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), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on July 21, 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.

Transcript of a Decision held during a Telephone Conference on July 21, 2016, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

THE COURT: All right. Very good. I'll have to let that be the last word.

I have before me a request for judicial review of an adverse determination of the Commissioner under 42 United States Code Section 405(g). The background is as follows:

Plaintiff was born in August of 1954 and is currently 61 years old, was 53 years old at the date of her alleged onset of the disability. She's married and lives in Rome, New York with her husband. She has a high school degree or diploma and has taken one year of college courses. She drives. She, for 21 years, served as a licensed insurance agent and broker. She was laid off in May of 2008, which is coincidentally the date she alleges her disability onset occurred. She was laid off due to downsizing. She drew unemployment. She looked for work until shortly after her unemployment insurance ended. She's not worked since May of 2008.

She suffers from irritable bowel syndrome and Crohn's disease, that was diagnosed more than 10 years ago. She also suffers from gastroes — esophageal reflux disease or GERD. She has a history of GERD, she suffers from asthma and allergy and depression and anxiety. Her primary care provider is Dr. Brian Alessi, A-l-e-s-s-i. For mental health she has seen Dr. Minhaj Siddiqi, M-i-n-h-a-j, Siddiqi, S-i-d-d-i-q-i, and for her Crohn's disease, her specialist is Dr. Ajay, A-j-a-y, Goel, G-o-e-l. She has at various times been prescribed Cymbalta, Abilify, Xanax, BuSpar, Wellbutrin, Evista, Singulair, Zyrtec, and Klonopin.

She procedurally applied for benefits under Title II of the Social Security Act in August of 2011. A hearing was conducted by Administrative Law Judge F. Patrick Flanagan who rendered an adverse decision on December 13, 2012. That decision was vacated and the matter was remanded by the Social Security Administration Appeals Council on February 7, 2014. A second hearing was conducted by ALJ Flanagan on July 22, 2014. ALJ Flanagan issued a decision on August 27, 2014. The Social Security Administration Appeals Council denied plaintiff's request for review of that determination on February 12, 2015, making the ALJ's decision a final determination of the agency.

In his second decision, ALJ Flanagan applied the familiar five-step sequential test for determining disability, concluded that plaintiff had not engaged in substantial gainful activity from the time of her onset until the time that her insured status ended on December 31, 2013; found at step 2 that plaintiff suffers from severe impairments including IBS/Crohn's disease (in good control), GERD, asthma, depression, and anxiety.

At step 3, he concluded that the plaintiff's conditions did not meet or equal any of the listed presumptively disabling conditions set forth in the regulations.

After surveying the evidence, ALJ Flanagan concluded that plaintiff retains the RFC to perform less than a full range of light work. Specifically he found she can lift and/or carry and push and pull 20 pounds occasionally, 10 pounds frequently, stand and/or walk six hours and sit six hours in an eight-hour workday. She also must avoid concentrated exposure to fumes, gases, cold temperatures below 65 degrees, smoke or dust-filled environments.

Mentally, he found that she cannot perform fast-paced, although it says "faced" in the decision, production work, and could not do work involving responsibility for the safety of others, negotiation, persuasion, or confrontation with others. Otherwise, she can deal with normal productivity and can relate to supervisors, coworkers, and the public.

Applying that residual functional capacity, the ALJ concluded that plaintiff is not able to perform her past relevant work. After surveying the grids and concluding that if she were able to perform light work, Rules 202.15 and 202.07 would direct a finding of no disability.

He, however, elicited testimony from a vocational expert and concluded that plaintiff is capable of performing in three positions where there is work available in the national economy, including as a policyholder information clerk, a claims clerk 2, and an outside industry insurance industry order clerk, therefore, concluded that the plaintiff is not disabled.

As you know, my task is to determine whether the findings of the administrative law judge are supported by substantial evidence and correct legal principles were applied. It is a highly deferential standard.

First with regard to the argument that the record was not fully developed and that the gastroenterologist should have been recontacted, obviously there is a requirement imposed on the Commissioner and the ALJ as the Commissioner's designate to develop a complete medical history and if gaps exist, to develop the record more fully. And that obligation exists even in cases where the plaintiff has the benefit of legal counsel.

In this case, I do not find that there were any gaps. It is the plaintiff's burden to establish disability at steps 1 through 4, or a basis for disability, I should say. The plaintiff was questioned at both hearings about her having to take two to six restroom breaks per day. She did not specify other than to say that the duration varied. I cannot imagine that recontacting her gastroenterologist would have shed light on how long it would take her at each of those breaks. So I do not find that there was a critical gap and a failure to develop the record.

The issue of transferability is very interesting and I enjoyed looking into it and learning more about the distinction between traits or aptitudes and skills when it comes to transferability because this is one of the few cases that I've seen frankly where transferability is pivotal. And I found most helpful the Social Security Ruling 82-41. It defines a skill as follows: A skill is knowledge of a work activity which requires the exercise of significant judgment that goes beyond the carrying out of simple job duties and is acquired through performance of an occupation which is above the unskilled level (requires more than 30 days to learn). It is practical and familiar knowledge of the principles and processes of an art, science, or trade combined with the ability to apply them in practice in a proper and approved manner. This includes activities like making precise measurements, reading blueprints, and setting up and operating complex machinery. A skill gives a person a special advantage over unskilled workers in the labor market. And it goes on to describe how skills are gained.

I reviewed carefully the Second Circuit's decision in Draegert v. Barnhart, and also the Second Circuit's decision in Lamorey v. Barnhart, which I believe was also cited, and I am unable to conclude that the skills that were identified by the vocational expert are not truly skills when it comes to considering transferability.

At page 47 as was indicated, the vocational expert identified as skills customer service and basic clerical-oriented skills, business clerical, and also obviously an understanding of the insurance, insurance policy. When he identified the three jobs that exist that plaintiff is capable in his view of performing, he went on to indicate how those skills would relate to each.

For example, with regard to policyholder information clerk, he stated the individual's understanding of insurance, specifically with her broker background and the customer service skills, would transfer directly into this type of work.

When he was dealing with the second position, claims clerk 2, he indicated the skills that would transfer to that position again would be the individual's customer service skills and an understanding of the insurance industry along with her clerical skills from the job she performed as an insurance agent.

With regard to the third position, he felt that her skills obtained as a customer service individual working on the telephone would transfer directly to that job as order clerk.

So I do not find any flaw or error with regard to transferability.

The third issue raised by the plaintiff is credibility, and the administrative law judge correctly applied the two-step credibility test.

First, looking to whether the objective clinical evidence demonstrated an impairment that could reasonably produce the pain that is, or symptoms that are testified to, and then secondly, considered the various activities — I'm sorry, the various factors in determining what extent of credibility to attribute to the plaintiff's testimony, and I think I already indicated that I've reviewed carefully the administrative law judge's decision and credibility assessment and I find that it does meet the requirements of the applicable regulations.

So in sum, I will grant judgment on the pleadings to the defendant, affirm the Commissioner's determination, and order dismissal of plaintiff's complaint.

Thank you both for excellent presentations, it was an interesting case, and I hope you have a good summer.

MR. WICKLUND: Thank you, your Honor.

MR. FATMI: Thank you so much, your Honor.

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.