Rucker v. Kijakazi

Opinion

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

JESSICA R.,

Plaintiff, v. Civil Action No. 3:19-CV-1344 (DEP)

ANDREW SAUL, Commissioner of Social Security,

Defendant.

__________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LACHMAN & GORTON LAW FIRM PETER A. GORTON, ESQ. 1500 East Main St. P.O. Box 89 Endicott, NY 13761-0089

FOR DEFENDANT

HON. ANTOINETTE L. BACON DANIEL TARABELLI, 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 Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C.

§§ 405(g) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on February 24, 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

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. GRANTED. 2) |The Commissioner’s determination that the plaintiff was not disabled at the relevant times, and thus is not entitled to benefits under the Social Security Act, is AFFIRMED. 3) The clerk is respectfully directed to enter judgment, based

upon this determination, DISMISSING plaintiff's complaint in its entirety.

U.S. Magistrate Judge Dated: March 2, 2021 Syracuse, NY

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

Plaintiff,

vs. 3:19-CV-1344

ANDREW SAUL, Commissioner of Social Security, Defendant. -------------------------------------------------------x DECISION held on February 24, 2021 before the HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: LACHMAN, GORTON LAW FIRM Attorneys at Law 1500 East Main Street Endicott, NY 13761 BY: PETER A. GORTON, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION Office of Regional General Counsel 15 Sudbury Street Boston, MA 02203 BY: DANIEL STICE TARABELLI, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 1 THE COURT: Let me begin by thanking both counsel 2 for excellent presentations. I enjoyed working with you. 3 Plaintiff has commenced this proceeding pursuant to 4 42, United States Code, Sections 405(g) and 1383(c)(3) to 5 challenge an adverse determination by the Commissioner of 6 Social Security. 7 The background is as follows. Plaintiff was born 8 in July of 1991. She is currently 29 years of age. She was 9 25 years old at the time of the alleged onset -- or, the 10 amended alleged onset date of August 1, 2016. Plaintiff 11 stands approximately 5-foot 2-inches in height, and has 12 weighed between 245 and 250 pounds at various points. 13 Plaintiff is single and has no children. She lives in 14 Binghamton in an apartment with her mother. Plaintiff is 15 right-handed. She has no driver's license. 16 Plaintiff has a high school education. She 17 received an IEP diploma and was in special education classes 18 where she was classified apparently as learning disabled. 19 She also attended two semesters at Broome Community College. 20 She did receive some accommodations due to her psychological 21 conditions at the college, and ultimately stopped going or 22 attending out of frustration. Plaintiff also participated in 23 a Catholic Charities Work Training Program. 24 Plaintiff stopped working in August of 2015 while 25 she was undergoing work training in a cafe. Her past work 1 includes as a cashier in various settings, a cleaner, and an 2 overnight stocker. The Administrative Law Judge concluded 3 that none of those positions constituted substantial gainful 4 activity. 5 Plaintiff physically suffers from a lower back 6 issue, obesity, and hypertension. The hypertension appears 7 to be medically controlled. In terms of her back, an X-ray 8 from August 12, 2016, that appears at 390 of the 9 Administrative Transcript, showed moderate degenerative 10 spondylosis, meaning disc space narrowing and osteophyte 11 formation, at L1-L2, but no compression fracture. The 12 impression is listed as, quote, "degenerative changes." 13 The plaintiff suffers from mental impairments that 14 have been variously described, and including as low 15 borderline intellectual functioning. Testing at one point 16 revealed a full scale IQ of 70. Bipolar disorder, borderline 17 personality disorder, schizo-affective disorder, adjustment 18 disorder with depressed mood. She has a history of cutting, 19 suicide attempts and ideation, homicidal ideation, auditory 20 hallucination, paranoid delusions. 21 She treats primarily with UHS Primary Care where 22 she sees Physician Assistant Erica Hill and has since March 23 of 2016. She has treated with Dr. Sobia Mirza, a 24 psychiatrist, who she sees one time per month and has for 25 roughly four years, as well as LMSW Megan Hagerbaumer, who 1 she also sees approximately one time per month and has for 2 four years. 