Stevens v. Kijakazi

• Court: District Court, N.D. New York
• Decided: August 31, 2021
• Docket: 3:20-cv-00483
• Status: Unknown

Opinion

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

LAVONDA S.,

Plaintiff, v. Civil Action No. 3:20-CV-0483 (DEP) KILOLO KIJAKAZI, Acting Commissioner of Social Security,1

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

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

FOR DEFENDANT

SOCIAL SECURITY ADMIN. DANIEL S. TARABELLI, ESQ. 625 JFK Building 15 New Sudbury St Boston, MA 02203

1 Plaintiff's complaint named Andrew M. Saul, in his official capacity as the Commissioner of Social Security, as the defendant. On July 12, 2021, Kilolo Kijakazi took office as the Acting Social Security Commissioner. She has therefore been substituted as the named defendant in this matter pursuant to Rule 25(d)(1) of the Federal Rules of Civil Procedure, and no further action is required in order to effectuate this change. See 42 U.S.C. § 405(g). DAVID E. PEEBLES U.S. MAGISTRATE JUDGE

ORDER Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Commissioner of Social Security (“Commissioner”), pursuant to 42 U.S.C. §§ 405(g) and 1383(3)(c), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on

August 25, 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

2 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. 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 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: August 31, 2021 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK ------------------------------------------------------x LAVONDA S.,

