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 August 18, 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 DECISION held on August 18, 2016, at the James Hanley U.S. Courthouse, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, Presiding.

THE COURT: I have a request for judicial review of an adverse determination by the acting commissioner under Section 405(g) of Title 42, United States Code.

The background associated with this case is as follows: The plaintiff is a female. She was born in February of 1983 and is currently 33 years old. She lives in Harrisville, New York with a husband, a two-year-old son, and part-time with a three-year-old stepson. She is relatively recently married and was pregnant at the time of the hearing in this matter.

She has an 11th grade education and has not secured a GED. She last worked in December of 2012. Her past relevant work includes as a CNA, a cashier and a home health aide.

In December of 2012, she was diagnosed with invasive ductile carcinoma. She underwent a lumpectomy in January of 2013 followed by chemotherapy to May of 2013 and radiation from June through August of 2013. Thereafter, she underwent Herceptin treatments every three weeks ending on February 19, 2014.

In May of 2013, she reports having begun to experience lower back pain. An MRI was performed on November 13, 2013 — that's at 729 of the administrative transcript — with modest results. It showed a dessicated disk at T12-L1 but lack of any other findings. In January of 2013, plaintiff claims that she began to experience depression. She, also, suffers from asthma, which she uses an inhaler to address; migraines; and an overactive bladder.

She sees Dr. Samir Desai, who's an oncologist; physician's assistant, Melinda Rosner of the Beaver River Health Center.

For activities, she plays with her son, watches television, works on the computer. She cooks, cleans, does laundry, shops and can take care of her personal needs.

Procedurally, the plaintiff applied for Title II disability benefits on December 26th, 2012, alleging an onset date of December 18, 2012.

A hearing was conducted by Administrative Law Judge John P. Ramos on March 13, 2014. A supplemental hearing was conducted by Judge Ramos on September 11, 2014, at which time the testimony of a vocational expert was elicited.

On October 15, 2014, Administrative Law Judge Ramos issued an unfavorable decision that was made a final determination of the Commissioner when the Social Security Administration Appeals Council denied plaintiff's request for review on January 30, 2015.

The administrative law judge's decision applied the well-known 5-step sequential test for determining disability.

At Step 1, ALJ Ramos concluded plaintiff had not engaged in substantial gainful activity since her alleged onset date of December 18, 2012.

At Step 2, he concluded she suffers from breast cancer, degenerative disk disease of the lumbar spine and asthma as severe impairments, rejecting other alleged impairments, including urinary frequency, depression and asthma, as not sufficiently severe to limit her ability to perform work functions.

At Step 3, the administrative law judge concluded that the plaintiff's conditions did not meet or medically equal any of the listed presumptively disabling conditions; specifically, considering 13.10, breast cancer; and 1.04, spinal disorders, as well as 3.03 pulmonary/asthma.

After surveying the record, ALJ Ramos concluded plaintiff retains the residual functional capacity to lift and/or carry 10 pounds frequently, 20 pounds occasionally; to sit for six hours in an eight-hour day; and stand and/or walk for two hours in an eight-hour day.

He further indicated the claimant should change positions from sitting to standing, or vice versa, at will but need not need leave the work station or area. She is limited to occasional reaching with the right arm but, otherwise, has no reaching or manipulative limitations. She should not climb ladders or scaffolds and, otherwise, can perform postural activities, such as balancing, stooping, kneeling, crouching and crawling on an occasional basis.

The ALJ also limited the plaintiff in that she should not be exposed to respiratory irritants or extremes of temperature.

Applying this RFC, ALJ Ramos concluded that plaintiff is not capable of performing any of her past relevant work but, nonetheless, found, with the assistance of the vocational expert's testimony, that she is able to perform work in the national economy that is available, including as a clerk, an usher, and a chaperone, all of which fall in the light category with an SVP of 2.

The Commissioner, therefore, concluded that plaintiff was not disabled at the relevant times.

As you know, the standard of review is extremely deferential. I must determine whether correct legal principles were applied and the determination is supported by substantial evidence. And this is one of those cases where substantial evidence, it could be argued, supports either a finding of disability or a finding of no disability. But, as long as the Commissioner's decision is supported by substantial evidence, it must be upheld.

