ORDER

DAVID E. PEEBLES, Magistrate Judge.

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, 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 March 12, 2020, during a telephone conference conducted on the record. At the close of argument I issued a bench decision in which, after applying the requisite deferential review standard, I found that the Commissioner's determination resulted from the application of proper legal principles and is supported by substantial evidence, providing further detail regarding my reasoning and addressing the specific issues raised by the plaintiff in this appeal.

After due deliberation, and based upon the court's oral bench decision, which has been transcribed, is attached to this order, and is incorporated herein by reference, it is hereby

ORDERED, as follows:

1) Defendant's motion for judgment on the pleadings is GRANTED.

2) The Commissioner's determination that the plaintiff was not 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.

TRANSCRIPT OF PROCEEDINGS BEFORE THE HONORABLE DAVID E. PEEBLES March 12, 2020 100 South Clinton Street, Syracuse, New York

For the Plaintiff: (Appearance by telephone)

For the Defendant: (Appearance by telephone)

Hannah F. Cavanaugh, RPR, CRR, CSR, NYACR, NYRCR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8545

(In chambers, counsel present by telephone. Time noted: 11:36 a.m.)

THE COURT: Plaintiff has commenced this proceeding pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) to challenge a determination by the Commissioner of Social Security denying plaintiff's application for benefits and finding that he was not disabled at the relevant times.

The background is as follows: Plaintiff was born in August of 1965. He is currently 54 years old. He was 47 years of age at the time of the alleged onset of his disability on January 1, 2013. Plaintiff is approximately 5'9" in height and weighs approximately 190 pounds. He lives in a trailer alone with his 90-pound German Shepherd in Pennellville, New York. He has a truck driving license. In terms of work, plaintiff has not worked since September of 2010. He held various truck driving positions from January 2000 through September 2010. Plaintiff suffered an all-terrain vehicle accident in 2006.

Physically, he suffers from several diagnosed conditions: Neck pain, including in his shoulders; lumbar pain, bad knees; prickles in his legs; COPD; tingling and numbness in his hands; Raynaud's phenomenon; a clotting disorder; peripheral vascular disease; inflammatory arthritis; and undifferentiated connective tissue disease, which I will refer to as UTCD. I note that he had a heart attack in 2010 and had a stent implanted. He also underwent an SMA thrombectomy in April of 2014 by Dr. Michael Constanza and a right leg artery bypass in July of 2014, also by Dr. Constanza.

His UCTD is referenced in several of the records of Dr. Hom Neupane, who began treating the plaintiff in December of 2015. The notes of Dr. Neupane indicate that the condition is, quote, clinically stable on Plaquenil without side effects. That's at page 670 to 673 of the Administrative Transcript. Plaintiff's primary care provider is Dr. Patil Vandana. He initially saw the plaintiff on December 4, 2013. At the time, the plaintiff, at that initial encounter, asked that Dr. Vandana prepare a disability form on his behalf. The doctor declined.

He also has seen, as I indicated, Dr. Neupane at the Upstate Medical Center and has seen physicians at Upstate Orthopedics. He has also seen Dr. David Churchill at Hematology/Oncology Associates. He has been treated at Gastroenterology and Hepatology of Central New York and Upstate Comprehensive Pain Medicine. He was consultatively examined by Dr. Kalyani Ganesh on June 24, 2015. Dr. Ganesh issued a report with a medical source statement at Exhibit 2F.

The plaintiff has been prescribed various medications, including Nortriptyline, Lisinopril, Spiriva, Prednisone, Warfarin, Plaquenil, Coumadin, Oxycodone, Omeprazole, Nitroglycerine, and Plavix.

In terms of activities of daily living, plaintiff is able to cook, do laundry, do some walking of his dog, shower, and dress. Plaintiff is a smoker. He has smoked for 30 years. He has smoked between a half and two packs of cigarettes per day against medical advice. That's at page 52. There's also occasional marijuana use indicated in the records.