Plaintiff,

vs. 3:20-CV-483

KILOLO KIJAKAZI, Acting Commissioner of Social Security, Defendant. ------------------------------------------------------x DECISION - August 25, 2021 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 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 my decision by thanking 2 counsel for excellent presentations. I enjoyed working with 3 both of you, and you always thoroughly address in your 4 written and verbal submissions the issues. 5 I have before me a challenge to the decision of the 6 Commissioner of Social Security pursuant to 42, United States 7 Code, Sections 405(g) and 1383(c)(3). In that decision the 8 Commissioner, or Acting Commissioner, found that plaintiff 9 was not disabled at relevant times, and therefore ineligible 10 for the benefits that she sought. 11 The background is as follows. Plaintiff was born 12 in December of 1968. She is currently 52 years of age. She 13 was 44 years old at the time of the alleged onset of her 14 disability on May 30, 2013. 15 Plaintiff stands 5-foot 2-inches in height. She 16 has weighed at various times between 209 and 259 pounds. In 17 December of 2014 she underwent bariatric weight reduction 18 surgery. Plaintiff lives in a house in Binghamton. It 19 appears she currently lives alone, although she did at one 20 time live with her husband. 21 Plaintiff has a GED and has attended Bible College, 22 studying organizational leadership and Biblical studies. I 23 am uncertain whether she graduated. By my calculation she 24 may have graduated in 2019. She was in her third year, or 25 sixth semester, in March of 2018. While there she took four 1 courses and was in school four days per week. Plaintiff 2 drives. She is also a certified CNA. 3 In terms of work, plaintiff worked as a CNA, or a 4 nurse assistant, in various settings from 1993 to July or 5 August of 2013. She also worked in the area of child care, 6 and as a private duty nurse in 2013, and as a part-time tax 7 preparer from 2010 to 2013. While in college, she worked 8 part time as a cashier in the college cafeteria from August 9 or September 2017 forward. Plaintiff has returned to work as 10 an overnight home health aide working approximately 16 to 32 11 hours per week, and as a call center representative working 12 37 and a half hours per week. 13 Plaintiff suffers from many physical impairments 14 that have been diagnosed over time, including fibromyalgia, 15 potential regional pain syndrome and arthritis, morbid 16 obesity, borderline diabetes, diabetic peripheral neuropathy, 17 a right shoulder issue stemming from a Workers' Compensation 18 injury on or about May 30, 2013. MRI testing of the right 19 shoulder revealed a tiny partial tear. She also suffers from 20 bilateral knee issues, bilateral hand issues, a small disk 21 protrusion at C5-C6 without neuro compression or stenosis. 22 Plaintiff uses a cane, although it has not been prescribed by 23 any medical provider. Mentally plaintiff suffers from major 24 depressive disorder and post-traumatic stress disorder. 25 Plaintiff's primary care provider is family Nurse 1 Practitioner Trichelle -- she was Trichelle Kirchner. At 2 some point she became Feheley. But I will refer to her for 3 the sake of consistency as Nurse Practitioner Kirchner. She 4 has seen Nurse Practitioner Kirchner since sometime in the 5 1990s. She has also seen Dr. Owais Ahmed from 2006 to 2011; 6 rheumatologist Dr. Paul Dura from 2006 to 2016; orthopedic 7 physician Dr. Eric Seybold from February until June of 2013; 8 Dr. Shalini Bichala. She received some knee injections twice 9 a year from Dr. Thomas VanGorder. She was at one point 10 receiving counseling from licensed clinical social worker 11 Esther McGurrin from Family and Childrens Society. She has 12 had multiple emergency room visits. She has also seen 13 Physician's Assistant Aspen D'Angelo who works with Dr. Dura. 14 Medications prescribed over time to the plaintiff 15 include Gabapentin, Tizanidine, hydrocodone, Sinuprol, 16 Cymbalta, Lyrica. 17 In terms of activities of daily living, plaintiff 18 is able to shower and dress, she drives, cooks, does laundry, 19 sweeps, mops, operates a computer, walks for exercise, she 20 does some socialization, watches television, reads. She is a 21 former smoker and marijuana user and an occasional alcohol 22 user. 23 Procedurally, plaintiff applied for Title II 24 benefits under the Act on June 10, 2013, and Title XVI 25 supplemental security income benefits on November 15, 2013, 1 both alleging an onset date of May 30, 2013. Administrative 2 Law Judge Marie Greener conducted a hearing to address those 3 applications on April 27, 2015, and subsequently issued a 4 decision on June 5, 2015, which was unfavorable to the 5 plaintiff. 