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), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on August 20, 2014, 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 a Decision held by teleconference on August 20, 2014, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

(The following is an excerpt from the telephone conference held on 8/20/14.)

(In Chambers, Counsel present via telephone.)

THE COURT: All right. I'll have to let that be the last word. So I appreciate excellent briefings and excellent oral argument in this case, it's a very interesting case and I found it to be very challenging, and I carefully reviewed the record in the context of the parties' submissions.

By way of background, the plaintiff in this case was born in December of 1971 and is currently 42 years of age, he was 40 at the time of the administrative hearing in this case. He suffers from a severe intellectual impairment and a physical impairment, specifically pars defect at L5 of the lumbar spine. He lives in Binghamton. He's married, he lives with three of the four children. They're extremely young. He has a ninth grade education, attended special education classes, has a checkered education history and was unable to secure his GED.

He last worked in 2010 for a trash company. Before that he held various jobs including between 2000 and 2008 working for the Southern Tier Block, a construction operation. He was fired from his last job because he did not call in, or because he did call in, the record is somewhat equivocal at page 42.

He has a history of alcohol and cocaine abuse in the past although it appears to be in remission. As counsel indicated, he did have a driver's license at one point but it appears that he lost that driver's license due to some driving while intoxicated charges.

There is not a great deal of treatment history in the record. It consists primarily of consultative both examining and nonexamining source consultative reports. There is an MSW report from Carol Kuklis, November 17, 2010, examining reports from Dr. Sara Long who is a PhD, and Dr. Datta, both from May of 2011. There is a report by T. Harding, a state consultant from June 1, 2011, a physical RFC from a state agency consultant B. Talbert from June 2011, and a report of plaintiff's engaged orthopedic expert, Dr. Irwin Rosenberg, from July of 2012.

Procedurally, the plaintiff applied for Supplemental Security Income and Disability Insurance benefits in March of 2011 alleging an onset date of July 31, 2010. After those, after those applications were initially denied, the hearing officer, or administrative law judge, F. Patrick Flanagan, was appointed and conducted a hearing in August of 2012. Judge Flanagan rendered a decision in September of 2012, denying the claim and finding that the plaintiff was not disabled. That determination became a final determination of the agency when the Social Security Administration appeals council denied review of that decision on August 28, 2013.

In his decision, ALJ Flanagan found that the plaintiff was insured, at least through September 2013, he had not engaged in substantial gainful activity since his alleged onset date. He suffers at step 2 from two severe impairments, borderline intellectual functioning as well as a learning disability and pars defect at L5. He found, however, that none of the conditions either individually or collectively met or equaled any of the listed presumptively disabling disabilities in the regulations. He considered 1.05 which relates to the spinal condition as well as 12.02 and 12.05 relative to his mental impairments.

The ALJ then determined after surveying the evidence that the plaintiff retains the residual functional capacity or RFC to lift and/or carry 20 pounds occasionally, 10 pounds frequently, sit for six hours in an eight-hour day and stand and/or walk for six hours in an eight-hour day. He found further that he is able to stoop, twist, and bend frequently but not continuously; is able to push and pull 20 pounds occasionally and 10 pounds frequently; is able to follow and understand simple directions and instructions; is able to perform simple tasks independently; can maintain attention and concentration; can maintain a regular schedule; can learn new tasks; can relate adequately with others; and can manage stress adequately, which is essentially the ability to perform somewhat less than a full range of light work.

The — at step 4, the ALJ concluded that plaintiff was unable to perform any of his past relevant work and applying Rule 202.17 of the grids, concluding that the impairments that plaintiff experiences do not significantly affect the job base upon which the grids are predicated, concluded no disability.