Procedurally, plaintiff applied for Title II disability insurance benefits on February 9, 2015, and Title XVI Supplemental Security Income benefits on February 25, 2015. In both, he alleged an onset date of January 1, 2013. At page 240, he claims the following in support of his application for disability benefits: COPD, heart attack, two crushed discs in back, hypertension, hyperlipidemia, coronary artery disease, peripheral artery disease, peripheral artery bypass in right leg and abdomen.

A hearing was conducted by Administrative Law Judge Roxanne Fuller on February 27, 2017, to address plaintiff's application for benefits. Judge Fuller issued a decision on June 22, 2017, finding that plaintiff was not disabled at the relevant times and therefore ineligible for the benefits sought. That became a final determination of the agency on August 6, 2018, when the Social Security Administration Appeals Council denied plaintiff's request for a review.

In her decision, ALJ Fuller applied the familiar five-step sequential test for determining disability. She noted that the last date of insured status for the plaintiff was December 31, 2015. She then went on to find at step one that plaintiff had not engaged in substantial gainful activities since his alleged onset date of January 1, 2013.

At step two, she concluded that plaintiff suffers from severe impairments that impose more than minimal limitations on the ability to perform work-related functions, including coronary artery disease, chronic obstructive pulmonary disease or COPD, degenerative disc disease of the lumbar spine, and carpal tunnel syndrome.

At step three, she concluded that plaintiff's conditions do not meet or medical equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.04, 3.02, and 4.04.

Next, the Administrative Law Judge concluded that plaintiff can retain the residual functional capacity to perform light work with various limitations — one of which I didn't understand — that she can never perform foot control operation with both hands; is limited to only occasional climbing of ramps or stairs; only occasional climbing of ladders, ropes, or scaffolds; is limited to occasional balancing, stooping, crouching, kneeling, or crawling; is limited to frequent fingering, that is fine manipulation with both hands; can frequently handle objects, that is gross manipulation with both hands; is limited to occasional exposure to moving mechanical parts; occasional operation of a motor vehicle; and occasional exposure to unprotected heights; is limited to occasional exposure to irritants, such as fumes, odors, dusts, and gases; and is limited to occasional exposure to poorly ventilated areas and occasional exposure to chemicals.

At step four, the Administrative Law Judge concluded that plaintiff is unable to perform his past relevant work due to the exertional requirements associated with that work.

At step five, she noted initially that if plaintiff were capable of performing a full range of light work, the Medical-Vocational Guidelines, or the grids, would direct a finding of no disability under Grid Rule 202.18. After noting that there were additional limitations that required the testimony of a vocational expert, which was elicited at the hearing, ALJ Fuller concluded that plaintiff is capable of performing available work in the national economy, including as a cashier, a retail marker, and a dining room attendant, and was therefore not disabled.

As you know, my task is limited. The test that I apply is extremely deferential. The Court must determine whether correct legal principles were applied and the result is supported by substantial evidence. As the Second Circuit noted in Brault v. Social Security Administration, 683 F.3d 443, from the Second Circuit, 2012, it is an extremely exacting standard, more rigid than the clearly erroneous standard. Substantial evidence is defined as such evidence as a reasonable mind might accept as adequate to support a conclusion. It was noted in Brault, also, that this means that once an ALJ finds facts, they can be rejected only if a reasonable factfinder would have to conclude otherwise.

In this case, the contentions of the plaintiff are limited to the failure at step two and beyond to consider plaintiff's diagnosed UCTD and the effects that that had on the analysis of plaintiff's subjective statements concerning his symptoms, what we used to call the credibility analysis. As a backdrop, I note it is plaintiff's burden to show any limitations resulting from diagnosed medical conditions through the RFC and step four under Poupore. And I'll also note that the mere diagnosis of a condition is not the central focus of the disability analysis, it is the resulting limitations that flow from any diagnosed medical condition.