6 The Social Security Administration Appeals Council 7 denied review of that decision on October 13, 2016. The 8 matter was remanded pursuant to an order issued by me on 9 June 12, 2017. That was followed by an Appeals Council order 10 of remand on August 15, 2017. A hearing was conducted on 11 March 14, 2018, by Administrative Law Judge Elizabeth 12 Koennecke, who subsequently issued an unfavorable decision on 13 April 26, 2018. The matter was subsequently remanded on 14 stipulation by order issued by Magistrate Judge Therese Wiley 15 Dancks on February 28, 2019. The Appeals Council 16 subsequently issued an order remanding on May 15, 2019 with 17 instructions. 18 A second hearing was conducted by Administrative 19 Law Judge Koennecke on February 4, 2020. She ultimately 20 issued an unfavorable decision on February 13, 2020. This 21 action was subsequently commenced on April 29, 2020, and is 22 timely. 23 In her decision, ALJ Koennecke applied the familiar 24 five-step sequential test for determining disability. She 25 first noted that the plaintiff was -- the focus was on a 1 closed period between the alleged onset date of May 30, 2013, 2 and May 31, 2018, based upon her return to work. She noted 3 plaintiff was insured through December 31, 2018. 4 She then found at step one the plaintiff had not 5 engaged in substantial gainful activity during the relevant 6 period. She did note some earnings and those were 7 considered. 8 At step two, ALJ Koennecke concluded that plaintiff 9 suffers from severe impairments that provide more than 10 minimal limitations on her ability to perform basic work 11 functions, including fibromyalgia, herniated nucleus pulposus 12 of the cervical spine without compression, right shoulder 13 tendonitis, and diabetic peripheral neuropathy. She noted 14 parenthetically that those were the same impairments that she 15 found severe in her earlier decision, and the Appeals Council 16 found no error at step two in its earlier decision. 17 At step three, ALJ Koennecke concluded that 18 plaintiff's conditions do not meet or medically equal any of 19 the listed presumptively disabling conditions set forth in 20 the Commissioner's regulations, specifically considering 21 listings 1.04 and 11.14. 22 The Administrative Law Judge then concluded that on 23 the evidence in the record that plaintiff retains the 24 residual functional capacity, or RFC, to perform light work, 25 except she can maintain a sitting or standing position for 1 about 45 minutes at one time before needing to assume a new 2 position. Applying that RFC finding, she concluded at step 3 four that plaintiff is incapable of performing her past 4 relevant work and proceeded to step five. 5 At step five, ALJ Koennecke noted that if plaintiff 6 were capable of performing a full range of light work, a 7 finding of no disability would be compelled by the 8 Medical-Vocational Guidelines set forth in the regulations, 9 or so-called grids, and specifically Grid Rules 202.14 and 10 202.21. 11 With the assistance of testimony from a vocational 12 expert, ALJ Koennecke next concluded that plaintiff is 13 capable of performing available work in the national economy 14 and cited representative positions as a work tickets 15 distributor, a recreation aide, and a furniture rental 16 consultant, which parenthetically she noted is also the same 17 as a furniture sales consultant, and thus concluded the 18 plaintiff was not disabled. 19 My function, as you know, is limited and the 20 standard applied is extremely deferential. I must determine 21 whether correct legal principles were applied and the 22 resulting determination is supported by substantial evidence, 23 which is defined as such relevant evidence as a reasonable 24 mind would find sufficient to support a conclusion. 25 The Second Circuit has made it very clear, 1 including in Brault versus Social Security Administration 2 Commissioner, 683 F.3d 443, from 2012, that the standard is 3 exceedingly deferential, more so than the clearly erroneous 4 standard that we as lawyers are familiar with. Under the 5 standard, once an ALJ finds a fact, that fact can be rejected 6 only if a reasonable factfinder would have to conclude 7 otherwise. 8 Plaintiff in her brief raises multiple contentions. 9 She addresses what she refers to as more or less the 10 hostility of the Administrative Law Judge to fibromyalgia 11 cases. And I understand the argument, especially from our 12 oral presentation, to mean that she has a pattern according 13 to the plaintiff of requiring objective evidence in 14 fibromyalgia cases in contravention of governing case law and 15 Social Security rulings. 16 The second contention is that the ALJ failed to 17 properly assess Dr. Dura's opinion as a treating source, and 18 the focus of that, of course, is on the ability to remain on 19 task and absenteeism. 20 The third is the failure to explain the weight 21 given to Nurse Practitioner Kirchner's opinion and if parts 22 were rejected. 23 And the fourth contention is the failure to 24 consider the evidence of the plaintiff being off task and 25 absent and characterizes the opinions of Dr. Dura and Nurse 1 Practitioner Kirchner as uncontradicted. 2 The fifth is the improper reliance on Dr. Jenouri's 3 opinion. 