful activity between the onset 13 date and the date of last insured status. 14 At step two, he concluded that plaintiff does 15 suffer from severe medically determinable impairments that 16 impose more than minimal limitations on her ability to 17 perform basic work functions, including migraines with 18 cervicogenic headaches, cervical facet arthropathy, bipolar 19 disorder, generalized anxiety disorder, and polyarthralgia. 20 At step three, he concluded that the plaintiff's 21 conditions do not meet or medically equal any of the listed 22 presumptively disabling conditions set forth in the 23 regulations, specifically considering listings 1.15, 1.16 and 24 11.02, and with respect to the mental impairments 12.04 and 25 12.06. 1 He next concluded based upon the entirety of the 2 record that plaintiff retains the residual functional 3 capacity, or RFC, to perform light work as defined in the 4 regulations, except as follows: 5 She can occasionally climb ropes, ladders, or 6 scaffolds, and frequently climb stairs/ramps, balance, stoop, 7 crouch, crawl, and kneel. She needed to avoid concentrated 8 exposure to unprotected heights, hazardous machinery, bright 9 and/or flashing lights, noises at loud or higher levels per 10 the DOT/SCO, and pulmonary irritants such as fumes, odors, 11 gases, dust, and poorly ventilated areas. She could perform 12 work limited to simple, routine, and repetitive tasks. The 13 plaintiff was limited to work with no production rate or pace 14 work involved. She could occasionally interact with 15 co-workers, supervisors, and the public. She could work in a 16 low stress job defined as only occasional decision-making, 17 changes in work setting, and judgment required on the job. 18 Applying that RFC at step four, ALJ Fein noted that 19 the plaintiff cannot perform her past relevant work that was 20 prior to the date of last insured status and proceeded to 21 step five. With the assistance of testimony from a 22 vocational expert, ALJ Fein noted that the Commissioner bore 23 the burden of proof and found that plaintiff was capable of 24 performing work available in the national economy, not 25 withstanding her limitations as set forth in the RFC, citing 1 as representative positions those of packer, mail room clerk, 2 and plastic hospital products assembler, and therefore, 3 concluded that plaintiff was not disabled at the relevant 4 times. 5 As Attorney Hasseler noted, the Court's function is 6 limited and the standard to be applied is extremely 7 deferential. I must determine whether substantial evidence 8 supports the resulting determination and correct principles 9 were applied. The Second Circuit has noted in Brault versus 10 Social Security Administration Commissioner, 683 F.3d 443, 11 from June 29, 2012, that the standard is deferential, even 12 more so than the clearly erroneous standard that we're all 13 familiar with. 14 The statement made by the Second Circuit concerning 15 that standard is as follows: 16 "The substantial evidence standard means that when 17 an ALJ finds facts, he can only reject those facts only if a 18 reasonable factfinder would have to conclude otherwise." The 19 standard was more recently reiterated in Schillo v. Kijakazi, 20 31 F.4th 64, Second Circuit, April 6, 2022. 21 In this case the plaintiff raises several 22 contentions. There was an argument made that at step three 23 the ALJ erred in concluding that plaintiff's conditions do 24 not meet or equal the listed mental conditions specifically 25 focusing on the so-called B criteria. During oral argument 1 plaintiff withdrew that argument after I pointed out that in 2 a brief to the Commissioner the plaintiff had conceded that 3 her conditions do not meet or medically equal the listed 4 impairments. 5 The second argument is the failure to consider 6 plaintiff's medically determinable impairments in 7 combination. The focus of that argument is on whether or not 8 she would be off task and/or absent to an extent that would 9 make her unemployable. We confirmed during oral argument 10 that except as pertains to the effect of plaintiff's migraine 11 headaches, she does not challenge the physical component of 12 the RFC, including her ability to perform light work. 13 The third argument is that the Administrative Law 14 Judge improperly evaluated the opinion evidence in the 15 record. There was also in the main brief some arguments, 16 additional arguments that were not fully developed, including 17 whether or not the subjective complaints of the plaintiff 18 were properly analyzed. There was also an alleged failure to 19 consider plaintiff's depression at step two, and the Social 20 Security Administration Council's failure to consider new 21 evidence submitted that pertained to the period after the 22 ALJ's decision. 23 The step three argument I will skip because it was 24 withdrawn, although I was otherwise prepared to find that the 25 Commissioner's determination with regard to the B criteria 1 was supported by substantial evidence, and of course there 2 was no argument that plaintiff's conditions could meet or 3 medically equal the C criteria associated with the mental 4 impairments. 