3 As plaintiff's counsel pointed out, the record 4 reveals several hospitalizations for psychiatric conditions, 5 including October 13, 2014 to November 1, 2014, that's at 354 6 of the Administrative Transcript. There is reference to 7 December 2, 2014 at 354 to 356. April 25, 2016 to April 29, 8 2016, she was hospitalized, that's at 336 and 635, for 9 cutting her wrist. She had been drinking and engaged in a 10 family argument which appears to have precipitated that 11 hospitalization. She was hospitalized between June 28 and 12 June 30, 2016. That's at 402 to 404, 333 to 336, and 635 of 13 the Administrative Transcript. That was precipitated by 14 suicidal thoughts brought on because her ex-boyfriend moved 15 into the same apartment complex that she was living in with a 16 new girlfriend. There were also hospitalizations in March of 17 2017 for suicidal thoughts. That's at 400 and 635. She was 18 apparently sent to the hospital by her psychiatrist. She was 19 hospitalized in April, late April to early May of 2017, 20 that's at 398 and 638, with auditory hallucinations and 21 persecutory delusions. Again hospitalized in January 2019 22 with suicidal and homicidal thoughts and depression. 23 Apparently that was precipitated by an argument with 24 plaintiff's aunt. 25 Plaintiff has been prescribed several medications, 1 including Citalopram, Metoprolol, Trazodone, Mirtazapine, 2 Olanzapine, Ibuprofen, Tylenol, Remeron, Celexa, Latuda, and 3 a muscle relaxant. 4 In terms of activities of daily living, plaintiff 5 is able to shower, dress, shop with her mother. She does 6 some walking. She does some laundry. She does -- I'm sorry, 7 some cooking, not walking; I can't read my own notes. Some 8 laundry. She cleans, sweeps, mops, vacuums, takes out the 9 garbage, watches television, listens to music. She smokes 10 approximately two cigarettes per day. 11 Procedurally, plaintiff applied for Title II and 12 Title XVI benefits on June 14, 2016, alleging an onset date 13 of January 1, 2013. The onset date was later amended on 14 advice of counsel or with advice of counsel to August 1, 15 2016, which took out of play the Title II application, 16 leaving only the Supplemental Security Income, or SSI, 17 application. 18 A hearing was conducted on October 10, 2018, by 19 Administrative Law Judge Elizabeth Koennecke. A supplemental 20 hearing with a vocational expert was conducted on March 11, 21 2019. ALJ Koennecke issued a decision on March 19, 2019, 22 that was adverse to the plaintiff. That became a final 23 determination of the Agency on September 17, 2019, when the 24 Social Security Administration Appeals Council denied 25 plaintiff's request for review. 1 This action was commenced on October 31, 2019. The 2 Commissioner does not argue that it is untimely, and it 3 appears to the Court that it is, in fact, timely. 4 In her decision, ALJ Koennecke applied the familiar 5 five-step sequential test for determining disability. 6 She found that plaintiff had not engaged in 7 substantial gainful activity since August 1, 2016. 8 At step two, ALJ Koennecke concluded that plaintiff 9 does suffer from mental impairments that have been variously 10 characterized, and she does not specify precisely what 11 impairments she is considering, although she does state that 12 plaintiff claims disability due to depression, learning 13 disability, schizophrenia, personality disorder, and bipolar 14 disorder in terms of the mental impairments. 15 At step three, ALJ Koennecke concluded that 16 plaintiff's conditions do not meet or medically equal any of 17 the listed presumptively disabling conditions set forth in 18 the Commissioner's regulations, specifically considering 19 listings 12.03, 12.04, 12.06 and 12.08, all of which address 20 mental impairments or psychological impairments. The 21 conclusion was that the B criteria and the C criteria of 22 those regulations were not met. She also considered listing 23 12.04 and found a low IQ, but no diminishment or deficits in 24 adaptive functioning. 