Addressing first the interesting issue of Section 12.05(C) of the — of the listings, clearly the plaintiff satisfies the IQ requirements here, also satisfies the additional prong of having a further physical or mental impairment that would qualify at step 2 of the analysis, that would be his pars defect. As the Second Circuit has recognized though 12.05(C) in Talavera v. Astrue, also requires consideration of whether the, whether the plaintiff suffers from cognitive defects, and adaptive defects that is at — adaptive functioning defects. The ALJ went through a pretty, what I would consider good analysis. The — clearly the plaintiff went through special education courses and under Marmer and other cases, that weighs in favor of perhaps finding a deficit in adaptive functioning, but as defendant argues, there are many other indicators that the plaintiff is able to function adequately. He cares for three young children by his own account and by accounts given to others including Dr. Datta. He is able to cook twice a week, cleans twice a week, does laundry once a week, he takes care of the children, he showers, he dresses himself, he watches television, he's able to rebuild PS2 or Play Station 2 computers. Dr. Harding indicated that plaintiff is not able to meet or — any of the listings and that provides further support, evidentiary support for that conclusion. Dr. Long indicated that plaintiff has good social skills. Recounted also his daily activities and indicated that he is well oriented, that is at page 290 and 291 of her report. The record also indicates at page 254 from Social Worker Kuklis that the plaintiff is comfortable with his peers and in social settings. He has worked. In fact, he indicated at page 60 of the record that he believes he can work, that there are some jobs out there he can perform.

So, although I reviewed very carefully the Eastern District's decision in Marmer, it appears that that is significantly distinguishable. The impairments at Marmer, of Marmer were considerably more severe. In Marmer, the plaintiff suffered from — have to give me a moment here — considerable defects that go beyond just the special education that is evident here.

So I find that the Commissioner's decision concerning the listing 12.05(C) is supported by substantial evidence. The issue really is not whether I would have reached the same conclusion or a court in general would have, it is whether the decision reached is supported by substantial evidence, substantial evidence of course being defined as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion, and in this case, the ALJ's decision is supported by substantial evidence on that issue.

Point two which we really didn't discuss was whether or not the ALJ properly considered plaintiff to suffer from a psychiatric impairment based on, primarily upon his educational records, and I find that the plaintiff has not carried his burden of demonstrating the existence of such an impairment that would meet the requirements at step 2. I don't find any error in that regard. Obviously pivotal to the ALJ's decision is the RFC finding. I conclude that that RFC is supported by substantial evidence, primarily in the form of Dr. Datta's report when it comes to the physical attributes and Dr. Long's report in that he properly chose and explained why he chose Dr. Datta's report over Dr. Rosenberg's. Both are nontreating sources. Granted Dr. Rosenberg has an area of expertise that perhaps Dr. Datta does not, but Dr. Datta's report is certainly supported by his findings after having examined the plaintiff. Dr. Rosenberg's report seems to contradict even plaintiff's own testimony in several important regards.

The — turning to the argument that a vocational expert's opinion should have been sought, I find under SSR 85-15 and Bapp v. Bowen that the job base upon which the grids are predicated were not sufficiently eroded to require a vocational expert's testimony. There does not seem to be any per se rule in a borderline intellectual functioning case that would require expert testimony, and the DeLeon case from the Second Circuit that was relied upon by the plaintiff is materially distinguishable. It involved a plaintiff with cerebral palsy with a psychiatric disorder, epilepsy with organic brain syndrome as well as borderline intellectual functioning and physical problems and deformities, much more serious case than Mr. Bosket presents.

So having reviewed carefully the record, I conclude that the Commissioner's decision is supported by substantial evidence and resulted from the application of proper legal principles.

I thank you both for excellent arguments. I will grant judgment on the pleadings to the defendant and issue an order shortly memorializing this decision. Thank you both and have a great day.

MR. ABRAHAM: Thank you, your Honor.

(Proceedings adjourned, 10:40 a.m.)

CERTIFICATE OF OFFICIAL REPORTER

I, JODI L. HIBBARD, RPR, CRR, CSR, Federal Official Realtime 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.