5 The residual functional capacity determination is 6 challenged in the next argument. The claimant's RFC 7 represents a range of tasks that she is capable of performing 8 notwithstanding her impairments, CFR Section 404.1545(a), and 9 that means her ability, her mental ability to perform 10 sustained work activities in an ordinary setting on a 11 regular, continuing basis, meaning eight hours a day for five 12 days a week or an equivalent schedule. Tankisi versus 13 Commissioner of Social Security, 521 F.App'x 29 at 33, Second 14 Circuit 2013. That RFC is informed by consideration of the 15 claimant's physical and medical ability, symptomatology, and 16 other limitations that could interfere with work activities 17 on a regular and continuing basis, as well as all of the 18 relevant medical and other evidence in the record. 19 The mental component of the RFC was explained by 20 the Administrative Law Judge at pages 17 to 18 of his 21 decision. He relied on opinions given by consultative 22 examiner Dr. Noia, as well as the prior administrative 23 findings of Drs. Sherer and Bruni. He also relied on 24 treatment notes from treatment providers and plaintiff's 25 activities of daily living. The opinions of Dr. Noia or 1 Dr. Sherer and Dr. Bruni all show and support substantial 2 evidence or provides substantial evidence to support a 3 determination that plaintiff can perform pursuant to a normal 4 schedule. Porteus versus O'Malley, 2024 2180203, Second 5 Circuit 2024. 6 The determination of Dr. Noia is that plaintiff 7 suffers from only a mild limitation sustaining an ordinary 8 routine and regular attendance at work. That's at 1412. The 9 finding of Dr. Sherer, at page 144, is that plaintiff's 10 ability to perform activities within a schedule, maintain 11 regular attendance, and be punctual within customary 12 tolerances is, quote, "not significantly limited." Dr. Bruni 13 in his prior administrative medical finding found similarly 14 at page 171. 15 I agree that plaintiff cites treatment notes that 16 show subjective complaints that could be viewed otherwise, 17 but they do not necessarily dictate a contrary result, unless 18 there is not substantial evidence to support the 19 Commissioner's determination. In the end it is for the 20 Administrative Law Judge to weigh conflicting evidence and, 21 of course, the crux is whether the resulting determination is 22 supported by substantial evidence. The duty of the 23 Administrative Law Judge, and not the Court, to weigh the 24 conflicting medical evidence is well established under Veino 25 v. Barnhart, 312 F.3d 578, Second Circuit 2002. 1 The real crux here is the evaluation of plaintiff's 2 migraine headaches. Clearly they were considered by the 3 Administrative Law Judge and discussed at pages 16 and 17 of 4 the Administrative Transcript. The ALJ noted, as the 5 Commissioner has argued, the significant improvement in the 6 migraine headaches with treatment. Plaintiff testified that 7 she was experiencing them approximately one time per week and 8 there were no emergency room visits as a result of the 9 migraines. The treatment resulting in improvement is 10 consistent with treatment notes, including at 1247, 1244, 11 1757 of the Administrative Transcript. 12 There are many, many notes and I've reviewed 13 carefully the notes, particularly of plaintiff's neurologist, 14 and there are many, many references to no apparent distress. 15 And also Dr. Lorensen at page 14 to 16 noted that plaintiff 16 did not appear to be in acute distress. Drs. Angelotti and 17 Perrotti, who also rendered prior administrative medical 18 findings, opined that plaintiff can perform light work with 19 limitations to minimize the effect of migraines which were 20 included in the RFC that I read earlier. Those prior 21 administrative findings can provide substantial evidence, 22 notwithstanding that they did not examine the plaintiff. 23 Valdes-Ocasio v. Kijakazi, 2023 WL 3573761, from May 22, 24 2023. From the Second Circuit Court of Appeals in Woytowicz 25 v. Commissioner of Social Security, 2016 WL 6427787, from the 1 Northern District of New York, October 5, 2016. That was a 2 report and recommendation that was adopted at 2016 WL 3 6426385, Northern District of New York, February 28, 2016. 4 So I believe that the migraine headaches were 5 properly considered and were the subject of proper 6 limitations set forth in the RFC as described in the prior 7 medical findings. 8 The next argument concerns the evaluation of the 9 medical opinions of record. Because this case was -- the 10 application in this case was filed after March 27, 2017, the 11 case was subject to the amended regulations regarding the 12 consideration of opinion evidence. Under those regulations 13 the Commissioner will not defer or give any specific 14 evidentiary weight, including controlling weight, to any 15 medical opinions, including those from medical sources, but 16 instead will consider whether those opinions are persuasive 17 by primarily considering whether they are supported by and 18 consistent with the record in the case. 20 CFR Section 19 404.1520c. The ALJ must articulate how persuasive he finds 20 all of the medical opinions and explain how he considered the 21 supportability and consistency of those opinions. 