25 At the next stage, ALJ Koennecke concluded that 1 plaintiff is capable of performing a full range of work at 2 all exertional levels, with the following limitations 3 addressing her mental or psychological impairments. The 4 claimant has the very basic capacity to read, spell, or 5 perform mathematical calculations. The claimant retains the 6 ability to: Understand and follow simple instructions and 7 directions; perform simple tasks independently; maintain 8 attention and concentration for simple tasks; regularly 9 attend to a routine and maintain a schedule; handle simple, 10 repetitive work-related stress in that she can make 11 occasional decisions directly related to the performance of 12 simple tasks in a position with consistent job duties that 13 does not require the claimant to supervise or manage the work 14 of others; should avoid work requiring more complex 15 interaction or joint effort to achieve work goals, for 16 example, work performed alone except for normal supervision; 17 can have no contact with the public. 18 At step four, Administrative Law Judge Koennecke 19 concluded that plaintiff does not have any past relevant work 20 to consider, and thus proceeded to step five. 21 With the assistance of testimony from a vocational 22 expert, who was given a hypothetical that parallelled the 23 residual functional capacity finding, the Administrative Law 24 Judge concluded that plaintiff is capable of performing 25 available work in the national economy, and cited 1 representative occupations of hand packager, laundry worker, 2 and industrial cleaner, and thus concluded that plaintiff was 3 not disabled at the relevant times. 4 The standard of review, as the Commissioner has 5 argued, in this case is extremely deferential. My job is to 6 determine whether correct legal principles were applied and 7 that the resulting determination is supported by substantial 8 evidence. Substantial evidence, of course, is defined as 9 such relevant evidence as a reasonable mind would consider 10 sufficient to support a conclusion or finding. The Second 11 Circuit Court of Appeals in Brault versus Social Security 12 Administration Commissioner, 683 F.3d 443, noted that the 13 test is extremely stringent, more so than the clearly 14 erroneous standard that lawyers are familiar with. The Court 15 noted in Brault that under this standard once an ALJ finds 16 facts, those facts can be rejected only if a reasonable 17 fact-finder would have to conclude otherwise. 18 The plaintiff in this case raises two basic 19 contentions, both of which affect the step five 20 determination, because if accepted, the errors would result 21 in a finding that the hypothetical posed to the vocational 22 expert was flawed. The first relates to the failure to find 23 a physical impairment at step two focusing on plaintiff's 24 lumbar back condition. The second attacks the residual 25 functional capacity finding and the weighing of medical 1 opinions in the record. 2 Turning first to the step two determination, the 3 focus is on Dr. Jenouri's report, which appears at 386 to 389 4 of the Administrative Transcript, as well as the X-ray taken 5 on August 12, 2016. That is reported at page 390. 6 Undoubtedly and undeniably the second step of the sequential 7 analysis is a modest step and a modest hurdle to surpass. 8 The governing regulation provides that an impairment or 9 combination of impairments is not severe if it does not 10 significantly limit claimant's physical or mental ability to 11 do basic work activities; 20 CFR Section 404.1521(a), and 12 there is a corresponding regulation in the Section 416 13 series. 14 The Second Circuit requirement is de minimis and 15 intended only to screen out the truly weakest of cases; Dixon 16 versus Shalala, 54 F.3d 1019 (2nd Cir. 1995). However, the 17 mere presence of a disease or impairment, or establishing 18 that a person has been diagnosed or treated for disease or 19 impairment, is not by itself sufficient to establish a 20 condition as severe; Coleman versus Shalala, 895 F.Supp. 50 21 (S.D.N.Y. 1995). 22 The Administrative Law Judge rejected the 23 plaintiff's back injury as severe at page 18 and discussed 24 why. The first question is, assuming that there is error at 25 step two, would the error be harmless. Dr. Jenouri in his 1 opinion at page 389 found a moderate restriction in walking, 2 standing, sitting long periods, bending, stair climbing, 3 lifting, and carrying, which, of course, could have 4 potentially affect the residual functional capacity, but that 5 was given limited weight. There is no exertional limitation 6 in the RFC. 7 As plaintiff argues, the three jobs specified in 8 the Administrative Law Judge's determination are all in the 9 medium exertional range. Medium work involves lifting no 10 more than 50 pounds at a time with frequent lifting or 11 carrying of objects weighing up to 25 pounds. The regulation 12 goes on to state, "If someone can do medium work, we 13 determine that he or she can also do sedentary and light 14 work." 20 CFR Section 404.1567(c). 