Blossom v. O'Malley

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ SANDRA B., Plaintiff, v. Civil Action No. 3:23-cv-580 (DEP) MARTIN J. O’MALLEY, Commissioner of Social Security Administration,1 Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF LEGAL AID SOCIETY CINDY DOMINGUE-HENDRICKSON, ESQ. OF MID-NEW YORK, INC. 221 South Warren Street, Suite 310 Syracuse, NY 13202 FOR DEFENDANT SOCIAL SECURITY ADMIN. VERNON NORWOOD, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235 1 Plaintiff’s complaint named Kilolo Kijakazi, in her official capacity as the Acting Commissioner of Social Security, as the defendant. On December 20, 2023, Martin J. O’Malley took office as the Commissioner of Social Security. He 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(c)(3), are cross-motions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on May 23, 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 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: May 29, 2024 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x SANDRA B., Plaintiff, vs. 5:23-CV-580 MARTIN J. O'MALLEY, Commissioner of Social Security, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on May 23, 2024, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: LEGAL AID SOCIETY OF MID-NEW YORK, INC. Attorneys at Law 120 Bleecker Street Utica, New York 13501 BY: CINDY DOMINGUE-HENDRICKSON, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION Office of the General Counsel 6401 Security Boulevard Baltimore, Maryland 21235 BY: VERNON NORWOOD, ESQ. Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and Counsel present by telephone.) 2 THE COURT: Thank you. Let me begin first of all 3 by thanking both counsel for excellent presentations in both 4 writing and orally today. And Attorney Hendrickson, I 5 commend you, you did not write the brief in this case, you 6 withstood my questioning in fine fashion, and so my hat is 7 off to you. Attorney Norwood always does a good job and I 8 commend him as well. 9 Before we get to the meat of my decision there is 10 one issue that I must address. When this case was initially 11 filed, it was assigned to one of my colleague magistrate 12 judges, Judge Miro Lovric. The consent form that was filed 13 and signed by Attorney Elizabeth Lombardi on behalf of 14 plaintiff on May 12, 2023 consented specifically to Judge 15 Lovric. The matter has since been reassigned to me. I'm 16 sorry to put you on the spot, Attorney Hendrickson, but do 17 you consent to my deciding this case as opposed to issuing a 18 report and recommendation to a district judge yet to be 19 named? 20 MS. HENDRICKSON: Yes, I do, your Honor. 21 THE COURT: Thank you. 22 The plaintiff has commenced this proceeding to 23 challenge an adverse determination by the Commissioner of 24 Social Security finding that she was not disabled at the 25 relevant times and therefore ineligible for the benefits 1 sought. The matter is brought pursuant to 42 United States 2 Code Section 405(g) and 1383(c)(3). 3 The background is as follows: Plaintiff was born 4 in July of 1974, she is currently 49 years of age. Plaintiff 5 lives alone in an apartment. It's a first floor apartment in 6 Oxford, New York. She is 5 foot 8 inches in height and at 7 various times has weighed approximately 180 pounds. 8 Plaintiff does not have a driver's license although she did 9 at one time drive. The evidence is somewhat equivocal as to 10 whether she is capable of taking public transportation. At 11 the hearing she said no at page 44; in her function report 12 she said yes, that's at page 400. Plaintiff has a high 13 school diploma and attended regular classes while in school. 14 Plaintiff stopped working in August of 2013. The record is 15 equivocal and unclear as to whether it was due to her 16 impairments or to domestic violence issues. While working, 17 she worked as a shipping and receiving clerk in a factory, an 18 administrative assistant, an assistant convenience store 19 manager, and an office worker. 20 Physically, plaintiff suffers from degenerative 21 disc disease of the cervical spine, degenerative joint 22 disease, bilateral, of shoulders, degenerative disc 23 disease -- I'm sorry, degenerative joint disease of the right 24 knee, obesity, and left foot pain. With regard to the foot, 25 she underwent fusion surgery on her left foot in December of 1 2019. She also has a history of bilateral shoulder issues 2 and has undergone four surgeries on her shoulder in the past, 3 bilateral knee pain, carpal tunnel syndrome, lumbar pain, and 4 has undergone, as I said, multiple surgeries. 