4 And the sixth is that the errors affect the 5 residual functional capacity finding; therefore, the 6 hypothetical presented to the vocational expert, and 7 therefore the step-five determination, is defective. 8 A couple of things for context. My remand in June 9 of 2017 was based on, one, the failure to consider altogether 10 Nurse Practitioner Kirchner's opinion and explain the parts 11 rejected and the basis and, two, failure to consider 12 Dr. Dura's opinion and the need to evaluate and go through 13 the factors governing and informing the treating source 14 analysis. The Appeals Council's remand in May of 2019 was 15 premised upon the alleged failure to evaluate Dr. Dura's 16 opinion, which is the opinion from June 29, 2015, that 17 appears at 20F, and the argument that the residual functional 18 capacity was not supported because there was no specific 19 weight given to any opinion regarding specific functional 20 limitations. 21 Starting first with fibromyalgia in general. 22 First, although plaintiff's counsel indicated that he was not 23 raising per se a bias argument to the extent it is considered 24 as deemed to have been raised, there's no question that a 25 claimant is entitled to an unbiased, impartial Administrative 1 Law Judge. There is, however, a presumption of fairness. 2 In this case there is no proof of actual bias on 3 the part of ALJ Koennecke against fibromyalgia or its 4 claimants. In any event, any argument of bias is waived 5 since it was not presented to the Agency at the earliest 6 opportunity. 20 CFR Sections 404.940 and 416.1440; Schneider 7 versus Berryhill, 2018 WL 3840824 (M.D. Pa. August 13, 2018); 8 Woodward versus Commissioner of Social Security, 2017 WL 9 1190951 (E.D. Mich. March 31, 2017); and Morris versus 10 Colvin, 2015 WL 3466109 (N.D. Fla. June 1, 2015). 11 The argument that I really believe is being raised 12 is the focus on the lack of -- the alleged focus by the 13 Administrative Law Judge on the lack of objective evidence. 14 Fibromyalgia is the subject of Social Security Ruling 12-2p, 15 and it is also the subject of the Second Circuit's decision 16 in Green-Younger versus Barnhart, 335 F.3d 99 (2d Cir. 2003). 17 Both make it clear that fibromyalgia is by definition and by 18 its very nature an elusive impairment that doesn't always 19 present itself with objective evidence. There are ways to 20 diagnosis it, as specified in Social Security Ruling 12-2p, 21 but there is a distinction, and it's not even a subtle 22 distinction, between requiring objective evidence to support 23 the diagnosis versus objective evidence to gauge the 24 resulting limitations. 25 The distinction is noted in SSR 12-2p. In that 1 ruling the Agency has noted, quote, "As with any claim for 2 disability benefits, before we find that a person with an MDI 3 of FM is disabled, we must ensure there is sufficient 4 objective evidence to support a finding that the person's 5 impairment(s) so limits the person's functional abilities 6 that it precludes him or her from performing any substantial 7 gainful activity." 8 Administrative Law Judge Koennecke recognized this 9 distinction. In her decision at the bottom of page 1153 and 10 the top of 1154, she noted the following: "I am aware 11 fibromyalgia is a diagnosis rendered without any objective 12 evidence. It is a subjective condition and this claimant, 13 just as every other claimant who alleges this impairment, 14 subjectively reports disabling pain with disabling functional 15 limitations. However, the Agency has not directed that the 16 diagnosis alone equals a finding of disability, rather it is 17 up to the undersigned to determine how severe her 18 fibromyalgia is. Because it is a condition that results in 19 complaints of widespread pain affecting function (in this 20 case testimony that she has excruciating pain throughout her 21 body every day), it necessarily affects findings reported on 22 examination, such as reduced strength due to pain, reduced 23 range of motion due to pain, limited movement due to pain, 24 antalgic gait, muscle bulk versus muscle wasting. Therefore, 25 there is objective evidence that can inform the undersigned 1 and fulfill the requirement to determine the severity of her 2 fibromyalgia. This is consistent with the Agency's 3 directives for evaluating fibromyalgia. Otherwise, if I am 4 precluded from evaluating any objective evidence, the 5 diagnosis alone does equate to a finding of disability. The 6 objective evidence detained herein" -- I think that might be 7 a typographical error -- "detained herein does not support 8 such a finding in this case. Gait issues, and muscle wasting 9 and other findings are not present from the record." 10 The distinction that we're discussing here has been 11 recognized by other courts, by the First Circuit in the 12 context of other types of cases, and in that case ERISA, a 13 claim for long-term disability benefits in Boardman versus 14 the Prudential Insurance Company America, 337 F.3d 9, n. 5 15 (1st Cir. 2003). And the distinction is also noted by the 16 Seventh Circuit in Williams versus Aetna Life Insurance 17 Company, another ERISA case based on application for 18 long-term disability benefits, 509 F.3d 317 at 322 (7th Cir. 19 2007). 