22 There are other factors also that may be considered 23 as set out in the regulation, although they're not required 24 to be discussed specifically. In this case again there are 25 conflicting opinions concerning plaintiff's mental status. 1 There is an opinion from Dr. Y. Sherer, it is from May 17, 2 2021, it's a prior administrative medical finding. It 3 appears at 129 to 150 of the Administrative Transcript. A 4 similar opinion, prior administration finding I should say, 5 Dr. T. Bruni, January 4, 2022, it's 152 to 178 of the 6 Administrative Transcript, does support the RFC in this case. 7 And as I said previously, prior administrative 8 medical findings with agency consultants are entitled to 9 strong consideration and can provide substantial evidence if 10 they are supported. The Administrative Law Judge discussed 11 those prior administrative findings at 19 to 20, and 12 explained his reasoning for finding the opinions to be 13 persuasive, and I conclude that he did properly consider 14 those elements of supportability and consistency, and 15 although the explanation is somewhat sparse, it does meet the 16 requirements of the regulations. 17 There is also an opinion from Dr. Dennis Noia, and 18 that is from April 28, 2021. It's based upon an examination 19 of the plaintiff. It appears at 1410 to 1413 of the 20 Administrative Transcript. It supports the residual 21 functional capacity. 22 In his medical source statement, Dr. Noia found 23 primarily mild limitations. He did find moderate limitation 24 regulating emotions, controlling behavior, or maintaining 25 well-being, but that does not undermine the RFC in this case. 1 I find no error in concluding at page 19, as the 2 Administrative Law Judge did, that the opinion of Dr. Noia is 3 persuasive. 4 There is also an opinion from Physician's Assistant 5 Angela Watts from April 18, 2022, at 1476 to 1479. Clearly 6 it is contrary to the opinions that I cited a moment ago, 7 it's clearly disabling, and opines that plaintiff would be 8 precluded generally from performing even basic work 9 activities and need a break from the workplace, and she would 10 need a break two or three times a week unscheduled, and she 11 would be off task 25 percent or more, and absent more than 12 four days per month, clearly disabling. 13 The Administrative Law Judge rejected this opinion 14 as outside of the relevant period because it was given on 15 April 18, 2022, four months after -- three and a half months 16 after the date of last insured status, and found that it is 17 not supported by treatment notes, and, thirdly, inconsistent 18 with the record including other opinions and repeated notes 19 of no distress. Interestingly, in the opinion the 20 physician's assistant states that she hasn't seen the 21 plaintiff since August of 2019, yet it looked like they only 22 met on October 22, 2021 and in April of 2022. I find no 23 error in rejecting that opinion. 24 The difference between that is in Dr. Perrotti's 25 opinion, which was also after the relevant period, 1 Dr. Perrotti clearly considered plaintiff's condition as it 2 relates to the relevant period. That is clear from 152 of 3 the Administrative Transcript. 4 There is also an opinion of Licensed Clinical 5 Social Worker Judith Cohen from September 1, 2021. That's at 6 1453 to 1455. It is again clearly disabling. The 7 Administrative Law Judge considered it at page 20 and found 8 it not to be persuasive and found that it is not supported by 9 treatment notes, which I agree with, which document a few 10 clinical findings, and inconsistent with plaintiff's other 11 findings and activities as noted above. Again, I believe 12 that that's a proper explanation. 13 There is an opinion from Dr. Patricia Pielnik. 14 It's dated April 22, 2022. It appears at 1480 to 1482 of the 15 Administrative Transcript. Again, clearly disabling. The 16 Administrative Law Judge considered at page 20 and found it 17 not to be disabling, not to be persuasive. Again, the 18 explanation is sparse but I believe, especially after a 19 searching review of the entire record, that the requirements 20 of the new regulations concerning medical opinions is not 21 reached. He found the opinion not to be persuasive because 22 it is not supported by her treatment notes. Again, I agree 23 with that after reviewing them, which document physical 24 findings, and inconsistent with claimant's other findings and 25 activities noted above. 1 So, in sum, I believe that the plaintiff is seeking 2 for the Court to weigh the conflicting evidence in a case 3 which as indicated under Veino is not a permissible function 4 of the Court. The fact that three sources agree with the 5 plaintiff is not sufficient to compel deference. Tamara M. 6 versus Saul, 2021 WL 1198359, Northern District of New York, 7 from March 30, 2021. 