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 October 21, 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.

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

DECISION — October 21, 2015

James Hanley Federal Building, Syracuse, New York

HONORABLE DAVID E. PEEBLES

United States Magistrate-Judge, Presiding

APPEARANCES (by telephone)

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

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

The plaintiff was born in January of 1993, is currently 22 years of age by my math. He is a high school graduate. He served in the United States Military, specifically the Army, from July of 2011 until February of 2013. His field of discipline in the Army was in information technology. He received an honorable medical discharge early. He lives in Dannemora.

There is very conflicting evidence as to where he has lived. At one point he lived with his mother and stepfather and two half sisters. At 319 it indicates in December of 2014 that was the case, but there is other indication that he moved out earlier. He has been living with a girlfriend and co-worker, September of 2014. He reported that at 329 and 277. He also said he lives with his girlfriend in March and May of 2015. And it was reported also in plaintiff's brief I think at page 63 that he moved out in September of 2014. In any event, it's not material.

He suffers from depression, anxiety, bipolar disorder and post-traumatic stress disorder. Clearly his symptoms became evident and worsened while he was in the Army. He was hospitalized twice in Germany in 2012; once as a result of a suicide attempt and once as a result of suicidal thoughts. He was again hospitalized in Champlain Valley Physicians Hospital in 2013. He has been granted a 30 percent disability by the Veterans Administration. Recently it was increased to 70 percent effective September 14, 2014

He has treated with various professionals since 2012 for his mental health issues, including through the Veterans Administration, the Behavioral Health Services North, including through Dr. Stanley Poreba, and through a primary pediatrician and nurse practitioner in that office, Laurie Eamer. Medications include Paxil, Gabapentin, Prozosin for nightmares, Trazadone for insomnia, Seroquel for mood swings, and Propranolol for anxiety and hypertension.

He last worked in July and August of 2014 part time as a cashier at a Stewarts sandwich shop. He quit over a confrontation with a co-worker. He also worked four days in a warehouse doing inventory management in November 2013. He left because he was stressed out. He worked in a temporary labor job racking, a racking job in September 2013. He left because of low pay and also could not deal with co-workers.

He smokes marijuana. Although, as I indicated, he did claim to Dr. Melcher, according to Dr. Melcher's report, that he quit. He stated at the hearing that he had last used a week before the hearing.

The procedural history is that plaintiff applied for disability insurance benefits in July of 2014 claiming an onset date of February 6, 2013. A hearing was conducted by Administrative Law Judge John Pickett on January 7, 2015. ALJ Pickett issued a decision on February 19, 2015 and a Social Security Appeals Council denied review on March 17, 2015, making the ALJ's decision a final determination of the agency.

In terms of the decision, Judge Pickett applied the standard well accepted and known five-step method for determining disability. He found that the plaintiff suffers from several severe mental impairments, including major depressive disorder, bipolar disorder, PTSD, anxiety disorder, and cannabis dependence. He went through a survey of the medical evidence and rejected certain other physical limitations as being severe, including asthma and back pain.

He then found that the plaintiff did not suffer from a listed presumptively disabling condition, and in doing that he concluded that plaintiff has only a mild restriction in daily living, moderate restriction in social functioning, mild difficulty in concentration, persistence, or pace, and no repeated episodes of decompensation and none that were work related.

He concluded that plaintiff has the residual functional capacity, or RFC, to perform a full range of work at all exertional levels with certain limitations, including being limited to simple work in which there is no more than occasional interaction with others and subject to no more than occasional production goals or quotas. Applying that RFC finding, the ALJ concluded after consulting with a vocational expert there were jobs that the plaintiff could perform that were available in sufficient numbers, including as a cleaner/housekeeping, cleaner industrial, and an addresser, and therefore concluded that he is not disabled.

The standard, as the Commissioner's Council noted, is extremely deferential. It requires me to determine whether the determination was the product of proper legal principles and is supported by substantial evidence. Substantial evidence has been defined by the Supreme Court as such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.

In this case first regarding the listings, the findings of the ALJ are supported by substantial evidence. Dr. Melcher's opinions can constitute as a consultant substantial evidence. I did not find any contrary opinions that specifically stated greater limitations. Certainly with regard to daily activities, the daily activities noted by the Administrative Law Judge and Dr. Melcher were consistent with plaintiff's statements to other examining physicians, including Dr. Wassef.

As to his daily activities, I find that the Residual Functional Capacity is supported by substantial evidence. I combed the record, did not find any evidence that plaintiff could not perform work on a sustained full-time basis. I did not find any treating source that stated that specifically. The closest thing is Nurse Practitioner Eamer's statement. But even that, and not from a medical source, does not say he is incapable of performing work-related functions; it says that he has been unable to obtain employment due to anxiety.

Once again, Dr. Melcher's opinion provides substantial evidence in terms of credibility and other issue raised. On page 19 the Administrative Law Judge specifically outlined his findings regarding credibility. Dr. Melcher, I note, specifically stated that plaintiff could maintain a schedule. That's at page 280. And I think he properly explained why he felt that plaintiff's failure to stop smoking marijuana was important because it indicated to the Administrative Law Judge that he was not serious enough about obtaining medication from Dr. Poreba to follow his instructions to stop marijuana so that he could get medicated. I think that's a proper consideration.

I noted that I've been carefully through Dr. Klink, Dr. Delucas, Dr. Newman, Nurse Practitioner Eames, Pat Parker, licensed clinical social worker. I could not find any findings, specific findings that were contrary to the ALJ's determination.

Which brings us to new evidence. The test is well-established, Second Circuit's decisions in Lisa and Tirado indicate that the evidence must be new material and there could be a reasonable possibility — material meaning there could be a reasonable possibility that new evidence would have influenced the ALJ's decision, and there also must be shown good cause for not submitting it before the ALJ's determination.

In this case I'm going to assume for the sake of argument that this is new evidence and that there is good cause that it was not obtained earlier, which clearly much of it was obtained after the Social Security Appeals Council's decision. I combed it carefully. Again with the exception of the 70 percent disability determination by the VA, I didn't find anything. I went through the nurse practitioner and doctors' notes. They diagnosed the same mood disorder, personality disorder, but they indicate that plaintiff is stable. They also show that he has missed several appointments.

With regard to the VA, as the Commissioner noted and Judge D'Agostino issued a decision regarding this, if this 70 percent disability had been determined prior to the ALJ's decision, he clearly should have probably referenced it. But it is a different standard and what would influence me more is if it was based on some evidence that was different from the evidence that is in this current record. There is no indication that it is. It's the VA's determination based on the current record, and I don't find anything that undermines the Commissioner's determination.

So, I find that the plaintiff has not met the materiality standard and that the new evidence provides no basis to overturn the determination, so I grant judgment on the pleadings to the Commissioner, and I will issue an order to that effect shortly. Thank you both for excellent presentations. Interesting case.

MR. SCHNEIDER: Thanks.

THE COURT: Thank you.

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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.