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

Acting Commissioner of Social Security, pursuant to 42 U.S.C. §§ 405(g), 1383(c)(3), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on January 16, 2018, 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 Acting 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 Acting 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.

(In Chambers, Counsel present by telephone.)

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

So I have before me a request for judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Sections 405(g) and 1383(c)(3).

The background is as follows: The plaintiff was born in June of 1982, she is currently 35 years of age. She was 31 years at the alleged onset of her disability. She lives, or did at the time of the hearing, in Johnson City in an apartment with her boyfriend, a son, and a mother, that's at 372. She has several children but that are living elsewhere. Plaintiff dropped out of school after ninth grade because she had a child. When she was in school, she was in regular classes. She has secured a GED.

She last worked for Binghamton University for a few months in 2013. She was a chef and salad attendant. She quit because she found it difficult to be around people and had problems dealing with stress. She's also worked as housekeeper at a hotel from 2010 to 2013. She left that position due to issues with her back. She has also worked in positions as a cashier, an assembler, and as a deli assistant. She is right-hand dominant. In January of 2016, plaintiff claims she has no driver's license, that's at page 78. There is an indication that she was driving at least in April of 2014 when she drove to her evaluation, that's at 372, and stated she can drive at 374. She walks, including 20 minutes to a therapist one time per week. She takes a bus and her sister drives her.

Physically she has had back issues since September of 2011. An MRI, magnetic resonance imaging, testing in August of 2012 showed a protrusion but no significant herniation or canal compromise. She has been prescribed Flexeril for her back. She underwent physical therapy between March and May of 2015 that by all accounts was a success in meeting her goals. She has been treated by her primary physician Dr. Frank Eder, E-d-e-r. She is a lifelong sufferer of asthma and in May of 2016 noted also a knee issue which has been described as patellofemoral pain syndrome.

Mentally, plaintiff has been variously diagnosed with conditions such as bipolar disorder, post-traumatic stress disorder or PTSD, borderline personality disorder, anxiety disorder, and affective disorder. She testified that she has panic attacks, at page 77 during the hearing she said two times per month, at 570 in the record she said to a treatment provider five times per week. She has been assigned a GAF of between 50 and 55. She is on Seroquel and sees Dr. Surya Toraty one time per month and Licensed Clinical Social Worker Paul Komatinsky one time per week at Family and Child Society. She was hospitalized with suicidal ideation in 1995.

Plaintiff smokes one half pack of cigarettes per day. Her daily activities include puzzles, speaking on the phone, riding bikes. She bowls, she swims, prepares simple meals, does some laundry, some socialization, watches television and radio, listens to radio.

The background is as follows: She applied for Title II and Title XVI benefits in February of 2014 alleging an onset date of October 7, 2013. A hearing was conducted by Administrative Law Judge John P. Ramos on January 5, 2016. A supplemental hearing, including testimony from Dr. Vitolo and vocational expert, was held in July of 2016. ALJ Ramos issued a decision on August 17, 2016, which was unfavorable to the plaintiff, and that became a final determination of the agency on February 24, 2017, when the appeals council denied plaintiff's request for review of that decision.

In his decision, ALJ Ramos who I also, like plaintiff's counsel, have a great deal of respect for, applied the sequential well-known five-step test for determining disability.

At step one he concluded plaintiff had not engaged in substantial gainful activity since her alleged onset date.

At step two, ALJ Ramos concluded that plaintiff suffers from severe conditions, including a back impairment, asthma, affective disorder, anxiety disorder, and personality disorder.

At step three, ALJ Ramos concluded that conditions did not meet or medically equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations. He specifically considered Listings 1.04, 3.03, and 12.04.

He then surveyed the medical evidence in the record and in what the defendant has characterized, I think appropriately so, as a nuanced residual functional capacity or RFC finding, concluded that plaintiff can perform light work with significant limitations, both environmental and mental, and I won't repeat them but it is found at page 26 of the administrative transcript.

Applying that RFC determination, the ALJ concluded that plaintiff had not engaged in substantial — could not engage in substantial gainful activity and noted that none of the various jobs that were reported by the plaintiff amounted to substantial gainful activity, so he went on to step five and with the assistance of a vocational expert, after noting that the Medical Vocational Guidelines or Grids would direct a finding of no disability, that's Rule 202.20, relied on the testimony of the vocational expert to carry the Commissioner's burden at step five and found that there were three representative positions of — among others, that the plaintiff could perform despite her limitations including as a photocopying machine operator, a marker, and a folding machine operator, and therefore concluded that the plaintiff was not disabled at the relevant times.

As you know, my task is limited to determining whether correct legal principles were applied and substantial evidence supports the determination, substantial evidence being such evidence as a rational, reasonable mind would find supports the determination. I wrestled with this case and I reviewed very carefully and thoroughly the, both the treatment notes and the reports, the various reports in the record.