In this case, I understand UCTD, it is an autoimmune disease not vastly different than fibromyalgia, and so it does not always manifest itself in objective tests such as magnetic resonance imaging testing and so forth. The condition was diagnosed by Dr. Neupane, who began treating plaintiff in December of 2015. And therefore after plaintiff made his application for disability benefits and after Dr. Ganesh examined the plaintiff in June of 2015, the plaintiff claims error at step two.

It's clear that the governing regulations provide an impairment or combination of impairments is not severe if it does not significantly limit claimant's physical or mental ability to do basic work activities, 20 C.F.R. Section 404.1521(a). The section goes on to describe what is meant by the phrase basic work activities to include the abilities and aptitudes necessary to do most jobs.

The test at step two unquestionably is de minimis and intended to weed out only truly the weakest of cases, but I'll reiterate, the mere presence of a disease or impairment or establishing that a person has been diagnosed or treated for a disease or an impairment is not in and of itself sufficient to establish a condition as severe, Coleman v. Shalala, 895 F.Supp. 50 at 53 from the Southern District of New York, 1995.

In this case, it's clear that the plaintiff did suffer from a condition, specifically UCTD. It had been diagnosed apparently — the plaintiff attributes his pain, based on medical records, to that condition. I will assume for the sake of argument that that is true, that the plaintiff has sustained his burden of establishing not only the existence of the condition, but that the pain that he experienced flowed from that condition and, therefore, the failure to reference it at step two was error.

I find, however, that the error was harmless. It's well established that if there is a finding of any impairment at step two that is severe and the sequential analysis continues, there's no error as long as the symptoms associated with the condition are considered by the Administrative Law Judge. In this case, the plaintiff alleged that his back and leg pain precluded work. That's at pages 45 to 47 and 58 of the Administrative Transcript. The Administrative Law Judge considered his allegations of pain.

The so-called credibility analysis or the two-step analysis of plaintiff's subjective complaints was not infected in this case because the Administrative Law Judge did find the existence of medically determinable physical or mental impairments that could reasonably be expected to produce the pain or symptoms, even though it was not specifically articulated to be the UCTD, and the Administrative Law Judge went on to engage in the requisite analysis considering plaintiff's treatment, conservative treatment, activities of daily living, specifically referencing the medical records of Dr. Vandana and — who she refers to as Dr. Patil, but I think that's his first name — and also the consultative examination of Dr. Ganesh.

The records of Dr. Neupane — as I indicated previously, the records from Dr. Neupane indicate that plaintiff's UCTD is clinically stable on Plaquenil. The ALJ considered the use of Ibuprofen and no treatment for his back prior to December of 2013, the fact that there isn't any indication that he saw any specialists, X-rays and MRI results were modest. I understand that that necessarily doesn't preclude a finding that UCTD could cause pain, but the exam of Dr. Ganesh and his findings with regard to pain, range of motion, and so forth, support the residual functional capacity and specifically the exertional requirements.

The opinions of Dr. Ganesh were credited, although ALJ Fuller did add additional limitations beyond what Dr. Ganesh found in his medical statement to address plaintiff's COPD and carpal tunnel syndrome. The Administrative Law Judge also considered plaintiff's allegations of pain and fatigue at page 33 and 34 of the Administrative Transcript.

So I find that plaintiff failed to meet the stringent standard of Brault and its progeny and that the RFC in this case is supported by substantial evidence. I find that the Commissioner carried his burden at step five by relying on the testimony of a vocational expert to determine the existence of jobs in the national economy that plaintiff was cable of performing. I will therefore grant judgment on the pleadings to the defendant and dismiss plaintiff's complaint.

This was a fascinating case and I appreciated the oral arguments on both sides. It was very helpful to the Court. I hope you all have a good afternoon.

MS. MERRITT: Thank you, your Honor.

MS. CRAWFORD: Thank you, your Honor.

(Time noted: 11:54 a.m.)

CERTIFICATE OF OFFICIAL REPORTER

I, HANNAH F. CAVANAUGH, RPR, CRR, CSR, NYACR, NYRCR, Official U.S. 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.

Dated this 13th day of March, 2020.