Rogofsky v. Commissioner of the Social Security Administration

• Court: District Court, N.D. New York
• Decided: September 25, 2025
• Docket: 5:24-cv-00519
• Status: Unknown

Opinion

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

CHRISTOPHER J. R.,

Plaintiff, v. Civil Action No. 5:24-CV-519 (DEP)

COMMISSIONER OF SOCIAL SECURITY ADMINISTRATION,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

DENNIS KENNY LAW JOSEPHINE GOTTESMAN, ESQ. 228 North Plank Road Newburgh, NY 12550

FOR DEFENDANT

SOCIAL SECURITY ADMIN. MOLLY CARTER, 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

September 10, 2025, 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: September 25, 2025 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------x CHRISTOPHER J.R.,

Plaintiff,

vs. 5:24-cv-519

Commissioner of Social Security,

Defendant. ------------------------------------------------x DECISION held on September 10, 2025 the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: DENNIS KENNY LAW 288 North Plank Road Newburgh, NY 12550 BY: JOSEPHINE GOTTESMAN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 6401 Security Boulevard Baltimore, MD 21235 BY: MOLLY CARTER, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Before I address the merits of the 2 case, I wanted to broach the subject of consent. When the 3 case was originally filed, it was assigned to another 4 magistrate judge. The consent form that was filed dated 5 April 12, 2024, docket number 6, presumably consented to the 6 jurisdiction of that particular magistrate judge to hear and 7 decide the case, although the blank that is there for the 8 name of the specific magistrate judge is not filled in. 9 Attorney Gottesman, does the plaintiff consent to 10 my hearing and deciding the case with direct appeal to the 11 Second Circuit Court of Appeals? 12 MS. GOTTESMAN: We consent, your Honor. 13 THE COURT: Thank you. 14 Plaintiff has commenced this proceeding pursuant to 15 42, United States Code, Section 405(g) to challenge an 16 adverse determination by the Commissioner of Social Security 17 finding that he was not disabled at the relevant times and 18 is, therefore, not eligible for the disability insurance 19 benefits for which he applied. The background is as follows. 20 Plaintiff was born in January of 1971. He is 21 currently 54 years of age. He was 49 years old -- counsel, 22 can you mute your phones, please? 23 MS. GOTTESMAN: I'm sorry, your Honor, I didn't get 24 that. 25 THE COURT: Can you mute your phone? 1 MS. GOTTESMAN: Yes, I can. 2 THE COURT: Thank you. Plaintiff was 49 years old 3 at the alleged onset of disability on October 4, 2020. He is 4 6-feet 2-inches in height. He weighs 290 pounds 5 approximately. By body mass index he would be characterized 6 as obese, although as the administrative law judge pointed 7 out, he has been described as fairly muscular. 8 Plaintiff has a high school degree and one year of 9 college education. While in school he was in regular 10 classes. He also holds a license, or did, as a licensed 11 practical nurse. He served in the Marines from 1989 to 1993 12 and was honorably discharged. Plaintiff drives but does not 13 take public transportation. 14 Plaintiff worked from June of 1998 until 15 October 2020 as a corrections worker achieving ultimately the 16 rank of lieutenant. According to the Administrative 17 Transcript, he primarily quit for psychological reasons. 18 That's at page 120 and 644 of the Administrative Transcript. 19 He also had some brief sporadic employment in 2013 in an 20 adult home overseeing medications as he was contemplating a 21 change in careers at that point. 22 Physically, plaintiff suffers from lumbar and 23 cervical degenerative disc disease; right shoulder pain post 24 surgery, which was performed in 2021; right elbow pain post 25 debridement surgery in 2015; right knee pain; left shoulder 1 pain; sleep apnea; hypertension; and high cholesterol. 2 Mentally, he suffers from depressive disorder, 3 affective disorder, and post traumatic stress disorder. For 4 his mental condition, he receives monthly treatment at the VA 5 but has not been psychologically hospitalized. 6 Plaintiff's activities of daily living are set 7 forth in many locations in the record, including at 8 Administrative Transcript pages 329, 645 and 651. Plaintiff 9 is able to shower and/or bathe, groom, dress, shop weekly. 