Mentally, I understand the argument about giving Dr. Loomis great weight but ignoring the moderate limitations in maintaining a regular schedule, and I'll come back to that. That was certainly troublesome, but the treatment notes from Dr. Eder, Dr. Procopio, Dr. — LCSW Komatinsky, and Dr. Toraty do not support the greater limitations that were alleged by the plaintiff mentally. She scores between 50 and 60 as a GAF, she appears to be doing well on Seroquel. The rejection of Dr. Toraty's opinions in my view was properly explained by ALJ Ramos and he cites to treatment records that are contrary to Dr. Toraty's opinions.

The physical RFC I think is well supported by the record. The determination includes the ability to perform light work which involves, under the regulations, lifting no more than 20 pounds at a time with frequent lifting or carrying of objects weighing up to 10 pounds. To be considered capable of performing a full or wide range of light work, you must have the ability to do substantially all of these activities including a good deal of walking or standing. As I indicated, there's clear indication that plaintiff is able to walk a fair — fairly long distance.

The determination, I think the ALJ is entitled to rely on what the record says and also what the record doesn't say, as the Commissioner has argued. I think that Dirisio v. Commissioner of Social Security, 2016 WL 7378930 from the Northern District of New York, December 20, 2016, indicates that, supports that the Commissioner is entitled to rely on what the record doesn't say as well as what the record says.

I think Dr. Figueroa's consultative report supports the determination. The only limitation that she notes is mild limitation to reaching based on today's evaluation, and as the Commissioner has noted, the objective findings of Dr. Figueroa support a lack of additional limitations. At 367, plaintiff appeared to be in no acute distress, gait normal, can walk on heels and toes without difficulty, squat full, stands normal, use no assistive devices, needed no help changing for exam or getting on and off the exam table. Able to rise from the chair without difficulty. Cervical spine shows full flexion, extension, lateral flexion bilaterally and full rotary movement, lumbar flexion 90 degrees, extension 30 degrees, lateral flexion 30 degrees bilaterally, rotary movement 30 degrees bilaterally, straight leg raise test was negative bilaterally, shoulder elevation of 15 degrees bilaterally, adduction 150 degrees, bilaterally, and on and on, grip strength, hand and finger dexterity intact, grip strength five by five laterally. So Dr. Figueroa's report and, more importantly, the lack of any additional limitation, appears to be supported by Dr. Figueroa's findings.

The other evidence in the record also supports it. Plaintiff states she can walk up to 30 minutes, that's at 469, 472, and 484. She testified she walks to see the therapist once a week for 20 minutes, 71 to 72. Daily activities, as I indicated, including sweeping, cleaning, laundry, cooking, riding bicycle, swimming, bowling, that's at 374. Treatment notes, I looked at the physical therapy treatment notes, she was found to be gaining strength in the beginning of May, can ambulate without increased pain, that's at 508, 90 percent better at — by May 22nd and she indicated her pain level, that's at 515, was between zero and 3 on a scale of 10. Dr. Steinberg and LPN Simpson and Dr. Procopio also support that. August 20, 2015, gait normal, the — at 456, pain, doing well with chiropractor and physical therapy and home exercises.

The biggest issue obviously was zeroed in on by plaintiff's counsel, the off task and absenteeism, and I went through and compared the reports and there's no question Dr. Toraty in December of 2015 stated, extremely limited in ability to complete a normal workday and workweek without interruptions, and would be off task more than 33 percent of the day, absent three or more days per month. Dr. Loomis in April of 2014, plaintiff exhibited moderate impairment in her ability to maintain a regular schedule. Dr. Harding at page 94 indicated plaintiff is moderately limited in ability to perform activities within a schedule, maintain regular attendance and to be punctual and with customary tolerances. At — and at 684, Dr. Vitolo also opined that the plaintiff would be moderately limited in the ability to perform activities within a schedule, maintain regular attendance and be punctual within customary tolerances. However, notwithstanding that, at page 383, Dr. Vitolo did state his opinion that the claimant is capable of functioning independently, appropriately and effectively in a substantial gainful activity type setting, eight hours per day, five days per week on a sustained basis, that's at 683. Dr. Harding also summarized at page 95 by saying claimant appears able to perform work-related tasks, and above that, claimant's allegations of severity is not supported by the medical evidence in the record.

As I indicated, the ALJ Ramos did opine that the plaintiff can regularly attend to a routine and maintain a schedule at page 26. He then explained why he rejected

Dr. Toraty and LCSW Komatinsky's opinions concerning off pace and gave Dr. Vitolo great weight.

So my determination is that the ALJ's finding is supported by substantial evidence. There's evidence going both ways, but — and substantial evidence could also support a contrary opinion but that's, that's the nature of the deferential standard which I applied. So I do find support for the ALJ's determination and will therefore grant judgment on the pleadings to the defendant.

As I indicated, it's a close case and I wrestled with it and looked at it extremely carefully, and that's my conclusion. So thank you both for excellent presentations.

MR. GORTON: Thank you, your Honor.

MR. ABRAHAM: Thank you, your Honor.

(Proceedings Adjourned at 11:37 a.m.)

CERTIFICATION

I, JODI L. HIBBARD, RPR, CRR, CSR, Official Court Reporter in and for the United States District Court, Northern District of New York, DO HEREBY CERTIFY that I have listened to and transcribed the foregoing proceedings and that the foregoing is a true and correct transcript thereof to the best of my ability.