8 The plaintiff has also raised a concern regarding 9 dealing with the handling of plaintiff's subjective 10 complaints. Obviously an Administrative Law Judge must take 11 into account the plaintiff's subjective complaints when 12 rendering the five-step disability analysis, 21 CFR Section 13 404.1529(a). The Administrative Law Judge, however, is not 14 required to blindly accept the subjective testimony, but 15 instead must proceed to a two-step analysis. 16 First, assessing whether the claimant's medically 17 determinable impairments could reasonably be expected to 18 produce the alleged symptoms, which the Administrative Law 19 Judge concluded yes in this case. 20 And secondly, must then evaluate both the intensity 21 and persistence of those symptoms and the extent to which 22 they limit the claimant's ability to perform work-related 23 activities. Social Security Ruling 16-3p. Notably, the 24 ALJ's assessment of subjective reports are considered and 25 entitled to considerable deference by a reviewing court. 1 Shari L. v. Kijakazi, 2022 WL 561563, Northern District of 2 New York, February 24, 2022. And Aponte versus Secretary of 3 Department of Health and Human Services of the United States, 4 728 F.2d 588, Second Circuit, 584. 5 In this case when read as a whole, I believe the 6 Administrative Law Judge properly explained his reasoning in 7 not finding that the symptoms that were testified to by the 8 plaintiff were as severe as stated. There were nonparty 9 statements that were considered in making this decision, as 10 stated at page 16 of the Administrative Transcript. The 11 Administrative Law Judge considered the medical opinions of 12 record, the treatment records, plaintiff's activities of 13 daily living. I find no error in the assessment of those 14 claims. 15 In terms of depression, there was an argument made 16 that depression should have been considered as an impairment. 17 At step two, it was plaintiff's burden to establish that the 18 condition imposed significant limitations on her ability to 19 perform basic work activities. Noteworthy is that 20 Dr. Sherer, page 137, Dr. Noia at 1413, did not diagnosis 21 plaintiff as suffering from depression. But in any event, if 22 it was error, it was harmless because he went on to step 23 three and specifically stated that he considered all of 24 plaintiff's impairments even though it was found not to be 25 severe. That's at page 14. 1 The last argument relates to new evidence. There 2 was evidence presented both to the Social Security 3 Administration Appeals Council that was from Rochester 4 Regional Health dated February 7, 2023 to March 23, 2023. It 5 was rejected at page 2 of the Administrative Transcript based 6 upon the finding that it did not relate to the period at 7 issue, and therefore, did not affect the decision about 8 disability prior to beginning on or about December 15, 2022. 9 The Social Security regulations are specially 10 authorized to submit material evidence to Appeals Council 11 when requesting review. 20 CFR Section 404.970(b). In order 12 to merit review, however, additional evidence must be new, 13 material, and related to the period on or before the date of 14 the hearing decision, and must also present a reasonable 15 probability that such additional evidence would change the 16 outcome of the decision. 20 CFR Section 404.970(a)(5). 17 In this case I agree that the evidence does not 18 relate to the period at issue, or, in any event, plaintiff 19 failed to elaborate why that determination was erroneous, and 20 more specifically failed to show how it would have provided a 21 reasonable -- presented a reasonable probability that the 22 additional evidence would have changed the outcome of the 23 decision. I have reviewed it. It was largely repetitive of 24 the evidence that was in the record at the time of the 25 decision and does not reveal anything in my view that would 1 alter the equation to a significant degree. 2 So, in sum, I believe that the Administrative Law 3 Judge's decision permits meaningful judicial review, correct 4 legal principles were applied, resulting in a determination 5 supported by substantial evidence. I will grant judgment on 6 the pleadings to the defendant and order dismissal of 7 plaintiff's complaint. 8 Thank you both. I hope you have a good afternoon 9 and a happy Thanksgiving. 10 MR. HASSELER: Thank you, your Honor. 11 MR. PETERS: Thank you, your Honor. 12 * * * 13 14 15 16 17 18 19 20 21 22 23 24 25 Decision - 23-cv-1579 - 11/21/2024 20

1 2 CERTIFICATION 3 4 I, EILEEN MCDONOUGH, RPR, CRR, Federal Official 5 Realtime Court Reporter, in and for the United States 6 District Court for the Northern District of New York, 7 do hereby certify that pursuant to Section 753, Title 28, 8 United States Code, that the foregoing is a true and correct 9 transcript of the stenographically reported proceedings held 10 in the above-entitled matter and that the transcript page il format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 15 16 Leen MeDoneugh 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 18 19 20 21 22 23 24 25