10 He engages in meal preparation. He can do laundry. He can 11 clean. He watches television. He listens to music. He 12 reads, and he spends time with family. By the way, I forgot 13 to mention that he does live alone in an apartment in Auburn, 14 New York. 15 At page 407, a treatment note from October 3, 2020 16 described plaintiff as very active, exercising almost daily 17 with both cardio and weight training. On October 21, 2021, 18 at page 1048, he noted that he was remodeling a house. On 19 January 18, 2022, that's at page 1248, again noted to a 20 treatment provider he was remodeling a house. On August 5, 21 2021, this is at 1386 of the Administrative Transcript, he 22 went to a clinic where he stated that he injured his eye when 23 he was engaged in construction without eye protection, 24 although he has later claimed that he was not doing 25 construction, he was merely there for cellulitis. Plaintiff 1 is a smoker. He smokes one pack of cigarettes per day. 2 On February 19, procedurally, 2021, he applied for 3 Title II benefits, alleging an onset date of October 4, 2020. 4 At page 302 he claimed disability based on post traumatic 5 stress disorder, depression, anxiety, high blood pressure, 6 high cholesterol, bilateral shoulder injury, right elbow 7 injury, back injury and neck injury. 8 On June 30, 2021, a hearing was conducted by 9 Administrative Law Judge Sarah Zimmerman with a vocational 10 expert testifying at that hearing. On July 17, 2023, after 11 apparently the matter was transferred, Administrative Law 12 Judge Aaron Morgan issued an unfavorable decision, which 13 became a final determination of the Agency on February 15, 14 2024, when the Social Security Administration Appeals Council 15 denied plaintiff's application for review. This action was 16 commenced on April 12, 2024, and is timely. 17 In his decision, ALJ Morgan applied the familiar 18 five-step sequential test for determining disability. He 19 first noted that plaintiff is insured through December 31, 20 2025. 21 At step one ALJ Morgan concluded plaintiff had not 22 engaged in substantial gainful activity since the alleged 23 onset of his disability. 24 At step two, he found that plaintiff does suffer 25 from severe impairments that impose more than minimum 1 limitations on his ability to perform basic work functions, 2 including degenerative disc disease of the cervical spine and 3 the lumbar spine, hypertension, status post right shoulder 4 surgery, and mental impairments variously characterized as 5 affective disorder, post traumatic stress disorder, and 6 anxiety disorder. 7 At step three, he concluded that plaintiff's 8 conditions do not meet or equal any of the listed 9 presumptively disabling conditions set forth in the 10 Commissioner's regulations, specifically considering listings 11 1.15, 1.16, 1.18, 12.04, 12.06 and 12.15. 12 The administrative law judge next concluded that, 13 notwithstanding his impairments, plaintiff retains the 14 residual functional capacity, or RFC, to perform light work 15 as defined in the regulations with the following exceptions. 16 He can frequently reach in either direction with right upper 17 extremity. He can occasionally climb ramps, stairs and 18 ladders. He cannot climb ropes or scaffolds. He can 19 occasionally balance, stoop, kneel, crouch, and crawl. He 20 cannot perform work around dangerous machinery or hazardous 21 heights. He can tolerate occasional changes in the work 22 setting. 23 Applying that RFC at step four, the ALJ concluded 24 that plaintiff is not capable of performing his past relevant 25 work, and then proceeded to step five. 1 At step five, with the assistance of a vocational 2 expert, who was presented with a hypothetical question that 3 was based on the RFC finding, the administrative law judge 4 concluded that plaintiff is capable of performing available 5 work in the national economy, citing as representatives of 6 those positions those of warehouse checker, order caller and 7 collator operator. 