ORDER
DAVID E. PEEBLES, Chief Magistrate Judge.
Currently pending before the court in this action, in which plaintiff seeks judicial review of an adverse administrative determination by the Acting Commissioner of Social Security, pursuant to 42 U.S.C. § 405(g), are crossmotions for judgment on the pleadings.2 Oral argument was heard in connection with those motions on August 29, 2017, 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 Acting 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 Acting 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.
DECISION
THE COURT: I have before me a request for judicial review of an adverse determination by the Acting Commissioner of Social Security pursuant to 42, United States Code, Section 405(g). The background is as follows.
The plaintiff was born in August of 1954. She is currently 63 years old, was 60 at the time of the hearing in this matter, and 56 at the time of her alleged disability onset.
She lives with her husband in Plattsburgh and four grandchildren ranging in ages at the time of the hearing from 11 to 18. She spends from November to April in Florida. She has a ninth grade education. She has a driver's license and drives approximately two times per week. She is right hand dominant.
She last worked in June of 2011 as a school bus driver in a position she had held for 23 years. In June of 2011 she retired. It was a planned retirement.
When she applied for disability benefits, she alleged, at page 129, that she suffered from diabetes, which was actually diagnosed seven years before the 2014 hearing, and that includes low sugar spikes, obesity, high blood pressure/hypertension and high cholesterol. She treats for her diabetes with endocrinologist Dr. C. Alexander-Decker.
She has also in the past received some treatment for cervical and lumbar back pain, including from Christopher Benoit, a chiropractor. She received some sort of Workers' Compensation treatment from April 2005 until April 2010, when she was released after her condition had improved, and it was indicated that she was working with no disability. That's at page 632. It also indicated that she did undergo treatment for low back complaints between June 2006 and July 2006, approximately four times.
In terms of her back pain, however, she told Dr. Wassef that she had not discussed her lower back pain with her primary care provider, Dr. Tracy Orkin, D.O., and she denied back pain to Dr. Orkin in October 2017. That's at page 611 and also at 615.
She has suffered in the past from RLS and she has been prescribed Klonopin. She reports to Dr. Wassef that she engages in daily activities, including cooking, cleaning, laundry, shopping, she takes care of her personal hygiene, watches television, listens to the radio, socializes with friends, goes camping, goes to church, walks. At page 619 and 628 it indicates that she walks sometimes a half mile. When she's in Florida she engages in community activities, goes to potluck suppers and goes to flea markets and she finds that she loses weight.
In 2011 after retiring she took her grandson to Arkansas for a fishing tournament. That's at page 378. And it is indicated that she has or at least has planned to continue as a substitute bus driver after her retirement.
Procedurally, plaintiff applied for disability insurance benefits under Title II of the Act on June 19, 2013, alleging a disability onset date of June 20, 2011, coinciding with her retirement date. A hearing was conducted on October 23, 2014 by Administrative Law Judge Michelle Marcus. ALJ Marcus issued a decision on February 6, 2015 finding that plaintiff could not establish the existence of any conditions significantly limiting her ability to perform basic functions and could not satisfy step two of the sequential tests for determining disability. Social Security Administration Appeals Council denied review on September 21, 2016.
As I indicated, ALJ Marcus issued a decision where she intended to apply the five step sequential test for determining disability, but ended the analysis at step two concluding that plaintiff did not suffer from any condition that significantly limited her ability to work or perform basic functions. And that hinged upon the rejection of a decision by the consultative examiner, Dr. Wassef, that was explained in the decision as based upon not only the medical source opinion being nonspecific but also inconsistent with musculoskeletal findings on the examination, which were normal with completely normal range of motion in lumbar spine and extremities, normal stance and gait, and ability to squat was full, and she also reported no difficulties in daily activities. That's at page 22 of the record.
As you know, my task is limited. The scope of review is extremely deferential. I must determine whether correct legal principles were applied and whether substantial evidence supports the Commissioner's determination. The Commissioner's determination became final on September 21, 2016 when the Social Security Administration Appeals Council denied plaintiff's request for a review.
First turning to the decision to reject Dr. Wassef's consultative examination opinion, that was explained, as I said, on page 22 of the record. It is well-established, including under Pellam versus Astrue, 508 F. App'x 87, that the Commissioner, even though ordering a consultative examination, is not required to accept the findings of that examination.
In this case it is clear that the medical source statement is not sufficiently specific when it uses terms like moderately limited. But more importantly, there is nothing in the objective findings of Dr. Wassef that would support the limitations that he opined. Lumbar spine shows full flexion, extension, lateral flexion bilaterally, and full rotary movement bilaterally, straight leg raise test was negative bilaterally, full range of motion of shoulders, elbows, forearms, and wrists bilaterally, and on, and on. No neurological deficits, strength 5/5 in upper and lower extremities. So there really is nothing that would support the statement, the opinions of Dr. Wassef.
So I find that the rejection is properly explained. Which leaves the question whether the lack of any medical source statement is fatal to the Commissioner's position. And the Second Circuit's decision in Monroe versus Commissioner of Social Security, and also the case relied on in that decision, Tankisi versus Commissioner of Social Security, 521 F. App'x 29, the lack of a medical source statement is not necessarily fatal if there is sufficient evidence in the record from which the Administrative Law Judge without making his own or her own medical decisions can rely.
In this case, first of all, I respectfully disagree. I don't think that the regulations require that the Administrative Law Judge recontact a consultative source. I don't find any gap in the record. Just because the consultative examiner's report was rejected, here there were extensive treatment notes from the endocrinologist and primary care provider. And as the Commissioner noted, the endocrinologist was contacted but declined to complete a medical source statement.
So the question really is has plaintiff carried her burden of demonstrating the existence of a condition that significantly limits her physical or mental ability to do basic work activities as those are defined under 20 C.F.R. Section 404.1522. Again, it is plaintiff's burden, and it is well-established under Monguer and other cases, that the mere existence of a medical condition, a diagnosed medical condition, does not equate to impairment.
The evidence in this case shows that the plaintiff worked with diabetes since 2006 or 2007. She is holding herself out as able to work as a substitute. I agree with the Commissioner that the treatment notes of the endocrinologist do not show significant deterioration and, frankly, don't show much difference between the pre-June 2011 and post-June 2011 dates.
And so I conclude that the Commissioner's determination that plaintiff has not satisfied her burden at step two is supported by substantial evidence. I will grant judgment on the pleadings to defendant and dismiss plaintiff's complaint.
Thank you both for excellent presentations. Have a good day.