Turning, first, to the argument regarding physician's assistant Rosner, I note that, initially, PA Rosner indicated that she could not render an opinion. That's at 390. She did ultimately give two assessments: One in September of 2013 and one in March of 2014. The September 2013 is, very clearly, based on the functional capacity analysis conducted by, primarily, a physical therapist based on a one-time examination and is, at best, vague as to whether or not it represents a finding of the maximum limitations of the plaintiff.

In any event, the March 2014, report is, clearly, based on plaintiff's reports of her symptoms and it was noted that the report was prepared with the assistance of both the plaintiff and counsel.

The PA Rosner is, clearly, not an acceptable medical source and ALJ Ramos fully explained, at Pages 23 and 24 of his opinion, why he was not according weight to the opinions of PA Rosner, among other things. He reviewed the treatment notes, as I have, and I agree that they do not fully support the reports of PA Rosner.

In making that determination, I think the ALJ, also, considered it relevant that Dr. Desai, plaintiff's treating oncologist, declined to render any opinion concerning her limitations. That's at 648 of the record.

With regard to the FCE results, I think that the ALJ's interpretation is reasonable. It was a one-time exam by a person that's not an acceptable medical source and, in any event, it was conducted very close in time to when Dr. Noia conducted his consultative exam and Dr. Noia's results of his exam are markedly different and he opines, literally, that the claimant has — I'm sorry, not Dr. Noia. Dr. Lorensen. And she opines very clearly that the plaintiff does not have any significant limitations other than to avoid smoke, dust and other respiratory irritants. That's at Page 421 of the administrative transcript.

It was within the prerogative of the administrative law judge to weigh these competing determinations and decide which to accept.

With regard to Dr. Littell and LCSW Horsey, he, clearly, committed error in not recognizing that this was signed off on by Dr. Littell. There's no indication in the record, however, that Dr. Littell would qualify as a treating source. There's no indication he ever examined the plaintiff and she only began a month before seeing the Carthage Behavioral Center. The Commissioner at 17 and 18 did provide an analysis as to why he did not accept the opinions given by LCSW Horsey, which would apply equally to Dr. Littell. The findings are grossly inconsistent with those of Dr. Noia and Dr. Mangold at Page 94. And, as I indicated, there's no history of treatment by either LCSW Horsey or Dr. Littell. So, I agree that it was harmless error to not recognize that it was signed off on by Dr. Littell.

With Dr. Martinucci, again, the plaintiff had only begun recently seeing Dr. Martinucci. There's no longitudinal history of visits and treatment. There's the February 28, 2014, consultative report at 877-78. He recommends injections. There is indication in the record, I will concede, that she did receive four injections and she stated in her hearing testimony that they did not help her but there is no evidence that she returned to Dr. Martinucci or that other treatment options were considered.

In terms of staleness, there is an argument to be made that, perhaps, some of the evidence in the record was stale and maybe didn't reflect the progression of her back condition, in particular; but I think that was cured by the questionnaire — the interrogatories to Dr. Indiher and his opinions rendered on May 14, 2014. That's at 46F. And, in any event, the May 2013 opinions fall within the relevant time period and, so, were properly considered.

The last argument raised is credibility analysis. The ALJ engaged in the proper two-step process at Pages 21 and 22. He reviewed, carefully, the accounts of plaintiff's daily activities, made a credibility determination that is entitled to deference and I find no error in that credibility determination. As always, the ALJ could have done a better job at explaining the credibility analysis but I understand the pressures that they are under and I find that it does provide a basis for meaningful judicial review of his determination.

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

Thank you both for excellent presentations. I hope you enjoy the rest of your summer.

MR. HASSELER: Thank you, your Honor.

MR. SCHRIVER: Thank you, your Honor.

(Proceedings adjourned, 10:38 a.m.)

CERTIFICATION

I, DIANE S. MARTENS, Registered Professional Reporter, DO HEREBY CERTIFY that I attended the foregoing proceedings, took stenographic notes of the same, that the foregoing is a true and correct copy of same and the whole thereof.