8 The Court's function, as the parties know, in this 9 case is extremely limited. I must determine whether correct 10 legal principles were applied and the resulting determination 11 is supported by substantial evidence. The court has noted 12 the rigor of this standard in several decisions, including in 13 Brault versus Social Security Administration Commissioner, 14 683 F.3d 443, from 2012; and Schillo v. Kijakazi, 31 F.4th 15 64, Second Circuit 2022. As the Second Circuit noted, the 16 substantial evidence standard means that once an ALJ finds a 17 fact, it can be rejected only if a reasonable fact-finder 18 would have to conclude otherwise. 19 The plaintiff in this case raises three 20 contentions. One, he believes it was error to exclude 21 records submitted on June 14, 2022. Secondly, he argues that 22 the residual functional capacity finding is not supported, 23 specifically concluding or arguing that reliance on prior 24 administrative medical findings was error and that the ALJ 25 cherrypicked from plaintiff's treatment records. And 1 thirdly, he argues an error in step five claiming that 2 plaintiff cannot meet the requirements of jobs cited, relying 3 on the Occupational Outlook Handbook, or the OOH, and the 4 O*NET. 5 Turning first to the five-day rule, I went through 6 the timeline of notice to the plaintiff of the five-day rule. 7 I note first that counsel was retained by the plaintiff in 8 February of 2021. That appears at 397 to 400 of the 9 Administrative Transcript. On April 17, 2021, a letter was 10 sent to the claimant by the Agency advising of the five-day 11 rule. That's at 231 to 233. According to notes in the 12 record, specifically at page 404, voice-mails were left on 13 December 10, 2021 and January 11, 2022 requesting additional 14 records. On April 4, 2022 two notices of hearing were sent 15 and those notices included advice concerning the five-day 16 rule. Those appear at 248 to 257 of the Administrative 17 Transcript. On April 6, 2022, at page 184, plaintiff 18 acknowledged receipt of those notices. 19 On June 16, 2022, plaintiff submitted a brief. In 20 that brief there was no mention of any records that were 21 missing and needed to be submitted. On June 30, 2022 a 22 hearing was conducted. Counsel advised that there was no 23 objection to documents in the record. That's at 112. The 24 administrative law judge advised the parties that additional 25 submissions were due by July 8, 2022. That's at 114 and 1 reiterated at 131. 2 The efforts to obtain the additional VA records I 3 looked at as well. In the brief, plaintiff claims that the 4 first request was made on April 27, 2022. There is no other 5 evidence in the record to support that assertion. The VA on 6 June 23, 2022 received a request for information from the 7 plaintiff. And that's at page 36. On July 8, 2022 the VA 8 printed the records and forwarded them to plaintiff's 9 counsel. The records were submitted on July 14, 2022. That 10 is the chronology that the administrative law judge was faced 11 with. 12 As the Commissioner has argued, the standard to be 13 applied in this situation, the procedural situation where no 14 findings were made, is abuse of discretion. Yancey v. Apfel, 15 145 F.3d 106, from the Second Circuit 1998. The five-day 16 rule is set out in the Commissioner's regulations, 17 specifically at 20 CFR Section 404.935. It states, "Each 18 party must make every effort to ensure that the 19 administrative law judge receives all of the evidence and 20 must inform us about or submit any written evidence, as 21 required in Section 404.1512, no later than five business 22 days before the date of the scheduled hearing." Subsection 23 (b) of that regulation sets out exceptions. The only one of 24 those exceptions that would appear to apply in this case is 25 the fourth one, which states, "You actively and diligently 1 sought evidence from a source and the evidence was not 2 received or was received less than five business days prior 3 to the hearing." As can be seen, it requires active and 4 diligent effort to secure the evidence. Here there is no 5 explanation that was offered when the records were submitted 6 for the late submission. In short, I find no abuse of 7 discretion given the chronology that I just mentioned. 