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 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 16, 2016, 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.

THE COURT: I have before me an application for a judicial review of an adverse determination by the Commissioner. Review is sought under both Section 405(g) and 1383(c)(3) of Title 42, United States Code.

The background of this case is fairly extensive and as follows. The plaintiff was born in April of 1988 and is currently 28 years old. He was 21 years old at the alleged onset of his disability. He does have or claims to have a GED diploma, and that includes two years of BOCES course work in conservation and horticulture. He is obese. He stands 5-foot 6-inches and has weighed between 320 pounds at the first hearing and 375 pounds at the second hearing, although I did see reference to a weight of over 400 at some point in his medical records. He lives with his girlfriend and the girlfriend's family currently, or did at the time of the hearing. Does not drive.

His former work is fairly modest and limited, as counsel indicated, to working two years for the Watertown Times where his mother was his supervisor. It was a part-time position. And he was fired from the job. He also worked as a stock man and front-end cart pusher at Walmart for thirty hours. He left, according to his testimony, because of issues with his ankle.

He has physical issues including those related to the chest, lower back, ankles, his obesity, a hiatal hernia and tremors. Mentally he suffers from considerable limitations and conditions variously described as depression, anxiety, ADHD, and bipolar disorder. His mental health treatment dates back at least to November of 2009 where he sought treatment at the Gouverneur Health Clinic. He has had several periods of hospitalization. In December of 2009 he was involuntarily committed. At that point the trigger appears to have been that he heard that his mother and stepfather were intending to shoot the horse that he was having a relationship with. In March of 2010 he was hospitalized after a suicide attempt and discharged later in stable condition. In April of 2010 he was again hospitalized with increased depression, and later yet again in April of 2010 for an Ambien overdose.

He was yet again hospitalized in January and early February of 2011 with suicidal ideations. In West Virginia, apparently in February of 2011, he was hospitalized for a week, although the record is unclear as to that hospitalization and its cause. He was hospitalized in May of 2011 involuntarily, but discharged with a GAF of between 50 and 55 after showing improvement.

He spent one night where he self presented in June of 2011. At that point despite hospitalization he denied suicidal ideation. He was hospitalized involuntarily in July through early August of 2011. He was taken there by his therapist after expressing suicidal ideation. Yet again hospitalized in January for four days, 2012, for suicidal and homicidal thoughts. He was taken there by the police after expressing those thoughts.

He has treated with a therapist who he has seen over 100 times, and by psychiatrist Dr. Elizabeth Pierson.

He has been on various medications including Abilify, Celebrex, Ambien, Xanax, Neurontin, Trazadone, Strattera, Gabapentin, Nexium, Loratadine and Atenolol.

Procedurally, the plaintiff applied for Title II and Title XVI benefits in August of 2010, alleging a disability onset date of April 15, 2009. A hearing was conducted by Administrative Law Judge Elizabeth Koennecke on December 12, 2011. Judge Koennecke issued a decision on March 1, 2012. The Social Security Administration Appeals Council denied review of that determination on May 20, 2013.

Plaintiff commenced an action in this court. The action was terminated based on a stipulated remand of the matter. That was followed by Social Security Administration Appeals Council order on July 29, 2014. A hearing was again conducted by ALJ Koennecke on December 3, 2014. ALJ Koennecke issued a decision on January 13, 2015, and that decision became a final determination of the Agency on August 6, 2015, when the Social Security Administration Appeals Council denied review.

In her second decision ALJ Koennecke applied the familiar five-step sequential test for determining disability, concluded that plaintiff was insured through September 30, 2010. He had not engaged in any substantial gainful activity she found since the alleged onset date of April 15, 2009.

She found at step two that the plaintiff suffered from several severe impairments limiting his ability to perform work functions, including a mental impairment that has been variously characterized, as she stated. The decision goes on to indicate that the mental impairment has been described by professionals as paraphilia/zoophilia sexual disorder, history of attention deficit hyperactivity disorder, depressive disorder, affective disorder, personality disorder, and bipolar disorder.