20 In my view, the Administrative Law Judge properly 21 considered the available objective evidence to evaluate the 22 effect of plaintiff's fibromyalgia on her ability to perform 23 such functions as walking, bending, reaching, lifting. The 24 Administrative Law Judge considered, as Commissioner's 25 counsel argued, plaintiff's extensive walking activities, tax 1 preparation, missionary trip to Poland, the fact that she 2 went to college full time and worked part time at the same 3 time, her extensive activities of daily living, and properly 4 drew inferences from those objective factors to come up with 5 the residual functional capacity finding. 6 She also, of course, properly relied on the 7 opinion, the medical source opinion of consultative examiner 8 Dr. Jenouri, who noted mild restrictions in lifting, that's 9 at 377, something that is totally consistent with light work. 10 Randy L.B., 2019 WL 2210596 (N.D.N.Y. May 22, 2019). So I 11 find no error in the evaluation of objective evidence to 12 determine the extent of plaintiff's limitations 13 notwithstanding her fibromyalgia diagnosis. 14 The next argument concerns the opinion of Dr. Paul 15 Dura, who is a treating source. Dr. Dura indicated or gave 16 the response to a questionnaire on June 29, 2015, that 17 appears at 735 to 736 of the Administrative Transcript, 18 finding that plaintiff would be off task more than 15 percent 19 but less than 20 percent, she would be absent two days per 20 month, she can sit approximately six hours out of an 21 eight-hour day with breaks. The treating source also gave 22 another opinion on February 15, 2018, that's at page 1101 to 23 1104, indicating that plaintiff's condition was about the 24 same and the limitations were about the same as previously 25 noted. In that medical source statement, he stated, "I last 1 personally evaluated the patient on February 19, 2016, so 2 certainly I don't remember her well. She did not keep a 3 scheduled follow-up visit with me on October 25, 2017; 4 however, she was evaluated by the physician's assistant in 5 our office on October 26, 2017. Based on my review of that 6 office note, it would seem to me that her condition is about 7 the same with the same limitations." 8 The Administrative Law Judge discussed Dr. Dura's 9 opinions on page 1156 and gave them little weight. My 10 decision and a remand was based on a total failure to address 11 Dr. Dura's opinions. Dr. Dura clearly qualifies as a 12 treating source. This matter is governed by the former 13 regulations since the applications were made prior to March 14 of 2017. Under those regulations ordinarily the opinion of a 15 treating physician regarding the nature and severity of an 16 impairment is entitled to considerable deference, provided it 17 is supported by medically acceptable clinical and laboratory 18 diagnostic techniques and is not inconsistent with other 19 substantial evidence. Veino v. Barnhart, 312 F.3d 578, 588 20 (2d Cir. 2002). Such opinions are not controlling, however, 21 if they are contrary to other substantial evidence in the 22 record, including the opinions of other medical experts. 23 And, of course, where there are conflicts in the form of 24 contradictory medical evidence, the resolution of such 25 conflicts is properly entrusted to the Commissioner under 1 Veino. 2 The treating source rule also provides that when 3 controlling weight is not given to a treating source's 4 opinions, the ALJ must apply several factors, so-called 5 Burgess factors, and give an indication of what weight, if 6 any, is given to the opinion and why. 7 Of course, in Estrella versus Berryhill, 925 F.3d 8 90 (2d Cir. 2019), the Second Circuit realistically noted 9 that very few of the Administrative Law Judge's decisions go 10 through a rote analysis of the Burgess factors and found that 11 that is not reversible error if a searching review of the 12 record convinces the Court that the treating source rule was 13 followed. 14 In this case, although I would have liked a more 15 fulsome discussion perhaps of Dr. Dura's opinions, I believe 16 that the Administrative Law Judge did explain the reasons for 17 giving little weight to Dr. Dura's opinions. One of the 18 reasons cited was that Dr. Dura stated the limitations 19 existed dating back to October 2010. During a significant 20 part of that period she was working. Dr. Dura also failed to 21 respond to a request for clarification on his report of 22 reflex sympathetic dystrophy and complex regional pain 23 syndrome, and the fact that plaintiff herself admitted she 24 did not see Dr. Dura very often. 25 I think that based on the discussion, the treating 1 source rule was not abrogated. And I note that the fact that 2 the plaintiff worked during the period of time when Dr. Dura 3 said she was disabled is a relevant factor. Johnston versus 4 Berryhill, 2017 WL 1738037 (Dist. Kan. May 4, 2017). So I 5 find no violation of the treatment source rule and the 6 consideration of Dr. Dura's opinion. 