8 I also note that plaintiff does not indicate how 9 the additional evidence would have altered the outcome. I've 10 reviewed the additional evidence. The new evidence contains 11 69 pages covering the period from August 18, 2021 to June 14, 12 2022. Exhibit 13F, which is in the record, is comprised of 13 87 pages covering the period from August 24, 2018 to 14 January 18, 2022. For the most part there is complete 15 overlap. I did find starting at page 55 through I think 57 16 records in the new evidence submitted that were not included 17 in 13F and they all appear, those additional pages appear to 18 address plaintiff's sleep apnea. So even if there was error, 19 I find that it was harmless. I don't find anything in the 20 new evidence that would have altered or likely altered the 21 result. 22 Turning to the residual functional capacity 23 assessment, a claimant's RFC represents a finding of the 24 range of tasks he is capable of performing notwithstanding 25 his impairments. 20 CFR Section 404.1545(a). Tankisi versus 1 Commissioner of Social Security, 521 F.App'x 29, at 33, 2 Second Circuit 2013. That means a claimant's maximum ability 3 to perform sustained work activities in an ordinary setting 4 on a regular and continuing basis, meaning eight hours a day 5 for five days a week or an equivalent schedule. And of 6 course, an RFC determination is informed by consideration of 7 all of the evidence in the record, including relevant medical 8 and other evidence. 9 In this case the administrative law judge 10 determined that plaintiff has the residual functional 11 capacity that I read earlier. The ALJ specifically stated he 12 relied on medical opinions. When evaluating medical 13 opinions, because this case involved an application filed 14 after March 27, 2017, under the revised regulations the 15 Commissioner does not any longer defer to or give any 16 specific evidentiary weight, including controlling weight, to 17 any medical opinions. Instead, the ALJ must consider whether 18 those opinions are persuasive by primarily considering 19 whether they are supported by and consistent with the record 20 in the case. 20 CFR Section 404.1520(c). And, of course, 21 the ALJ must articulate how persuasive he or she finds all 22 medical opinions that explain the consideration of 23 supportability and consistency to a degree that would permit 24 meaningful judicial review. 25 It is for the administrative law judge in the first 1 instance to weigh conflicting opinions. Veino v. Barnhart, 2 312 F.3d 578, Second Circuit 2002. 3 In this case the physical component of the RFC was 4 light work with some additional limitations. Light work 5 involves lifting no more than 20 pounds at a time with 6 frequent lifting or carrying of objects weighing up to 7 10 pounds. Also 20 CFR Section 404.1567(b), as well as SSR 8 83-10. The Second Circuit has noted in Poupore v. Astrue, 9 566 F.3d 303, Second Circuit 2009, that it also requires the 10 plaintiff to be able to stand and/or walk for six hours in an 11 eight-hour day and can sit intermittently the remainder of 12 the day. 13 As I indicated during oral argument, although 14 plaintiff's counsel argues that he is incapable of lifting 15 and carrying 20 pounds, his treating source SOS, or Syracuse 16 Orthopedic Specialists, and specifically Dr. Warren Wulff, 17 has indicated that he is capable of lifting 20 pounds. That 18 is at page 447. It is also reiterated at page 440. And 19 interestingly, on page 534, there is an indication that the 20 percentage of temporary impairment is zero percent. 21 Mentally, the ALJ relied on prior administrative 22 medical findings of Drs. Sherer and Ochoa, and consultative 23 examiner Dr. Dennis Noia. I note that contrary to the 24 argument of counsel, prior administrative medical findings 25 can provide substantial evidence if they are supported. 1 Valdes-Ocasio v. Kijakazi, 2023 WL 3573761, Second Circuit, 2 May 22, 2023. Also Woytowicz v. Commissioner of Social 3 Security, 2016 WL 6427787, Northern District of New York, 4 October 5, 2016. That was a report and recommendation that 5 was adopted at 2016 WL 6426385, October 28, 2016. 6 Plaintiff, in arguing otherwise, relies on Lewis v. 7 Colvin, 122 F.Supp.3d, from the Northern District of New 8 York, District Judge David Hurd, dated August 21, 2015. That 9 was a very different case, however. That case was decided 10 under the treating source rule and Judge Hurd noted that 11 great weight should not be accorded to the opinion of a 12 non-examining state agency consultant whose opinion is based 13 on an incomplete record and lacks the opinion of the 14 plaintiff's primary treating psychiatrist. In this case the 15 prior administrative findings contained narratives that are 16 very detailed, and as I indicated before, they can supply 17 substantial evidence. 