15 The plaintiff relies on Giddings for the 16 proposition that -- Giddings versus Astrue, 333 F.App'x 649, 17 (2d Cir. 2009), for the proposition that Dr. Jenouri's 18 opinion, which stands uncontradicted by any other medical 19 opinion that would support the RFC, cannot be overridden 20 unless there is overwhelmingly compelling reasoning given. I 21 note that the Commissioner in this and several other cases 22 has asked the Court to declare that the Second Circuit's 23 overwhelmingly compelling reasoning standard has been 24 abrogated, but I respectfully decline that invitation and 25 note that as recently as 2020 the Second Circuit was still 1 using that standard. 2 The defendant relies on Pellam; Pellam versus 3 Astrue, 508 F.App'x 87 (2d Cir. 2013). That case is somewhat 4 distinguishable, though, because while the consultative 5 examiner's opinion was rejected in that case, the RFC finding 6 was actually consistent with the opinion. 7 As I indicated, the Administrative Law Judge at 18 8 and 19 gave Dr. Jenouri's opinion limited weight. The 9 reasoning cited includes the fact that there was no 10 compression fracture revealed in the X-ray, there was 11 extremely conservative treatment demonstrated in the record. 12 Plaintiff treated her back condition with over-the-counter 13 medications, including Tylenol, Ibuprofen, and muscle 14 relaxers. She in many instances described her pain as zero 15 on a scale of zero to ten, including at 435, 440, 445, 456, 16 467, and 624 of the Administrative Transcript. She also 17 described at page 370 her condition, back condition is stable 18 without radiation. She also apparently has engaged walking 19 and exercises. 20 So in terms of the step two argument, I find that 21 the reasoning cited by Administrative Law Judge Koennecke 22 meets the overwhelmingly compelling standard for discounting 23 Dr. Jenouri's opinion. 24 Turning to the second argument, the argument first 25 surrounds the residual functional capacity finding of the 1 Administrative Law Judge. Claimant's RFC represents the 2 finding of the range of tasks she is capable of performing 3 notwithstanding the impairments at issue; 20 CFR Section 4 416.945(a). An RFC determination is informed by 5 consideration of all of the relevant medical and other 6 evidence. The ascertaining of an RFC details both assessment 7 of exertional capabilities as well as non-exertional 8 limitations or impairments. And, of course, any RFC 9 determination must be supported by substantial evidence. 10 When it comes to weighing medical opinions, there 11 is also an overarching consideration that the weighing of 12 conflicting opinions in the first instance is a matter 13 entrusted to an Administrative Law Judge, under Veino versus 14 Barnhart, 312 F.3d 578, 588 (2d Cir. 2002). The mental and 15 cognitive issues are what is front and center in this case. 16 The weight to be given to medical opinions under the former 17 regulations governing applications filed prior to March of 18 2017 is addressed at 20 CFR Section 416.927(c). 19 The first opinion at issue is by Dr. Sobia Mirza 20 from September 5, 2018. That appears at 595 and 596 of the 21 Administrative Transcript. The opinion reflects a marked 22 limitation in maintaining regular attendance without 23 interruptions from psychological bases symptoms. I think 24 that probably should be psychological based symptoms. Marked 25 is defined as, "There is a serious limitation in this area. 1 There is a substantial loss in the ability to effectively 2 function, the loss would be greater than 33 percent." There 3 is also medium limitation in Dr. Mirza's report in the fields 4 of maintaining attention and concentration, and ability to 5 interact appropriately with the general public. 6 The opinion of Dr. Mirza was addressed at page 21 7 of the Administrative Transcript and it was given limited 8 weight. The reasons cited include that it is based solely on 9 plaintiff's reports. There is no indication that plaintiff 10 was frequently absent from counseling, and therefore in the 11 Administrative Law Judge's view, that would translate into a 12 finding that she would also not likely be absent from work. 13 She also pointed out that Dr. Mirza was not able to fully 14 assess mental functioning, according to her own medical 15 source statement, and that it was not supported by objective 16 evidence, including the many denials by plaintiff of 17 psychological symptoms, psychiatric symptoms, and plaintiff's 18 statements that her symptoms were controlled with 19 medications. 