5 Mentally, plaintiff suffers from conditions that 6 have been variously diagnosed, including as adjustment 7 disorder with anxiety, adjustment disorder with depressed 8 mood, personality disorder, opioid use disorder, stimulant 9 use disorder, methamphetamine use disorder, tobacco use 10 disorder, substance abuse in early remission. There is also 11 mention at some point of post-traumatic stress disorder and 12 bipolar disorder. Plaintiff apparently has had substance 13 abuse issues but claims to have been sober since March of 14 2019. 15 In terms of activities of daily living, plaintiff 16 is able to shower, dress, shop, do light meal preparation, 17 some laundry with the help of her daughter, she watches 18 television, listens to the radio, exercises, vacuums, can 19 walk up stairs, washes dishes, does yard work, and as I said, 20 she did drive and when she did drive, she drove her children 21 to and from school. 22 Procedurally, plaintiff applied for benefits 23 previously on May 1, 2014, that was denied on September 22, 24 2016, and the Social Security Administration Appeals Council 25 denied her application for review of that determination on 1 October 4, 2017. Another application was filed on 2 November 23, 2017 and denied on June 24, 2019. Plaintiff 3 protectively filed for Title II and Title XVI benefits on 4 July 26, 2019, alleging an onset date of August 25, 2013. 5 She claims to have been disabled based upon degenerative 6 disease of the right shoulder, meniscus tear, abnormal foot 7 growth, foot bone growth, arthritis of the neck, hands, 8 shoulder, foot, back, et cetera, torn rotator cuff, carpal 9 tunnel syndrome, post-traumatic stress disorder, depression, 10 and anxiety. A hearing was conducted on July 13, 2021 by 11 Administrative Law Judge Elizabeth Koennecke to address 12 plaintiff's applications for benefits. Another hearing was 13 conducted on October 6, 2021 at which time the testimony of a 14 vocational expert was elicited. ALJ Koennecke issued an 15 unfavorable decision on October 15, 2021. The Social 16 Security Administration Appeals Council denied plaintiff's 17 application for review of that decision on March 13, 2023. 18 This action was commenced on May 12, 2023 and is timely. 19 In her decision ALJ Koennecke initially denied any 20 explicit or implicit request by plaintiff to reopen the prior 21 proceedings, and therefore determined that the relevant 22 period for Title XVI benefits would be from June 25, 2019. 23 She also noted that plaintiff's last insured status was 24 December 31, 2018. 25 The ALJ applied the familiar five-step sequential 1 test for determining disability. 2 At step one she found that plaintiff had not 3 engaged in substantial gainful activity since August 25, 4 2013. 5 At step two she found that plaintiff does suffer 6 from severe impairments that impose more than minimal 7 limitations on her ability to perform basic work functions, 8 including mild degenerative disc disease of the cervical 9 spine, degenerative joint disease of the shoulders, and 10 degenerative joint disease of the right knee. In arriving at 11 that finding, she noted other alleged impairments -- those 12 include a history of bone spurs in her left foot, carpal 13 tunnel syndrome, her low back pain complaints, obesity, and 14 her mental conditions as variously diagnosed -- and concluded 15 that they did not constitute severe impairments as plaintiff 16 argues. At step two ALJ Koennecke did not specifically 17 address plaintiff's left knee condition. She also addressed 18 plaintiff's heart condition which she found to be mild, and 19 in that regard, found the opinion of plaintiff's cardiologist 20 to be persuasive. 21 At step three, ALJ Koennecke found the plaintiff's 22 conditions do not meet or medically equal any of the listed 23 presumptively disabling conditions set forth in the 24 Commissioner's regulations, specifically considering Listings 25 1.15 and 1.17. She then determined that notwithstanding her 1 impairments, plaintiff retains the residual functional 2 capacity, or RFC, to perform light work as defined in the 3 regulations except she can occasionally climb ramps or 4 stairs, ladders, ropes, or scaffolds and can occasionally 5 balance, stoop, kneel, crouch, or crawl. She can 6 occasionally lift or reach overhead but has no other reaching 7 limitations. 8 Applying that RFC at step four, ALJ Koennecke 9 concluded that plaintiff is incapable of performing her past 10 relevant work and proceeded to step five where, with the 11 benefit of testimony from the vocational expert, she 12 concluded that plaintiff is capable of performing available 13 work in the national economy, citing as representative 14 positions those of cashier II, sales attendant, and 15 housekeeping cleaner. 