18 Dr. Noia's medical source statement is supported by 19 his findings during the consultative examination. There 20 really isn't any contrary medical opinion concerning 21 plaintiff's mental abilities, so I find no error with respect 22 to the mental component of the RFC. 23 Physically, the administrative law judge found the 24 two prior administrative findings of Drs. Mohanty and 25 Vazquez-Gonalez to be the most persuasive. Dr. Lorensen's 1 was partially persuasive, that was the consultative examiner, 2 but there were some findings that were not incorporated into 3 the RFC and the ALJ explained at page 27 why that was, so I 4 find no error there. 5 The plaintiff doesn't appear to challenge the 6 consistency of supportability directly, and that argument is 7 waived. But in any event, the discussion of those medical 8 opinions is sufficiently robust to permit meaningful judicial 9 review, so I find no error and that the substantial evidence 10 supports the RFC finding. 11 Turning to step five, clearly it is the 12 Commissioner's burden at step five to prove that there is 13 work available in the national economy that plaintiff is 14 capable of performing. Vocational expert testimony was 15 elicited at page 29 based on a hypothetical that tracked the 16 RFC. The administrative law judge concluded based on that 17 testimony that plaintiff could perform as a warehouse 18 checker, order caller and collator operator. It is proper to 19 seek and base a determination on vocational expert testimony 20 concerning the availability of jobs that a plaintiff can 21 perform if substantial evidence supports the hypothetical, 22 which I find it does, Rebecca A.H. v. Commissioner of Social 23 Security, 2024 WL 5497139, December 10, 2024, from the 24 Northern District of New York. 25 Plaintiff argues that it was improper to rely on 1 the Dictionary of Occupational Titles, or DOT, which contain 2 some jobs that are obsolete, and argues that the O*NET is a 3 superior resource. The regulations are clear and the case 4 law is clear the vocational expert testimony must comply with 5 the DOT. Ryan v. Astrue, 650 F.Supp.2d 207, Northern 6 District of New York 2009. 7 In this case the administrative law judge asked at 8 page 128 if the testimony of the vocational expert was in 9 conflict with the DOT, and the reply was that it was not. 10 Courts in this circuit continue to uphold reliance on the DOT 11 to the exclusion of the O*NET. Nicoletti v. Commissioner of 12 the Social Security Administration, 2022 WL 6250371, from the 13 Southern District of New York, February 28, 2022; Strong v. 14 Berryhill, 2019 WL 2442147, Western District of New York, 15 June 12, 2019; and Rebecca A.H., which I cited earlier, and I 16 note that plaintiff's counsel in this case was also the 17 attorney for the plaintiff in that case. 18 I also went through carefully the plaintiff's brief 19 concerning this point, and I didn't see any aspects of the 20 job as described by the O*NET that plaintiff cannot fulfill. 21 In any event, I don't find there was any error. I can see 22 that the DOT is starting to show its age and there may be an 23 argument to be made that some of the jobs are somewhat 24 obsolete, but the number cited by the vocational expert are 25 so extensive and far exceed the number required to carry the 1 burden at step five that I find no error. 2 So, in conclusion, I find that correct principles 3 were applied, and substantial evidence supports the resulting 4 determination, and so I'll grant judgment on the pleadings to 5 the defendant affirming the Commissioner's determination and 6 dismissing plaintiff's complaint. 7 Thank you both for excellent presentations. I hope 8 you enjoy the rest of your day. 9 * * * 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 17

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 11 format is in conformance with the regulations of the 12 Judicial Conference of the United States. 13 14 15 16 Xeon MeDenergh 17 EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter 18 19 20 21 22 23 24 25