20 The factors to be considered under the former 21 regulations, specifically Section 416.927, are well-known. 22 They are the so-called Burgess factors in the Second Circuit. 23 The Second Circuit has noted, however, in Estrella versus 24 Berryhill, 925 F.3d 90, from May of 2019, that the failure to 25 consider explicitly the Burgess factors is not necessarily 1 fatal if a searching review of the record assures that the 2 treating physician rule is not violated. 3 Of course, as plaintiff argues, Dr. Mirza appears 4 to qualify as a treating source, and ordinarily the opinion 5 of a treating source or treating physician or acceptable 6 medical source under the former regulations regarding the 7 nature and severity of an impairment is entitled to 8 considerable deference if it is supported by medically 9 acceptable clinical and laboratory diagnostic techniques and 10 is not inconsistent with other substantial evidence. Such 11 opinions are not, however, controlling if they're contrary to 12 other substantial evidence in the record, including the 13 opinions of other medical experts. 14 And, of course, as I previously noted, where there 15 are conflicts, the resolution is properly entrusted under 16 Veino to the Commissioner. If controlling weight is not 17 given to a treating source opinion, the Burgess factors must 18 be addressed and there must be an indication of what weight, 19 if any, is given to a medical source opinion. 20 In this case the form is a check-box form with no 21 explanation provided. I do note that defendant argues that 22 the reliance solely on the subjective complaints of a 23 plaintiff is not a proper basis to reject those opinions. 24 Those cases that are cited are Roma versus Astrue, 468 25 F.App'x 16, and Dailey versus Commissioner of Social 1 Security, 2016 WL 922261 (N.D.N.Y February 2016). 2 I might agree with that when it comes to a physical 3 impairment, but in terms of a mental impairment, it's fairly 4 clear that plaintiff's statements and the observations of 5 medical professionals are important to consider as plaintiff 6 has argued. Flynn versus Commissioner of Social Security 7 Administration, 729 F.App'x 119 (2018) supports that 8 conclusion, as well as Stacey versus Commissioner of Social 9 Security Administration, 799 F.App'x 7 (2020). 10 So I reject this part of the Commissioner's 11 argument. However, I do find that the reasoning of the 12 Administrative Law Judge for giving limited weight to 13 Dr. Mirza's opinion is explained sufficiently when you read 14 the decision as a whole, which goes through considerably the 15 treatment received. I find the reasoning is well set out and 16 a searching review of the record convinces the Court that the 17 treating source rule is not violated in connection with 18 Dr. Mirza's opinions. 19 The next opinion cited by the plaintiff is from 20 Counselor Hagerbaumer, and that was given on August 21, 2018. 21 It appears at 405 to 406 of the Administrative Transcript. 22 It is extremely unclear because on both pages the counselor 23 has drawn a line through the check-box areas and written, 24 quote, "unable to assess per clinic policy," but then she 25 goes ahead and finds extreme limitations in certain areas, 1 including accepting instructions and responding appropriately 2 to criticism from supervisors, getting along with co-workers, 3 ability to respond appropriately to ordinary stressors in a 4 work setting with simple tasks. 5 The counselor also notes sporadic suicidal ideation 6 and history of auditory hallucinations, but states that the 7 main issue is her inability to cope with her reactions caused 8 by external stressors. She also has a learning disability 9 which causes limitations in her daily functioning. To some 10 degree, as the Commissioner has noted, these limitations are 11 accommodated in the residual functional capacity finding. I 12 note that under the former regulations, the counselor is not 13 an acceptable medical source and her opinions are, therefore, 14 not subject to the treating source rule. 15 I agree that there seems to be a disparity between 16 the statement that she cannot assess and the finding that she 17 did, in fact, assess. But as I said, the concerns appear to 18 be the effect of stressors and her learning disability, and 19 as I said, those are accommodated in the residual functional 20 capacity. She is also limited in her interaction with 21 others, including the public and her supervisor, and those 22 are accommodated as well in the residual functional capacity 23 finding. So I find no error in consideration of this report. 