16 As you know, the court's function in this case is 17 to determine whether correct legal principles were applied 18 and the resulting determination is supported by substantial 19 evidence, defined as such relevant evidence as a reasonable 20 mind would find sufficient to support a conclusion. The 21 standard which the court must apply is extremely deferential, 22 as the Second Circuit has noted in Brault v. Social Security 23 Administration Commissioner, 683 F.3d 443 , from 2012, and 24 more recently reiterated in Schillo v. Kijakazi, 31 F.4th 64 25 from 2022. As the Second Circuit noted in Brault, what the 1 standard means is that once an ALJ makes a finding of fact, 2 that fact can be rejected only if no reasonable person would 3 have to reach that conclusion. As I said before, it's a 4 deferential standard, more rigorous than the clearly 5 erroneous standard. The exact quote is, "The substantial 6 evidence standard means once an ALJ finds facts, we can 7 reject those facts only if a reasonable fact finder would 8 have to conclude otherwise." It also should be noted that it 9 is plaintiff's burden through step four, including at the RFC 10 level, to demonstrate her impairments and the resulting 11 limitations that would affect her ability to perform basic 12 work functions. The Commissioner of course bears the burden 13 at step five. 14 Plaintiff's contentions in this case can be more or 15 less boiled down, she complains of the failure to find 16 plaintiff's left knee as a medically determinable impairment, 17 and of the fact that several other of her conditions were not 18 found to be severe, including degenerative disc disease, 19 borderline personality disorder, and obesity. 20 Secondly, she challenges the evaluation of medical 21 opinions pursuant to the revised regulations that took effect 22 in 2017, including the opinions of Dr. Ewald, plaintiff's 23 podiatrist, various check-box forms that were lumped together 24 by ALJ Koennecke and discussed collectively, the opinion of 25 Dr. Gilbert Jenouri, a consulting examiner, and Dr. Abueg and 1 Dr. Kirsch, state agency consultants. 2 With regard to plaintiff's left knee impairment, at 3 step two of the sequential evaluation, a claimant must show 4 that he or she has a medically determinable impairment that 5 rises to the level of a severe impairment, 20 C.F.R. Section 6 404.1520(a)(4)(ii) and 416.920(a)(4)(ii). An impairment 7 fails to reach this threshold of severity where it does not 8 significantly limit your physical or mental ability to 9 perform basic work activities, which include the ability to 10 engage in exertional functions, to see, hear, speak, 11 understand, remember, and carry out simple instructions, use 12 judgment, respond appropriately to supervision, coworkers and 13 usual work situations, and deal with changes in a routine 14 work setting. Undeniably, as plaintiff has argued, the step 15 two test is fairly de minimus and intended only to screen out 16 the truly weakest of cases. The mere presence of an 17 impairment or disease, however, is not sufficient by itself 18 to render a condition severe. 19 The -- in terms of the left knee, I note that it 20 was not addressed clearly at step two in ALJ Koennecke's 21 discussion, and therefore one must assume it was not found to 22 be a medically determinable impairment which is defined as an 23 impairment resulting from anatomical, physiological or a 24 physical and mental -- or psychological abnormalities that 25 can be shown by medically acceptable clinical and laboratory 1 diagnostic techniques. The regulation provides that a 2 physical or mental impairment must be established by 3 objective medical evidence from an acceptable medical source, 4 20 C.F.R. Section 404.1521. Clearly plaintiff has complained 5 of bilateral knee pain. She made complaints in 2018 and 6 2019, including at 624, 631 to 632 and 2066, and in 2020 she 7 complained that her pain in the left knee was worse, surgery 8 was discussed. As the plaintiff points out, in July of 2020, 9 there was magnetic resonance imaging, or MRI, testing, the 10 results are at 2066 and 2070, they are signed by a physician, 11 Dr. Timothy Shepard. Dr. Gilbert Jenouri, the consultative 12 examiner, diagnosed the plaintiff with bilateral knee pain, 13 that's at page 755. 