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 April 20, 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 April 20, 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: As you know, this is a request for judicial review under 42 United States Code Section 405(g). The relevant facts are as follows: The plaintiff was born in January of 1980, is currently 36 years old, was 33 at the time of the hearing. She lives with a husband, two daughters, 8 and 14 at the time of the hearing, and her parents. She's licensed to drive and does drive. She has a GED but no college coursework. She last worked in March of 2010, although the disability report says February of 2009, that's at page 200. She worked six years for Dunkin Donuts, four as a shift supervisor, in a position that required her to be on her feet all or most of the day that she worked. There's also indication that she had temporary work as a cleaner in a factory, and as a customer service representative for a pool and spa center.

She has been diagnosed with tarsal tunnel syndrome, bilaterally, meaning in both feet. She began to experience that somewhere between 2005 and 2007, the record is somewhat equivocal concerning that. She's had at least five surgeries on her feet, two on her right and three on her left, although at the hearing, she testified at one point she had five surgeries but later said six surgeries. She does not use orthotics, she wears regular sneakers. She also complains of back pain and migraine headaches and has a history of thyroid cancer. She suffers from obesity and has right knee pain. She has in the past seen pain management specialists and does use a TENS unit regularly. She is or has been prescribed hydrocodone, she was taking six pills a day at the time of the hearing, morphine, tramadol, Neurontin, Flexeril, and for depression, Cymbalta.

Procedurally, the plaintiff applied for Disability Insurance benefits and SSI payments on March 8, 2012, initially alleged an onset date of June 1, 2007. The hearing was conducted on December 3, 2013 by Administrative Law Judge Marie Greener. ALJ Greener issued a decision on February 4, 2014; it was unfavorable to the plaintiff. The Social Security Administration Appeals Council denied review on April 21, 2015, making the ALJ's decision a final determination of the agency.

In her decision, ALJ Greener applied the well-known five-step protocol for determining disability. She determined that the plaintiff had not engaged in substantial gainful activity since her alleged onset date, found that at step two, that she suffers from severe impairments including tarsal tunnel in both feet, degenerative disk disease in the lumbar spine, left knee impairment, and obesity. She concluded, however, that none of those, either individually or in combination, met or equaled any of the listed presumptively disabling conditions set forth in the regulations.

After surveying the medical evidence, ALJ Greener concluded that plaintiff has the residual functional capacity to lift and/or carry 10 pounds occasionally, sit for six hours in an eight-hour day, and stand and/or walk for two hours in an eight-hour day, and therefore could perform the full range of sedentary work as defined in the regulations.

At step four, the ALJ concluded that plaintiff is not capable of performing her past relevant work because her past positions required her to stand a large portion of the day.

At step five, the administrative law judge applied the Medical Vocational Guidelines, or grids, and specifically Rule 201.27, and concluded that a directed finding of no disability was warranted.

As you know, my task is limited to determining whether the correct legal principles were applied, and whether substantial evidence supports the Commissioner's determination.

The argument here centers upon two notes from plaintiff's surgeon, one from March 6, 2008, and one from April 27, 2007, instructing the plaintiff to elevate her foot when sitting to avoid long periods — and to avoid long periods of standing and sitting with her foot dangling. Those notes were several years back and prior to the relevant time period.

More importantly, it's very clear that the notes relate to the surgery that was undergone and the recovery from that surgery, particularly the April 2007 note which is at page 466, it indicates that this is a postoperative visit to her surgeon when that note was made. None of the later notes from either Dr. Popovici or Dr. Goriganti mentions this limitation. The RFC of course, in my view it is the claimant's burden to establish her RFC. There are no treating sources that specifically opined within the relevant period that this limitation continued.

I've looked at plaintiff's medical records carefully, and for the most part, they reflect normal findings including with respect to plaintiff's feet and lower extremities, at 387, 389, 392, 396, 401, 407, 410, 413, 416, 419, 422, and 426.

Most critically and importantly, Dr. Ganesh in his consultative report did not find any limitation in the plaintiff's extremities, except a mild to moderate limitation in walking and climbing which is consistent with sedentary work and, or put another way, not inconsistent with sedentary work. Of course consultative exams can provide substantial evidence and in this case, in my view, it does. The reliance on the grids was proper, there's no indication of nonexertional limitations that would sufficiently erode the job base upon which the grids are predicated to require the testimony of a vocational expert.

So I conclude that the determination at issue is supported by substantial evidence and therefore will grant judgment on the pleadings to the defendant. Appreciate your excellent written and verbal presentations, and I look forward to working with you both again in the future. Thank you.

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.