ALJ Koennecke concluded that the plaintiff's impairment did not meet or medically equal any of the listed presumptively disabling conditions, including specifically 12.04 of the listings, because in her view plaintiff's condition did not meet the B criteria of that listing.

She then went on to conclude that despite his conditions, plaintiff retains the residual functional capacity to lift and/or carry 50 pounds occasionally, 25 pounds frequently, sit for six hours in an eight-hour day, stand for six hours in an eight-hour day, and walk for six hours in an eight-hour day. She concluded the claimant should not work in a job where he has access to animals. He retains the ability to understand and follow simple instructions and directions, perform simple tasks with supervision and independently, maintain attention and concentration for simple tasks, regularly attend to a routine and maintain a schedule, relate to and interact with others to the extent necessary to carry out simple tasks, handle reasonable levels of simple work-related stress, in that he can make occasional simple decisions directly related to the completion of tasks in a stable, unchanging work environment. And that she concluded was consistent with the ability to perform less than a full range of medium work.

At step four the ALJ concluded that plaintiff is incapable of performing any of his past relevant work. She noted that if the grids were applied, a finding of no disability would be required. She noted, however, that because of the erosion of the job base on which the grids are predicated, testimony from a vocational expert was elicited. With the assistance of that testimony, ALJ Koennecke concluded that plaintiff can perform as a kitchen helper, hand packager and cleaner, three positions that are unskilled at the medium exertional level.

She went on to conclude that even if he were relegated to sedentary work, he could still perform as an order clerk, waxer and addresser. And, therefore, concluded that plaintiff was not disabled at the relevant times.

Obviously, the standard of review that I must apply is extremely deferential. The issue is not whether I think that the plaintiff can and should be able to perform work in the national economy, it is whether the decision is the result of the application of correct legal principles and supported by substantial evidence.

First with regard to listing 12.04, the ALJ concluded that the B criteria were not met, and I find that that determination is supported by substantial evidence.

Taking the last first, episodes of decompensation is defined under listing 12.00C4, and that regulation provides in relevant part that the term, "repeated episodes of decompensation, each of extended duration," in these listings means three episodes within one year or an average of once every four months, each lasting for at least two weeks. I did note earlier that there are decisions, and I cited a couple, that suggest that even if that is not strictly met, there could be a finding of episodes of decompensation as required in the listing.

I don't think that even with plaintiff's extensive history of hospitalization, that that listing, that portion of the B criteria, could be met, but even if it could, it still would require a finding of marked limitation in one of the remaining areas of the listing, including concentration, persistence and pace, social functioning and daily living.

And the ALJ's determination in those regards was supported by substantial evidence, including Dr. Noia's consultative report, the review conducted by Dr. Bruni, plaintiff's daily activities, including the daily activities that he testified to during the two hearings and told his consultative examiners of his work activity, the fact that his therapist was encouraging him to work and to find work, memory and concentration. Even Dr. Pierson, his treating psychiatrist, indicated he had only moderate limitations in understanding and remembering short simple instructions, carrying out short simple instructions, understanding and remembering detailed instructions.

So getting back to the repeated episodes of decompensation, the ALJ very carefully considered each period of hospitalization and found that the definition was not met, and I find that that is supported by substantial evidence.

So the next issue raised is whether the residual functional capacity finding was supported by substantial evidence. Specifically whether the rejection of Dr. Pierson's opinions as controlling was proper and properly explained. ALJ Koennecke went through and carefully showed that Dr. Pierson's notes and the notes of the therapist showed improvement on the part of the plaintiff, showed his ability to pursue educational and work opportunities. Indicated that he was going to VESID. The therapist encouraged the plaintiff to undertake vocational training and education and to look for a job.

There was an indication that the record may have been incomplete and there should have been recontact, but I've reviewed this record and I do not find any gaps that required either recontacting treating sources or new consultative exams. So I understand the arguments of plaintiff, I understand the concern of staleness, but I do believe that the determination of the Commissioner is supported by substantial evidence. So I will grant judgment on the pleadings to the defendant. Thank you both for excellent presentations. Hope you enjoy the rest of your summer.

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