14 So it appears that it was error to find that it was 15 not a medical determinable impairment or even to mention it. 16 And that of course is problematic. As plaintiff has argued, 17 it is not harmless error necessarily, Penny Lou S. v. 18 Commissioner of Social Security, 2019 WL 5078603 . In that 19 case, Magistrate Judge Conroy from the District of Vermont in 20 October of 2019 pointed out that a finding of a condition not 21 being a medically determinable impairment can color the 22 subsequent sequential analysis. In this case, the ALJ said 23 she has considered all medically determinable impairments, 24 severe and nonsevere, in assessing the RFC at page 18, so she 25 obviously did not consider plaintiff's left knee condition 1 which she found not to be a medically determinable 2 impairment. 3 The matter was raised in Lorraine Michelle H. v. 4 Commissioner of Social Security, 2022 WL 7285345 from the 5 Northern District of New York, Magistrate Judge Thérèse Wiley 6 Dancks, September 13th, 2022. In that case she went on to 7 say that while migraine headaches were not found to be a 8 medically determinable impairment, they clearly were 9 considered throughout the course of the decision. Do I still 10 have both counsel on the line? 11 MR. NORWOOD: Yes, your Honor. 12 MS. HENDRICKSON: Yes. 13 THE COURT: Okay, I heard a ding and I wasn't sure 14 what it meant. 15 So clearly, that is potentially problematic, that 16 it was not found to be -- I'll call it an MDI. However, I 17 didn't find, and I scoured the medical opinions and the 18 medical evidence, did not find any evidence of resulting 19 limitations on the ability to perform plaintiff's basic work 20 activities beyond those already reflected in the RFC. 21 On September 26, 2019, Dr. Jenouri found 22 plaintiff's gait to be normal and found no limitations in 23 walking, just a moderate limitation in standing long periods. 24 That's at 755. 25 On October 1, 2013, Physician's Assistant Michelle 1 Provost found no limitation in standing and walking, that's 2 at 1960. 3 On November 16, 2015, Dr. Matthew Cline, if I'm 4 reading my notes correctly, found only a moderate limitation 5 in walking and standing, that's at 1964, but that was in 6 anticipation of foot surgery which was to take effect -- or 7 to occur on November 26, 2015. And there was an indication 8 that the condition would last one to three months and then 9 plaintiff could resume normal activities. 10 In May of 2016, Dr. Kamlesh Desai, an orthopedist, 11 found no limitation in walking and standing, that's at 1965 12 to 66. Family Nurse Practitioner Maria Berry found no 13 limitation in walking and standing in October of 2017, that's 14 at 1970. 15 On October 28, 2018, Nurse Practitioner Berry found 16 no limitation in walking, 1974. She did note, however, that 17 plaintiff cannot walk or stand for extended time. 18 Dr. Michael McClure on July 29, 2019 indicated 19 plaintiff presents for bilateral pain, worsened right knee, 20 x-ray unremarkable for left, that's at 813. Gait normal, 21 full strength and range of motion in legs, that's at 810 to 22 813. 23 Dr. Abueg and Dr. Kirsch, the two state agency 24 physicians that were consulted, supported the RFC. Both 25 indicated plaintiff can stand and/or walk for six hours in an 1 eight-hour day. They noted only the back -- well, they noted 2 there was no medically determinable impairment as of 3 plaintiff's last date of insured status at 132 to 138, and 4 only a severe medically determinable impairment of the back 5 thereafter. 6 Nurse Practitioner Berry on December 27, 2019 found 7 that plaintiff had only moderate limitations in the ability 8 to walk and stand, that's at 1975 to 1976, which is not 9 inconsistent with light work, I will add. 10 So I don't find -- although this is a close case, 11 and I agree that Penny Lou S. makes the harmless error 12 doctrine potentially inapplicable in a case like this, it's 13 clear that the ALJ was obviously aware of plaintiff's left 14 knee pain, that's indicated at page 22. I didn't find any 15 evidence that the left knee impairment would undermine the 16 RFC, and so while there may have been error, it would be, it 17 would be an exercise in futility in my view to remand this 18 matter and recognize left knee pain as a medically 19 determinable impairment. It would not change the outcome. 20 And I'll note in that regard, in fairness to ALJ Koennecke, 21 plaintiff did not claim in her function report a left knee 22 issue as a basis for finding disability, that's at page 371. 23 Turning to the argument of not finding severe 24 impairments for those that were determined to be medically 25 determinable, with respect to the mental borderline 1 personality disorder, the ALJ clearly considered plaintiff's 2 mental impairments, they were discussed at 17 to 19 of the 3 Administrative Transcript, including borderline personality 4 disorder. She applied the special technique and found mild 5 limitations in two of the four part B domains and no 6 limitations in the other two. Her determination is supported 7 by the consultative report of Dr. Sara Long who examined the 8 plaintiff. It was not diagnosed by her at page 749. It's 9 also supported by Dr. J. Weitzen at 1959 and Dr. Kamin, 1017. 10 And I'll note that it is clear that state agency consultants 11 can provide -- can supply substantial evidence to support a 12 determination if they are supported in turn by substantial 13 evidence. Woytowicz v. Commissioner of Social Security, 2016 14 WL 6427787 , from the Northern District of New York, 15 October 5, 2016, report and recommendation of Magistrate 16 Judge William Carter, was later adopted by Judge Glenn 17 Suddaby on October 28, 2016 at 2016 WL 6426385 . I will take 18 pause to note that it is true that in a, particularly in a 19 mental health case, the opinions of nonexamining consultants 20 are given a little bit less weight than someone who has 21 treated or examined the plaintiff. In this case, because it 22 is consistent with Dr. Long who examined the plaintiff and 23 also several of her treating therapists, however, I believe 24 that it is appropriate to weigh those state agency 25 consultative reports and give them credibility or credence. 1 I note that plaintiff's therapists do not opine to 2 more significant limitations, and plaintiff's activities of 3 daily living and her own function report do not contradict 4 the state agency consultants' findings. So I find no error. 5 And again, if there was error, it was harmless because ALJ 6 Koennecke specifically stated she was considering all 7 impairments when formulating the RFC, both severe and 8 nonsevere. And so because she went on to the rest of the 9 sequential analysis, there was -- if there was error, it was 10 harmless. But I don't believe there was error. 11 With regard to bone spurs, ALJ Koennecke at page 17 12 explained why she rejected that as a severe impairment. She 13 cited evidence which showed that after the December 2019 14 surgery, within six months plaintiff returned to normal. I 15 do agree the decision could have been clearer as to the basis 16 and specifically whether or not her condition met the 17 durational requirement but if there was error, again, it was 18 harmless based on the assertion that ALJ Koennecke considered 19 all of plaintiff's medically determinable impairments. 20 Obesity was addressed at page 17 of the decision. 21 It was explained that there wasn't any evidence presented by 22 the plaintiff to show that her obesity imposed more 23 limitations than those resulting from her other impairments. 24 It is plaintiff's burden to show resulting limitations. The 25 mere existence of a condition like obesity alone will not 1 suffice. Again, if it was error, it was harmless based on 2 the statement that the ALJ considered the effects of obesity 3 in formulating her RFC at page 17. 4 Lumbar spine, the objective evidence, both MRI 5 testing results and x-rays, were largely unremarkable. The 6 MRI in September of 2019 showed only a small disc protrusion 7 at L5-S1 and a moderate protrusion at L4-L5. Once again, if 8 there was error, it was harmless. 9 Pivotal, as you know, to the determination of 10 disability is assessment of the plaintiff's residual 11 functional capacity or RFC, which is a finding of the range 12 of tasks he or she is capable of performing notwithstanding 13 his or her impairments. An RFC ordinarily represents a 14 claimant's ability, maximum ability to perform sustained work 15 activities in an ordinary setting on a regular and continuing 16 basis, meaning eight hours a day for five days a week or an 17 equivalent schedule. And of course an RFC is informed by 18 consideration of all of the evidence of record and must be 19 supported by substantial evidence. 20 In this case, the RFC includes the ability to 21 perform light work, which is defined by regulation in 20 22 C.F.R. Section 404.1527, and also Social Security Ruling 23 83-10. Essentially when it comes to standing or walking, 24 which seems to be the primary focus of plaintiff's arguments, 25 it requires the ability to intermittently stand or walk for a 1 total of six hours in an eight-hour workday. Poupore v. 2 Astrue, 566 F.3d 303 , Second Circuit 2009, and also Lisa B. 3 v. Commissioner of Social Security, 2022 WL 6735016 , Northern 4 District of New York, October 11, 2022. 5 In this case the RFC is supported by the opinions 6 of Dr. Abueg, Dr. Kirsch, and Dr. Jenouri. I note that 7 Dr. Jenouri did find moderate limitation, however, case law 8 is clear -- that he found moderate limitation in standing 9 long periods, that's at 755. Case law is clear, however, 10 that moderate limitations in the ability to stand, sit, and 11 perform other activities is not inconsistent with light work. 12 White v. Berryhill, 753 F.App'x 80 from the Second Circuit, 13 February 7, 2019. 14 So I believe the RFC is supported, including by the 15 many medical opinions in the record, which leads me to 16 evaluation of those medical opinions. And there are many, 17 many in the record. Frankly, there's something for everyone 18 in the medical opinions, but the vast majority of them 19 actually support the RFC, and that includes from treating 20 sources. Those opinions are in varying degrees of 21 specificity. When it comes to evaluation of medical 22 opinions, under the new regulations, applicable to 23 applications filed after March 27, 2017, the Commissioner no 24 longer defers or gives any specific evidentiary weight, 25 including controlling weight, to medical opinions, but rather 1 will consider those opinions and whether they are persuasive 2 by primarily considering whether they are supported by and 3 consistent with the record in the case. 20 C.F.R. Section 4 404.1520(c) and 20 C.F.R. Section 416.920c. The ALJ must 5 articulate in his or her determination as to how persuasive 6 he or she finds all of the medical opinions and explain how 7 he or she considered supportability and consistency of those 8 opinions. 9 Plaintiff first complains of the treatment of, 10 and -- first complains of the treatment of opinions, or I 11 should say notes provided by Dr. Brandon Ewald, plaintiff's 12 treating podiatrist. On December 27, 2019, Dr. Ewald 13 performed surgery on the plaintiff and filed a report that is 14 located at 1740 to 1742 of the Administrative Transcript. In 15 that report, he states the following: "Stable to home, 16 non-weight bearing and posterior splint, leave bandage clean, 17 dry and intact until first postoperative visit." On 18 January 8, 2020, he provides a statement of employability in 19 which he concludes that plaintiff is very limited in walking 20 and standing. That's at page 1979 and 1980. On January 23, 21 2020, at page 1827, he provides a note addressed to "To Whom 22 It May Concern," stating simply, "I will ask that she," the 23 plaintiff, "be out of work 1/24/20." 24 On -- so of those, the only one that constitutes a 25 medical opinion, which is defined in the regulations as a 1 statement from a medical source about what you can still do 2 despite your impairments and whether you have one or more 3 impairment-related limitations or restrictions in various 4 specified abilities, including meeting the physical demands 5 of work activities, 20 C.F.R. Section 404.1513, the only one 6 of those three that constitutes an opinion, a medical opinion 7 is the January 8, 2020 opinion. The administrative law judge 8 discussed it and found it less persuasive, because in her 9 view, the evidence, including Dr.Ewald's notes, suggested 10 that the condition was temporary and was related to the 11 surgery that's at page 23. As confirmed by statements on 12 March 13, 2020, that's 2005, 2008, and June 5, 2020, that's 13 at 2009 to 2012, indicating plaintiff was pleased with the 14 results of the surgery and resumed normal activities. Read 15 as a whole, I am unable to say that the ALJ did not properly 16 consider consistency and supportability of Dr. Ewald's 17 opinions. 18 Next, plaintiff raises issues concerning the 19 various check-box forms. There were many. The salient ones 20 that I found include from Physician's Assistant Michelle 21 Provost, October 1, 2013, 1959, 1960, who found no 22 limitations in plaintiff's ability to walk and stand; 23 Physical Therapist Daniel Downs, it is undated, appears at 24 1961 to 1962, there were no limitations physically noted; 25 Licensed Master Social Worker Vincent Nucero from 1 November 13, 2017, that appears at 1971 to 1972, finding 2 moderate limitation in four mental areas; Dr. Kamlesh Desai, 3 an orthopedist, from May 3, 2016, that's at 1965 to 1966, 4 finding no limitation in plaintiff's ability to walk and 5 stand; Dr. Matthew Cline from November 16, 2015, 1963 to 6 1964, finding moderate limitations in the ability to walk and 7 stand but noted that after her procedure she would