7 When it comes to the opinions of Nurse Practitioner 8 Kirchner, she issued opinions on March 13, 2014, at 443 to 9 444; and October 21, 2017, 1042 to 1044. They're extremely 10 restrictive but they appear to be based on plaintiff's 11 subjective statements, both containing the caveat as follows, 12 "Patient has history of fibromyalgia. This is managed by 13 Regional Rheumatology, Dr. Dura. The information provided is 14 based on what patient states she can do." And the similar 15 caveat -- that's at page 444. A similar caveat appears at 16 page 1044. 17 It's certainly a proper basis for giving less 18 weight to the opinion of Nurse Practitioner Kirchner. Of 19 course, under the former regulations she's not an acceptable 20 medical source. Her opinions are discussed by the 21 Administrative Law Judge at 1155 to 1156 and given no weight. 22 There is no indication here that the opinions are based on 23 the nurse practitioner's own medical judgment; it's clear 24 that she defers to Dr. Dura who was treating her 25 fibromyalgia, so they have little or no value and were 1 properly discounted. 2 I do acknowledge that in my instructions I wanted a 3 fuller explanation of Nurse Practitioner Kirchner's opinion 4 and why it was being discounted. I think it's in there. I 5 note that that instruction is not included in the Appeal 6 Council's second remand order. So it's addressed, maybe not 7 perfectly, but I cannot say that a reasonable factfinder 8 would have to afford more weight to Nurse Practitioner 9 Kirchner's opinions, so I find no error. 10 In terms of off task and absenteeism, that, of 11 course, brings into play the residual functional capacity of 12 the plaintiff, which is pivotal to the finding of no 13 disability. A claimant's RFC represents a finding that the 14 range of tasks she is capable of performing notwithstanding 15 her impairment ordinarily represents a maximum ability to 16 perform sustained work activities in an ordinary setting on a 17 regular and continuing basis, meaning eight hours a day for 18 five days a week, or an equivalent schedule. Tankisi versus 19 Commissioner of Social Security, 521 Fed App'x 29, at 33 (2d 20 Cir. 2013). An RFC determination, of course, is informed by 21 consideration of all of the relevant medical and other 22 evidence. 23 In this case, Dr. Dura, as I stated earlier, opined 24 that the plaintiff would be off task 15 to 33 percent of the 25 time, at page 735, 736, and absent two days per month, and 1 that she would have good and bad days. On February 15, 2018, 2 he opined she would be off task 15 to 20 percent and absent 3 two times per month, at 1101 to 1103, and had good and bad 4 days. Nurse Practitioner Kirchner stated the need to take 5 frequent unscheduled breaks, at 444. Dr. Jenouri did not 6 mention any limitation regarding schedule or absenteeism. 7 I note that an RFC determination need only be based 8 on substantial credible medical evidence. The Administrative 9 Law Judge properly gave more weight to Dr. Dura's opinions 10 and no weight to Nurse Practitioner Kirchner, which leaves, 11 one could argue, a void. But the cases are clear that there 12 is no need for a medical opinion supporting of every 13 limitation in an RFC determination. That was noted by the 14 Second Circuit in Tankisi, a case that I cited a moment ago, 15 as well as Monroe v. Commissioner of Social Security, 676 16 Fed. Appx. 5 (2d Cir. 2013), and Moxham versus Commissioner 17 of Social Security, 2018 WL 1175210 (N.D.N.Y. March 5, 2018). 18 I note, of course, as a backdrop that it is 19 plaintiff's burden to show her limitations up through step 20 four, and that includes the RFC finding. I think this may be 21 considered a close case, but in this instance the 22 Administrative Law Judge in rejecting absenteeism and off 23 task relied on the activities of daily living, including 24 part-time and full-time employment, inconsistencies between 25 plaintiff's claims and treatment records. It is clear that 1 she was able to attend college four days per week, taking 2 four courses, and working part time. There is no indication 3 that that was impeded by excessive absenteeism or being off 4 task. 5 Given the deferential standard that I'm applying, I 6 am unable to say that the residual functional capacity 7 determination was not supported by substantial evidence. So 8 in conclusion, I find no error in formulating the residual 9 functional capacity. Substantial evidence supports it in its 10 entirety. At step five the Commissioner carried her burden 11 based on the vocational expert's testimony and presented with 12 the hypothetical that was based on the residual functional 13 capacity finding. 14 So I will grant judgment on the pleadings to the 15 defendant and order dismissal of plaintiff's complaint. 16 Thank you both. Enjoy the rest of your summer. 17 * * * 18 19 20 21 22 23 24 25 CERTIFICATION

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.

Reon WMeDonough EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter