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) and 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 9, 2018, 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.

Transcript of a Decision held during a Telephone Conference on August 9, 2018, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

(In Chambers, Counsel present by telephone.) THE COURT: Okay, I'll have to let that be the last word.

I have before me a request for a judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Section 405(g) and 1383(c)(3).

The background is as follows: The plaintiff was born in November of 1962, she's currently 55 years of age. She is separated and lives alone in Carthage, New York. Plaintiff has a high school diploma and has taken two years of college courses. She has no driver's license. She is right-hand dominant. She is 5 foot 2 inches in height and weighs 150 pounds. She has several cats and changes five litter boxes daily to accommodate her pets.

Physically, plaintiff was born with one kidney. She has been treated for chronic kidney disease, originally stage 3, now characterized as stage 4. To put that in perspective, a stage 5 chronic kidney disease patient would require dialysis. She requires a stent replacement one time per year. Generally speaking, her condition is stable and I believe she characterized it as such at page 427 and 428.

She has several treatment providers including Dr. Jocelyn Beane of the Family Medical of Carthage appears to be her primary care provider. She also sees FNP Kathy Der at that office, approximately every three months. She treats with Nephrology Associates including Dr. Hongalgi and Khalid Sindhu as well as FNP Erin Birchenough. Her surgeon who does her stent replacements is Dr. Oleg Shapiro who practices at University Hospital here in Syracuse. Plaintiff also has been treated for neck and lower back pain, including through Pain Solutions of Northern New York, Dr. Bhupinder Bolla. She receives injections in her neck. She has suffered in the past deep vein thrombosis and has been on Coumadin. She also complains of arthritis in her arms and legs, back, hands, and feet.

The plaintiff last worked in November of 2009 two to three times per week for five months at a Nice N Easy convenience store. Prior to that she had several places of casual employment. Her employment history is at 137 of the administrative transcript.

In terms of daily activities, she mows lawn, her lawn, uses the computer, watches television, cooks, cleans, does dishes, does crossword puzzles, laundry, and takes care of her pets.

The case has a tortured procedural history dating back to her application for Supplemental Security Income payments in July of 2010 alleging an onset date of March 24, 2010.

A hearing was conducted on July 5, 2011 by Administrative Law Judge Bruce Fein who issued a decision unfavorable to the plaintiff on August 13, 2011. The Social Security Administration Appeals Council denied review of that determination on October 2, 2012. The matter was then brought into this court by the claimant and ultimately was remanded pursuant to a consent order on April 17, 2013 for further proceedings.

The Social Security Administration Appeals Council vacated Judge Fein's decision on August 5, 2014. Judge Fein held a second hearing on January 29, 2014, and issued another unfavorable decision on September 24, 2014.

The Social Security Administration Appeals Council issued a decision on January 29, 2016, vacating that determination and remanding the matter for consideration by another administrative law judge. In its decision at page 483 and 484 of the administrative transcript, the Appeals Council directed the new administrative law judge to give further consideration to the treating source opinion of Dr. Sindhu and to the opinions of Dr. Coleman, required the evaluation of the opinion of FNP Der, required the ALJ to rule on the claimant's objections to Dr. Coleman's opinions, and fourthly, if warranted by the expanded record, obtain evidence from a vocational expert to clarify the effect of the assessed limitations on claimant's occupational base.

ALJ Barry Ryan, to whom the matter was subsequently assigned, held a hearing on June 7, 2016, and on July 8, 2016, issued another unfavorable opinion. That became a final determination of the agency on August 14, 2017 when the Appeals Council denied review of that determination.

In his decision, ALJ Ryan applied the familiar five-step test for determining disability.

At step one, concluded plaintiff had not engaged in substantial gainful activity since her alleged onset date.

At step two, concluded that plaintiff does suffer from severe impairments, including congenital loss of right kidney, hydronephrosis remaining left kidney, deep venous thrombosis controlled by Coumadin, and chronic renal insufficiency.

At step three, he concluded that plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions in the Commissioner's regulations.

In terms of an RFC, after surveying the medical evidence, ALJ Ryan concluded that plaintiff retains the RFC to perform a full range of light work, and with no identified postural, communicative, environmental, or other work limitations.