likely be 8 able to return to full activity, the procedure being the 9 November 26, 2015 anticipated surgery. There are also 10 several from Nurse Practitioner Berry. One from October 7, 11 2017, 1969, 1970 with no limitations noted to walk and stand; 12 October 28, 2018, 1973 to 1974, no limitations in walking but 13 cannot stand or walk for any extended time; and December 27, 14 2019, that's at 1975, 1976, moderate limitation in walking 15 and standing, cannot stand for any length of time. The only 16 one that was addressed by the ALJ was the December 27, 2019 17 opinion, that's at page 23. These were grouped together and 18 summarily discounted as being in check-box forms, that's at 19 page 23, because they were based solely on plaintiff's 20 subjective complaints and inconsistent with the record. 21 I recognize fully that the Second Circuit has said 22 that the fact alone that a form is provided by a treatment 23 provider or someone else on a check-box form without any 24 citation to supporting evidence alone is not a sufficient 25 basis to reject check-box forms, Colgan v. Kijakazi, 22 F.3d 1 353 from January 22, 2022. However, A, these are not very 2 useful because most of them don't have any treating 3 relationship with the -- or I'm sorry, don't have extended 4 treatment notes in the record that the ALJ could look to to 5 determine whether those check-box forms are supported by 6 findings or not. However, I don't find that any of them are 7 inconsistent with the RFC finding. So if there was error, it 8 was harmless. 9 Dr. Gilbert Jenouri gave an opinion, he was a 10 consultative examiner, that was discussed, that was -- the 11 report was issued on September 26, 2019 at page 752 to 757. 12 It, as I indicated previously, suggested only a moderate 13 limitation or restriction in standing long periods. It was 14 addressed by the administrative law judge at page 23 and 15 found to be less persuasive. I'm not sure it's totally 16 inconsistent with the RFC but in any event, I don't find any 17 error in her assessment of Dr. Jenouri's opinion when the 18 decision is read as a whole. 19 The state agency consultants who opined concerning 20 physical abilities of the plaintiff, Dr. Abueg on October 10, 21 2019, 132 to 137, and that was for the period predating, or 22 as of December 31, 2018, the date of last insured status, he 23 found no medically determinable impairments. He also issued 24 an opinion on October 10, 2019, that's at 119 to 131, that 25 supports the residual functional capacity. Dr. Kirsch on 1 February 7, 2020, on reconsideration, found that as of 2 12/31/18 there was no medically determinable impairment, 158 3 to 173. He issued another opinion on February 7, 2020, 141 4 to 157, supporting the RFC. They were both addressed at 5 page 23 by the ALJ and found to be more persuasive. 6 As I indicated previously, it is proper for an ALJ 7 to rely on the opinions of a state agency consultant. 8 Plaintiff argues that those may have been stale; however, I 9 didn't see any evidence of a significant deterioration of 10 plaintiff's physical condition after those opinions were 11 rendered that would have undermined their ability to serve as 12 substantial evidence to support the RFC. 13 So in summary, it's clear that this decision could 14 have been written better, there are certain aspects of it 15 that are potentially problematic, but my conclusion is in 16 most instances, if there was error, it was harmless error, 17 and I am unable to say that no reasonable fact finder -- I'm 18 sorry, put another way, a reasonable fact finder would have 19 to conclude other than the way in which the administrative 20 law judge did. I think when her decision is read as a whole, 21 the court can glean why she weighed the medical opinions of 22 record the way she did, and it seems to me that the plaintiff 23 is simply asking the court to weigh them differently -- 24 something which is clearly not the court's function. So I 25 will grant judgment on the pleadings to the defendant and 1 order dismissal of plaintiff's complaint and the entry of 2 judgment to that effect. 3 Thank you again for excellent presentations, I hope 4 you have a wonderful Memorial Day weekend. Thank you. 5 MS. HENDRICKSON: Thank you, your Honor. 6 MR. NORWOOD: Thank you. 7 (Proceedings Adjourned, 3:20 p.m.) [25] 1 CERTIFICATE OF OFFICIAL REPORTER [3] 4 I, JODI L. HIBBARD, RMR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. [15] 16 Dated this 28th day of May, 2024. [18] 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RMR, CRR, CSR Official U.S. Court Reporter