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), are cross-motions for judgment on the pleadings.1 Oral argument was heard in connection with those motions on May 17, 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.

THE COURT: Well, I have before me a request for judicial review of an adverse determination of the Commissioner pursuant to 42, United States Code, Section 405(g). The background is as follows.

Plaintiff was born in May of 1962. She is currently almost 56 years of age. She was 53 years old at the time of the hearing in this matter, and 48 years old at the time of the alleged onset of her disability.

She stands either 5-foot-4 or 5-foot-5, depending on what reference you look at in the Administrative Transcript, and weighs 176 pounds. She is right-hand dominant. She is married with five grown children. She does have a 24-year-old son who lives with her and her husband. She and her husband and the son live in a mobile home in Stone Ridge, New York.

Plaintiff has a driver's license but does not drive. Claims that the neuropathy affects her ability to drive. She's a high school graduate. It's unclear whether she actually graduated high school or secured a GED. There is reference somewhere in the record to a GED.

In terms of work, she last worked in either 2011 or 2012, depending on whether you look at her hearing testimony at 56, or a functional report at 201. She worked at Devereux, a place assisting mentally ill persons. She was a driver and had other duties briefly at the United Cerebral Palsy Center. She was a driver and a support person at an ARC Center. She has worked as a home health aide in Ulster County, and in a kennel as a manager and assisted in transporting and caring for animals, primarily dogs.

Physically she has suffered over the years from asthma; currently uses a nebulizer and an inhaler. She did appear at an emergency room at Kingston Hospital for treatment and was released on September 24, 2012. That's at 1F. She also went to Urgent Care in March of 2014. That's at 344 of the Administrative Transcript. She declined the recommendation, however, that she go to the emergency room on that occasion.

She suffers from neuropathy peripherally. She apparently was diagnosed at one point with Guillian-Barre Syndrome and was hospitalized perhaps in 2004, that's at 352, and again in 2008, that's at 260 and 261. It especially affects her feet and she has balance issues and can't feel her feet.

She has seen briefly a neurologist, Dr. Ashlesh Dani, since 2015. I think she had perhaps three visits with him. She suffers from GERD, but with minimal limitations. She has a BMI of 31.06, and therefore is considered obese. That's at 325. She has hypertension, but it appears to be controlled with medication. She claims to suffer from sleep issues and fatigue, but as the Commissioner's Council noted, on many occasions when visiting health care providers she denied the existence of fatigue.

She has had carpal tunnel syndrome. Dr. Dani saw her for that. And Dr. Jenouri referenced it but indicated there was no evidence of any limitation associated with her carpal tunnel syndrome. Plaintiff sees primarily Dr. Daniel Hafner and Nurse Practitioner Cynthia Pascaretti about every three months. They practice with the Mid-Hudson Medical Group.

She has been on many medications, including Cymbalta, Advil, ADVAIR, Albuterol, Lisinopril for blood pressure, Prilosec for stomach, and Ventolin for asthma. Mentally she also complains of depression and anxiety; however, she has not sought any specialized psychiatric or psychological treatment. She has been prescribed Cymbalta, which addresses those conditions.

In terms of daily activity, she cooks most meals. That's at 187. Although during the hearing she claimed that her husband cooks. That's at 61. She told Dr. Jenouri she cooks every day. That's at 273. She goes to yoga. She can care for her personal hygiene and dressing. She watches television, sits outside, does crossword puzzles, helps her nine-year-old granddaughter with homework, takes care of house plants, does laundry and dishes. That's at 188 and 62. Although she claimed during the hearing that her son does the laundry. That's at 62.

Procedurally plaintiff applied for Title II disability benefits on December 3, 2013, alleging an onset date of January 5, 2011. The hearing was conducted by Administrative Law Judge Vincent Cascio on April 19, 2016, in which plaintiff and a vocational expert testified. On June 15, 2016 ALJ Cascio issued an unfavorable decision finding that plaintiff was not disabled at the relevant times and, therefore, ineligible for the benefits sought.

On August 17, 2017 the determination became final when the Social Security Administration Appeals Council denied plaintiff's application for review of that determination.

In his decision ALJ Cascio applied the familiar five-step sequential test for determining disability.

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

At step two he concluded that she suffers from severe impairments, including peripheral neuropathy, bilateral foot pain, paresthesia, asthma and syncope/vertigo.