24 The next report considering plaintiff's psychiatric 25 conditions is the report of consultative examiner, Dr. Sara 1 Long, a psychologist, and it appears at 392 to 396 of the 2 Administrative Transcript, and the results from a 3 consultative examination on August 16, 2016. The medical 4 source statement finds, "Mild to moderate limitations 5 regarding following and understanding simple directions and 6 performing simple tasks. She was able to maintain attention 7 and concentration. She appears able to maintain a regular 8 schedule. She is able to learn some new tasks. Regarding 9 complex tasks and making appropriate decisions, there appear 10 to be marked limitations. It is not clear that she is 11 relating adequately to others. Her psychiatric symptoms 12 might cause problems in this area. She presents with low 13 stress management." It goes on to say that, "The results of 14 the present evaluation appear to be consistent with 15 psychiatric history of substance abuse problems which appear 16 to interfere with her ability to function on a regular 17 basis." 18 The report of a consultative examiner such as 19 Dr. Long is entitled to weight and can provide substantial 20 evidence for a determination. The Administrative Law Judge 21 in this case afforded substantial weight, or significant 22 weight, I should say, to Dr. Long's opinions at pages 20 and 23 21 and also again discussed at page 22. The residual 24 functional capacity finding addressed many of the limitations 25 identified by Dr. Long, including judgment and relating to 1 others, and decision-making. As the Commissioner points out, 2 unskilled work requires little to no judgment; 20 CFR Section 3 416.968(a). The residual functional capacity finding once 4 again accounted for stress and the limitation on the 5 interaction. 6 So I find no error in the consideration of 7 Dr. Long's opinion, and I find that Dr. Long's opinion does 8 provide substantial weight to support the resulting 9 determination of the Commissioner. 10 The next decision considered or opinion considered 11 is that of Dr. S. Juriga, a psychologist. That appears at 12 Exhibit 3A. He is a non-examining state agency consultant. 13 His opinion was rendered in September of 2016. 14 He finds moderate limitation in several areas, 15 including ability to understand and remember detailed 16 instructions; the ability to carry out detailed instructions; 17 the ability to maintain attention and concentration for 18 extended periods; the ability to perform activities within a 19 schedule, maintain regular attendance, and be punctual within 20 customary tolerances; the ability to sustain an ordinary 21 routine without special supervision; the ability to perform 22 and to complete a normal workday and workweek without 23 interruptions; the ability to accept instructions and respond 24 appropriately to criticism from supervisors; and the ability 25 to get along with co-workers or peers without distracting 1 them or exhibiting behavioral extremes. 2 The summary of mental residual functional capacity 3 finding, which is what controls, appears 104 and 105 of the 4 opinion, and the summary is retains the ability to perform 5 entry level work, which, as the Commissioner has argued, 6 equates to simple unskilled work. It is true that there is 7 no explanation given in certain portions of the worksheet, 8 but the residual functional capacity is what controls once 9 again, and it's summary and conclusions support the residual 10 functional capacity. 11 Many of the moderate limitations are also accounted 12 for in the residual functional capacity. Granted, I would 13 like to see a more fulsome discussion in the residual 14 functional capacity finding, especially without explanation 15 or finding of certain of the moderately limited categories 16 set forth in the work sheet. But I find that it does 17 adequately address the residual functional capacity and 18 support the ability to perform unskilled entry level work, 19 which is the same; Tollison versus Colvin, 2013 WL 3367101, 20 from the Middle District of Tennessee, July 5, 2013, and 21 that's addressed at note 8. I find that the residual 22 functional capacity does pass muster. Carver versus Colvin, 23 600 F.App'x (10th Cir. 2015). It is well-accepted that a 24 non-examining consultative examiner's report can constitute 25 substantial evidence and overlie even a treating source if it 1 is properly supported. Netter versus Astrue, 272 F.App'x 54 2 (2d Cir. 2008). 