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 August 28, 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.

Transcript of a Decision held during a Telephone Conference on August 28, 2018, at the James Hanley Federal Building, 100 South Clinton Street, Syracuse, New York, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding.

(In Chambers, Counsel present by telephone.)

THE COURT: All right. Thank you both for excellent presentations.

I have before me an application for judicial review of an adverse determination by the Acting Commissioner pursuant to 42 United States Code Section 405(g).

The background is as follows: Plaintiff was born in December of 1971, she's currently 46 years old, was 42 years old at the alleged onset of her disability. She stands 5 foot 2 inches in height and weighs 125 pounds. She is right-hand dominant. Plaintiff is married but lives alone. She has three adult children, one son and two daughters. She has a driver's license and drives. Plaintiff has an 11th grade education but did secure a GED.

In terms of work, plaintiff was employed from 1999 to 2008 as a resident counselor working with disabled persons. From 2008 until December 2013, she was a customer service relation person with Bank of America doing primarily phone work. She went out of that position on long-term disability.

Medically, plaintiff has been diagnosed as suffering from multiple sclerosis. The diagnosis occurred in or around 2003. She reports that it causes her to experience numbness, vision loss, fatigue, pain and weakness, as well as headaches. She has treated with Dr. Lev Goldiner, a neurologist, since 2011. She has experienced MRIs of the brain in January of 2014, July 2014, and September 2014, that are mixed in terms of demonstrating progression of the disease. She also has a history of breast cancer.

Plaintiff also suffers from mental conditions, depression and anxiety primarily. She has treated with Dr. Nalia Sinha, a licensed clinical social worker, Cynthia Chapple, who she sees weekly, a social worker Annette Edwards.

The plaintiff has been over the years prescribed several medications for her physical and mental conditions including Xanax, Ativan, Aubagio which is for her MS, gabapentin, Cymbalta, and Ativan.

According to 265, 269, 1013, and 1016, plaintiff has a fairly robust set of daily activities. She goes to yoga, she cooks, she watches television, plays cards, walks, she reads, she dresses, she can bathe, she does laundry, she visits her grandmother, she shops, she goes to church, and she cares for her pet, although the daughters assist her with some of her activities.

Procedurally, plaintiff applied for Title II Disability Insurance benefits on January 17, 2014, alleging an onset date of December 27, 2013. A hearing was conducted by Administrative Law Judge Bruce Fein on September 15, 2015. A supplemental hearing was conducted with a vocational expert on May 31, 2016. Judge Fein issued a decision on June 10, 2016 which was unfavorable to the plaintiff. That became a final determination of the agency on August 18, 2017, when the Social Security Administration Appeals Council denied plaintiff's application for review.

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

At step 1, ALJ Fein concluded plaintiff had not engaged in substantial gainful activity since her alleged onset date.

At step 2, ALJ Fein concluded that plaintiff suffers from severe impairments including multiple sclerosis, depressive disorder, and an anxiety disorder.

At step 3, plaintiff was found not to meet or medically equal the — any of the listed presumptively disabling conditions set forth in the Commissioner's regulations. Specifically ALJ Fein examined the Listings 11.09, 12.04, and 12.06. With regard to the latter two, it was concluded that plaintiff could not meet the B criteria, examining such matters as daily living, social functioning, concentration, persistence and pace and episodes of decompensation, and similarly, the C criteria were not met.

ALJ Fein then concluded after surveying the record that plaintiff is capable of performing at basically a sedentary level with exceptions, specifically found that the claimant has a residual functional capacity to lift and carry 10 pounds, sit six hours in an eight-hour workday, stand and walk four hours in an eight-hour workday. In addition, the claimant is able to alternate between sitting and standing positions at one-hour intervals throughout the day, the claimant is unable to climb ladders, ropes, or scaffolds but can perform all other postural activities occasionally. She is limited to simple, routine, repetitive tasks. Finally, she requires a low-stress job defined as only occasional decision making, changes in work setting and judgment required.

At step 4, the administrative law judge concluded that plaintiff is not capable of performing her past relevant work, because of primarily the nonexertional demands, both were in the semi-skilled/skilled category, resident supervisor having an SVP of 6 and the CSR position, an SVP of 5.

With the assistance of a vocational expert, ALJ Fein concluded that plaintiff is capable of performing as a document preparer, an addresser, and order clerk and therefore is not disabled at the relevant times.

As you know, my task is limited to determining whether the ALJ's findings are supported by substantial evidence and correct legal principles were applied. It is a highly deferential standard.

The first issue raised by the plaintiff is a due process violation based on the inability to respond to interrogatory responses by Dr. Didio, his assessments from November 6, 2015, set forth in Exhibits 49F through 51F. I note that at the first hearing the administrative law judge on September 15, 2015 did advise the plaintiff who was represented by counsel that he might seek expert assistance, that's at page 105 of the record. On December 28, 2015, there was a notice of hearing, that's at page 182 to 184 of the record, and that notice of continued hearing advised at page 183, you have a right to review the claim file. There was another notice of hearing at March 27, 2015, that's at 301, that indicated the file was available for review although that was prior to the first hearing. I note that the Acting Commissioner actually in that regard made a mistake in saying that, at page 5 of the brief that that was two months before the supplemental hearing, it was actually a year before the supplemental hearing. But plaintiff was represented by Ms. Blackshear, an attorney, there was no request for an opportunity to cross-examine or submit supplemental interrogatories to Dr. Didio, and the ALJ specifically at page 33 and again at 44 gave plaintiff an opportunity to bring anything else up that was desired.

It appears from pages 44 to 47 that plaintiff's counsel was aware of the medical opinions, so I think that this case is more akin to the Second Circuit's decision in Diaz v. Shalala, 59 F.3d 307, where it was essentially the court's opinion that the plaintiff knew or should have known that the — that there was additional evidence, in that case it was a Workers' Compensation document.

And I think this case is readily distinguishable from plaintiff's cited case Young v. Berryhill found at 2018 WL 661414. That was a pro se plaintiff and it was clear that the pro se plaintiff never received the interrogatories at issue because they were sent to the wrong address, and in that case the court said under those circumstances there was a due process violation. So I don't find any due process violation.

There's no question that, as a treating source, Dr. Goldiner is entitled to deference and his opinions are controlling, if they are not inconsistent with other substantial evidence. And certainly there are factors that the regulations require the administrative law judge to consider when discounting or rejecting a treating source opinion, although the Second Circuit has said that those factors don't need to be rotely addressed as long as it is clear that they were considered.

I agree with plaintiff — with defendant's counsel that Dr. Goldiner's opinions, especially from September 24, 2014, are not horribly inconsistent with the ALJ's RFC. They are not at all inconsistent in terms of lift and carry, although I suppose you could argue they are because up to 10 pounds occasionally versus 10 pounds without restriction, sit four hours in an eight-hour workday as opposed to six, stand two hours and walk two hours as opposed to four, but the ALJ was very specific in why Dr. Goldiner's opinions were being rejected. Dr. Goldiner found, for example, at 1020-1021 that plaintiff had a marked limitation in activities of daily living when plaintiff in fact at 1547 advised that she was independent in activities of daily living.

The administrative law judge at pages 20 and 21 gave a detailed account of why he did not give controlling weight to Dr. Goldiner's opinions. The key was that the opinion was inconsistent with plaintiff's prior work while she was — while she was suffering from MS, and there was no significant — no evidence of significant worsening since she left work. It was also based on plaintiff's reluctance to take medications.

The ALJ properly relied on the consultative examination of Dr. Perkins-Mwantuali, 5F, and the exam was pretty much unremarkable. It discerned very minimal loss of strength.

In terms of mental, the opinions of Dr. Sinha and Licensed Clinical Social Worker Chapple were properly rejected and the rejection was explained at page 21 as being inconsistent with treatment notes and not supported by GAF. GAF scores included 51 at 1008 and 65 at 1099.

The plaintiff — the ALJ also properly relied on Dr. Fisher's consultative examination at 4F that supported the mental aspects of the RFC, again, based on an unremarkable examination, and finally, relied on the opinions of Dr. Didio at 49 through 51F.

Annette Edwards' opinions were properly rejected, she was not an acceptable medical source and doesn't cite any clinical support, and it is totally inconsistent with plaintiff's history of daily activities and living alone.

It was — in the end, it's the ALJ's duty to weigh conflicting medical evidence, and as long as the result is supported by substantial evidence, the court must defer to the ALJ's weighing. In the end, I find that the treating source was properly discounted and explained, and that the ALJ's RFC is supported by substantial evidence.

In terms of evaluating the plaintiff's symptoms, the ALJ properly engaged in the required two-step analysis at pages 18 through 21, and discusses how he arrived at his determination that plaintiff's reported symptoms were not fully credible, and I find that even though, again, he did not rotely recite the factors that are supposed to be considered under the Social Security Ruling that governs, nonetheless I am able to glean his rationale and find that his credibility determination is supported by substantial evidence.

So in sum, I find that proper legal principles were applied and the ALJ's decision is supported by substantial evidence. I will therefore grant judgment on the pleadings to the defendant and dismiss plaintiff's complaint. Thank you both again, enjoy the rest of your summer.

(Proceedings Adjourned, 10:29 a.m.)

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.