At step three he concluded, however, that none of these conditions meet or medically equal any of the listed presumptively disabling conditions.

At step four — well, first, after surveying the medical evidence, the ALJ concluded that plaintiff is capable of performing a full range of light work, with exceptions to, for example, climbing ramps and stairs and so forth, as well as avoiding exposure to respiratory irritants. That's at page 26 of his decision.

Applying that RFC, or Residual Functional Capacity, determination at step four, the ALJ concluded that plaintiff is unable to perform her past relevant work as a PT aide, an animal caretaker, and an attendant at a children's institution.

Applying the light range, the light work finding and Grid Rule 202.14, a finding of no disability would have been directed. Because of the additional non-exertional requirements for limitations, the opinion of a vocational expert was sought. And based on that testimony of the vocational expert, the ALJ concluded the plaintiff can perform the jobs of assembler, small products II, sub assembler and wire worker. And, therefore, concluded she was not disabled at the relevant times.

As you know, my role in this case is limited to determine whether correct legal principles were applied and the determination is supported by substantial evidence. I agree with plaintiff's counsel that substantial evidence is such evidence as reasonable minds would find supports a determination. I don't agree, however, that it is defective that the Administrative Law Judge cherry-picked and relied on favorable portions of the record that support his conclusion. In almost every case there is conflicting evidence, and in many cases, and this may be one of them, substantial evidence could support either a finding of disability or a finding of no disability; they're not incompatible.

My role is to determine whether this particular determination, which hinges on the RFC finding, is supported by substantial evidence. And I conclude that it is. The burden of proof, of course, through step four and including the RFC stage is on the plaintiff to establish her limitations. That is under Poupore, it's the Second Circuit's determination.

The Nurse Practitioner Pascaretti's, clearly her medical source statement, if you want to call it that, is not fully compatible with the RFC; however, at the time this determination was made, she was not an acceptable medical source. I note that Second Circuit has been very clear that when you consider and reject either a treating source or a non-treating source's opinions, you need not slavishly recite all of the factors that are to be considered under Section 404.1527 of the regulations.

Nurse Practitioner Pascaretti's opinion suffered from a couple of problems. One, it's internally inconsistent regarding sitting. It's inconsistent with her treatment notes that are at 2F and 6F. She stated that she could not give a work opinion. And that's at 264. And at one point she stated that she filled it out the best she could.

And I don't understand the plaintiff to be relying on her asthma, but it's very clear that her asthma and hypertension and depression are all controlled and stable. Interestingly, when she went to the emergency room on September 24, 2012 suffering from shortness of breath, she stated had not had an asthma attack in over a year and had no inhaler at home.

The determination of light work is supported by Dr. Dani. Although Dr. Dani did note at 301 and 285 that plaintiff has a wide-based gait. It was also observed that her gait was slightly ataxic but with no numbness or tingling. That's at 354. But there are several references to a normal gait, 273. That's in Dr. Jenouri's clinical assessment, 359, 365 and 381.

The light work determination is supported by Dr. Jenouri's consultative report, which was given great weight. The ALJ's entitled to rely on that to supply substantial evidence. The ALJ also noted plaintiff's conservative treatment. She declined physical therapy. She has gaps in treatment; 911 to 1012 and 513 and 314. Even when she was insured, her treatment was conservative and sporadic. That's at 67. She would only go every three to six months to her physicians.

The misstatement, clearly there is a misstatement that the ALJ attributes plaintiff to having fallen off a moped, but I don't find that to be harmful error. The ALJ relied on the statement that the plaintiff was able to walk in a parade, and I think that it was entirely permissible to draw conclusions from that determination. And also he noted plaintiff primarily takes Advil for her pain. That was at page 238. That was a reference that was made on December 2, 2015.

So I do find that the light work determination is supported by substantial evidence. There is no medical proof in the record to support the additional limitation associated with fatigue and being off task 15 percent of the time. The RFC being proper, the hypothetical that was posed to the vocational expert, one of the several, that led to the conclusion that there are jobs available that plaintiff can perform in the national economy is therefore supported by substantial evidence.

So I will grant judgment on the pleadings to the defendant.

And I want to commend both of you. That was an excellent spirited argument. I hope you have a good day.

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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.