Applying that RFC at step four, the ALJ concluded that plaintiff has no past relevant work, and then applying the Medical Vocational Guidelines or Grids contained in the regulations, concluded that a finding of no disability was directed by Grid Rule 202.20 and therefore plaintiff was not disabled at the relevant times. And when I say relevant times, I agree with the Commissioner, that although plaintiff may well now qualify for benefits, the relevant period is from the time of her application for benefits since this is an SSI case, from July 13, 2010 to the date of the administrative law judge's determination on July 8, 2016.

As you know, the standard of review is very deferential. I must determine whether correct legal principles were applied, and the hearing — the ALJ's decision is supported by substantial evidence.

In terms of treating source, I agree that opinions of Dr. Sindhu at 1021 and FNP Der at 1445 and 1020 were properly rejected. FNP Der is not an acceptable medical source and in any event, neither one of those contains the function-by-function opinions that a treating source that would be deemed controlling should show. Instead, they go to the ultimate issue that is reserved to the Commissioner.

In terms of whether there are gaps in the record, first of all, it is clear that it is plaintiff's burden through step four to show work-related limitations resulting from her medical conditions. The plaintiff's counsel suggested that the record was closed and declined the opportunity to submit additional materials, that's at page 452. Moreover, the records show that plaintiff's condition was stable, she admitted that in her testimony. I have — she undergoes yearly stent replacement, but beyond that, according to Dr. Coleman, she is operating at a — she has remained remarkably stable since 2000, I'm reading from 1012 of the record, her kidney function is approximately 30 to 35 percent of normal, a level very adequate to maintain good health. Although Dr. Coleman may have nephrology as a secondary area of expertise, he is an expert in that area.

The RFC is well supported by the interrogatory responses of Dr. Coleman and Dr. Rivera's consultative report which can provide substantial evidence.

The inability to cross-examine, I agree, if it is an error, and I'm not sure that it is required, is harmless because the plaintiff was given an adequate opportunity to provide cross-examining interrogatories.

I would be troubled somewhat by the statement that there is a need to be absent from work for medical appointments but there is no quantification of that, and there's no evidence in the record that would suggest that it is more than relatively infrequent. She testified that she sees her health care providers every three months and she undergoes stent replacement yearly, so there's no evidence that I could find in the record that would suggest that she would be absent to a level that would be inconsistent with gainful employment.

The conflict in the record as to how much water she has to drink and how many times she has to urinate, there was, again, no quantification of that but in any event, if there is a conflict, it is for the ALJ to resolve.

The light work finding may be inconsistent with the findings of ALJ Fein but ALJ Ryan properly regarded this de novo and, as I indicated previously, I believe his RFC determination is supported by Dr. Coleman's opinion as well as Dr. Rivera's consultative report.

In terms of credibility, an issue was raised by claimant, plaintiff testified to greater limitations although not a great amount of specifics, but the ALJ properly applied the two-step test for determining credibility.

The focus clearly in this case is on the kidney and as I indicated during oral argument, I have carefully reviewed the medical records, including from Dr. Shapiro, Dr. Jocelyn Beane and FNP Der, Dr. Hongalgi, and FNP Birchenough. They all seem to indicate and confirm plaintiff's statement that her position — her condition is stable. Dr. Beane and FNP Der, for example, on August 15 — August 25, 2015 report states no physical disability, activities of daily living normal, that's at 1415. On September 17, 2014, a similar entry, that's at 1361. Dr. Hongalgi on November 20, 2013 characterized plaintiff as having a stable kidney function, that's at 977. FNP Birchenough on several occasions referred to the plaintiff's condition as stable at baseline, including at 1066, 1062, 1054, at — on May 18, 2015, stated that plaintiff is feeling well and stable at baseline, that's at 1068 to 1070. Again, same thing at 1072 to 74, and 1076 to 1078. So in my view, the ALJ's credibility determination was supported by substantial evidence.

In terms of vocational expert, I agree with the Commissioner that the directive of the Appeals Council was permissive — if required, call a vocational expert. There is no evidence in this case of nonexertional limitations that would significantly erode the job base, so I believe that the requirements of SSR 85-15 were met and do not require the testimony of a vocational expert.

So I am going to grant judgment on the pleadings to the defendant. I believe that the Commissioner's determination results from the application of proper legal principles and is supported by substantial evidence.

Thank you both for excellent presentations, hope you have a good afternoon.