3 As I indicated, it's well-accepted that moderate 4 limitations are not inconsistent with the ability to perform 5 unskilled work. Richard H., 2020 WL 467734, from the 6 Northern District of New York, January 29, 2020. And in that 7 case the proposition is said to be supported by Zabala v. 8 Astrue, 595 F.3d 402, 410 (2d Cir. 2010). Plaintiff relies 9 on the Program Operations Manual Systems, or POMS, to argue 10 that the worksheet is not sufficiently detailed in this case, 11 and, of course, the POMS are not binding either on the 12 Commissioner or the Court. One focus of the plaintiff is the 13 inability of her to apply for and be hired for a job. As the 14 Commissioner's argued, that is not dispositive; 20 CFR 15 416.966. 16 I do note that the ALJ did not rely solely on 17 Dr. Juriga for her residual functional capacity finding. She 18 considered Dr. Long's opinion, as well as the entire record, 19 which is generally supported by treatment notes discussed at 20 length at pages 22 and 23 of the Administrative Transcript. 21 It is true that Dr. Juriga's opinions come from 2016 and 22 predate some of the psychological treatment and 23 hospitalizations, but when you consider the entire record, it 24 does not appear that there was a significant decline, and, in 25 fact, consideration of later treatment notes show some 1 improvement. 2 The last opinion discussed by the plaintiff is from 3 Dr. Krantweiss, Dr. Adam Krantweiss, from November 18, 2017. 4 It appears at pages 598 to 602 of the Administrative 5 Transcript, and it addresses the plaintiff's level of 6 intellectual functioning, academic achievement, and adaptive 7 behavior. There are several findings. One finding is it is 8 expected that she would not succeed across many work 9 settings, she cannot technically be classified as 10 intellectually disabled, and it indicated that she should be 11 limited to a job requiring very basic capacity to read, spell 12 words, or perform mathematical calculations. 13 The opinion was discussed at page 21 of the 14 Administrative Transcript by the ALJ and given limited 15 weight. It was noted that Dr. Krantweiss admitted that his 16 findings were speculative, but it also showed that plaintiff 17 has a basic ability to perform unskilled work, and the 18 limitations, the intellectual limitations that were cited are 19 accounted for in the residual functional capacity finding. 20 Once again, the act of finding of work is not relevant. 20 21 CFR Section 416.966, and Morrow v. Astrue, 2010 WL 3259988, 22 from the Northern District of New York, July 30, 2010, that's 23 addressed at footnote 5. 24 So I don't find any error in the consideration and 25 weighing of the various medical opinions in this case, 1 including those of treating source Dr. Mirza. The step five 2 finding of the Commissioner is supported by substantial 3 evidence. I find that the Commissioner did carry his burden 4 at that step by relying on the testimony of a vocational 5 expert who was posed a hypothetical that parallelled the 6 residual functional capacity finding, which I do find is 7 supported by substantial evidence. 8 I agree with the Commissioner that the Court is 9 simply unable to say that in this case no reasonable 10 fact-finder could conclude as the Administrative Law Judge 11 did; or put another way, a reasonable fact-finder would have 12 to conclude that plaintiff is incapable of performing the 13 work identified by the vocational expert. 14 So I will grant judgment on the pleadings to the 15 defendant and order dismissal of plaintiff's complaint. 16 Thank you both. Please stay safe. 17 * * * 18 19 20 21 22 23 24 25 C E R T I F I C A T I O N

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States District Court for the Northern District of New York, do hereby certify that pursuant to Section 753, Title 28, United States Code, that the foregoing is a true and correct transcript of the stenographically reported proceedings held in the above-entitled matter and that the transcript page format is in conformance with the regulations of the Judicial Conference of the United States.

________________________________ EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter