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 July 2, 2015, 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 a request for review under 42, United States Code, Section 405(g) of a partially unfavorable decision of the Commissioner. The decision, of course, is based on a decision by an Administrative Law Judge.

The background is as follows. Plaintiff was born in March of 1964 and is currently 51 years old. She was 49 years old at the time of the hearing. She is 5-foot 2-inches in height and weighs 165 pounds and qualifies as obese. The plaintiff lives in Syracuse with her 25-year-old son. She completed ninth grade and has had some job corps training.

In the past the plaintiff has worked as a line worker to November of 2007. She claims she can no longer perform in that position; she has difficulty using her hands, sitting, standing and moving her hands. The plaintiff suffers from degenerative disc disease at the cervical and lumbar levels, COPD, type 2 diabetes, which is controlled, hypertension, and dyslipidemia, which is controlled, and GERD. She treats generally with the Syracuse Community Health Center, and in addition treated for her cervical condition with Upstate Orthopedics. She underwent fusion surgery at the cervical level on June 5, 2012.

Procedurally the plaintiff applied for Supplemental Security Income payments, or SSI, on May 30, 2012, alleging an onset date of November 1, 2007. She had a prior application for both SSI and Disability Insurance Benefits from October 2009, which was denied in December of 2009. The Administrative Law Judge denied reopening that prior proceeding. A hearing was conducted by Administrative Law Judge John Lischak on October 28, 2013.

ALJ Lischak issued a decision on March 10, 2014.

The decision became a final determination of the agency when on August 23, 2014 the Social Security Administration Appeals Council denied plaintiff's request for review. The Administrative Law Judge's decision is fairly straightforward. He applied the familiar five-step test for determining disability.

At Step One he found that the plaintiff had not engaged in substantial gainful activity.

At Step Two he found that she suffers from several severe conditions, including degenerative disc disease with spinal canal stenosis, having undergone a fusion, COPD, diabetes and obesity.

At Step Three the Administrative Law Judge reviewed the listed presumptively disabling conditions set forth in the regulations that could apply and rejected those listings, including listing 1.04, 3.02 and 9.00. He also noted that there is no longer any listing for obesity but he did follow SSR 02-1p and considered any limitations associated with the obesity.

He then surveyed the available evidence and determined that the plaintiff has the residual functional capacity to perform sedentary work as defined by regulation. The claimant additionally is able to occasionally climb, balance, stoop, kneel, crouch and crawl, but must avoid concentrated exposure to respiratory irritants such as fumes, odors, dust and gases. The ALJ concluded that plaintiff is unable to perform the past relevant work based on the exertional requirements.

And at Step Five applied the grids, and in particular Rule 201.19, to conclude that until she turned 50 on March 8, just the day before her 50th birthday, March 8, 2014, was not disabled.

As you know, my task is extremely limited. I am to determine whether the Commissioner's determination is supported by substantial evidence and results from the proper application of legal principles. The term substantial evidence means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

The first argument raised is that the Administrative Law Judge's RFC determination is not supported. As I noted, there do not appear to be any treating source statements that contradict plaintiff's ability to perform the requirements of sedentary work, which are defined by regulation as, "Lifting no more than 10 pounds at a time and occasionally lifting or carrying articles like docket files, ledgers and small tools." The regulations go on to state that, "Although a sedentary job is defined as one which involves sitting, a certain amount of walking and standing is often necessary in carrying out job duties. Jobs are sedentary if walking and standing are required occasionally and other sedentary criteria are met." That regulation is at 20CFR Section 404.1567(a).

So what we're left with is competing evidence potentially, and I'm not sure that I would characterize it as competing. I agree that Dr. Ganesh stated that the plaintiff has severe limitations in the areas of lifting, carrying and so forth. I don't necessarily view those — certainly there is some ambiguity, but I'm not sure that that would be inconsistent with sedentary, the lowest exertional point, but certainly consistent with the evidence from Dr. Cross who set forth the limitations that are totally consistent with sedentary work, and Dr. Fuchs, although Dr. Fuchs opined that the plaintiff could actually perform light work.

This case is not like Bender, which is a case that was cited by the plaintiff. In that case the Administrative Law Judge set aside the opinions of two consulting examiners in favor of a non-examining consultant. I think this is a different situation here because I don't think that Dr. Ganesh's, who was the examining, is squarely contrary to the non-examining.

I note also that I reviewed very carefully, as I said before, the medical data from particularly the Syracuse Community Health Center, and I did look at the period going back to October 2010, very little even then reference to acute distress. January 18, 2011 at page 233, "no acute distress, some tenderness." March 10, 2011, "doing well on meds." That's at 231. May 26, 2011, "back pain, referred to pain clinic." That's at 230. July 12, 2011, six weeks later, at 229, "no complaints." November 8, 2011, "tenderness." That's at 227. November 23, 2011, "no complaints." That's at 226. April 2, 2012, that's at 222, "no acute distress, tenderness noted."

She underwent surgery in June of 2012. The notes of visits to the Syracuse Community Health Center from April 3, 2012 through June 5, 2013, that's at 303 to 336, literally have no mention of complaints of neck, back or hands with the exception of 332, which is a May 21, 2012 visit when she was cleared for surgery. So we have really no conflicting evidence, no squarely conflicting evidence, and no evidence of any treating source that suggests limitation greater than sedentary work.

In terms of credibility, obviously, the subjective complaints alone are insufficient. The Commissioner must go through the two-step process, which ALJ Lischak did. And he reviewed daily activities, which one month after surgery seemed to be fairly robust. He looked at X-rays when it came to the hand, that were negative. He looked at the fact that Dr. Ganesh indicated full grip strength and 5/5 dexterity, 5/5 grip strength and dexterity intact, at 288. There was no indication of any hand issue. There just doesn't seem to be any support of a limiting condition beyond sedentary.

So then we come to Step Five, and under SSR 8314 and SSR 8515 the need to avoid excessive exposure to irritants has only a minimal impact on the job base on which grids are predicated. This is different than Thomas, a case cited by the plaintiff, where the RFC indicated that the claimant was limited to no exposure to respiratory irritants. Clearly, vocational testimony would be required in that situation. Here we don't have that. We have must "avoid concentrated exposure to respiratory irritants."

So, I conclude that the Administrative Law Judge's determination is supported by substantial evidence resulted from the application of proper legal principles, and, therefore, will grant judgment on the pleadings to the defendant.

Thank you both and I hope you have a good Fourth of July weekend.

MS. COHN: Thank you, Your Honor.

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CERTIFICATION

I, EILEEN McDONOUGH, RPR, CRR, 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.