LaRocco v. Commissioner of Social Security

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________ BOBBIE JO L., Plaintiff, v. Civil Action No. 5:24-CV-1157 (DEP) COMMISSIONER OF SOCIAL SECURITY, Defendant. __________________________ APPEARANCES: OF COUNSEL: FOR PLAINTIFF MEGGESTO, CROSSETT & KIMBERLY A. SLIMBAUGH, ESQ. VALERINO, LLP 511 East Fayette Street Syracuse, NY 13202 FOR DEFENDANT SOCIAL SECURITY ADMIN. CANDACE BROWN CASEY, ESQ. OFFICE OF GENERAL COUNSEL 6401 Security Boulevard Baltimore, MD 21235 DAVID E. PEEBLES U.S. MAGISTRATE JUDGE ORDER 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 (“Commissioner”), 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 September 24, 2025, 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. 1 This matter, which is before me on consent of the parties pursuant to 28 U.S.C. ' 636(c), has been treated in accordance with the procedures set forth in General Order No. 18. Under that General Order, once issue has been joined, an action such as this is considered procedurally as if cross-motions for judgment on the pleadings had been filed pursuant to Rule 12(c) of the Federal Rules of Civil Procedure. 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. U.S. Magistrate Judge Dated: September 26, 2025 Syracuse, NY UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK --------------------------------------------x BOBBIE JO L., Plaintiff, vs. 5:24-CV-1157 COMMISSIONER OF SOCIAL SECURITY, Defendant. --------------------------------------------x Transcript of a Decision held during a Telephone Conference on September 24, 2025, the HONORABLE DAVID E. PEEBLES, United States Magistrate Judge, Presiding. A P P E A R A N C E S (By Telephone) For Plaintiff: MEGGESTO, CROSSETT & VALERINO, LLP Attorneys at Law 511 East Fayette Street Syracuse, New York 13202 BY: KIMBERLY A. SLIMBAUGH, ESQ. For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, Maryland 21235 BY: CANDACE BROWN CASEY, ESQ. Jodi L. Hibbard, RMR, CSR, CRR Official United States Court Reporter 100 South Clinton Street Syracuse, New York 13261-7367 (315) 234-8547 1 (The Court and counsel present by telephone.) 2 THE COURT: Thank you. I appreciate the excellent 3 presentations by both of you. 4 Before I turn to the merits of the case, I wanted 5 to address the subject of consent. When this case was 6 initially filed, it was assigned to now-retired United States 7 Magistrate Judge Christian F. Hummel. It has twice I think 8 since been reassigned and ultimately I am now the assigned 9 magistrate judge. The consent form that was filed in this 10 case on behalf of the plaintiff, it's Docket Number 6, 11 specifically consented to the jurisdiction of Judge Hummel. 12 So Attorney Slimbaugh, I know that you were asked to indicate 13 within a certain period of time whether you did not consent 14 to my jurisdiction but I still wanted to confirm, do you 15 consent to my hearing and deciding this case with direct 16 appeal to the United States Court of Appeals for the Second 17 Circuit? 18 MS. SLIMBAUGH: Yes, your Honor. 19 THE COURT: Thank you. Plaintiff has commenced 20 this proceeding pursuant to 42 United States Code Section 21 405(g) to challenge an adverse determination of the 22 Commissioner of Social Security finding that she was not 23 disabled at the relevant times and therefore is ineligible 24 for the benefits for which she applied. 25 The background is as follows: Plaintiff was born 1 in January of 1977, she is currently 48 years of age. She 2 was 44 years old at the alleged onset of disability on May 1, 3 2021. Plaintiff stands 5 foot 3 inches in height and weighs 4 approximately 180 pounds. Plaintiff lives in Oneida, 5 New York in a two-story home with her fiance of 20 years. 6 Plaintiff has a high school degree and two years of college 7 education. During her education, she was in regular classes 8 rather than special education. Plaintiff drives, although 9 the evidence is equivocal on that score. At page 893 it 10 indicates she drives; during the hearing at page 61 she 11 testified she does not drive since her stroke which occurred 12 in May of 2021; however, at page 641, there is an indication 13 she drove herself to the examination by Dr. Noia on 14 October 10, 2022; and at 893, there's an indication she drove 15 herself to the examination of Dr. Long on May 11, 2023. When 16 employed, plaintiff worked as a medical biller for several 17 years, ending in approximately April of 2018. She also 18 worked as a workers' compensation adjustor. That appears to 19 have been a part-time job five days a week, three days -- 20 three hours per day. This was after her stroke. It occurred 21 from December 2021 to September of 2022. She also worked for 22 an auto auction company, taking photographs and doing other 23 type of work. 24 Physically, plaintiff suffers from chronic 25 migraines with unknown triggers; post cerebrovascular 1 accident, she had a stroke, as I indicated, in May of 2021; 2 post patent foramen ovale closure in September 2021; atrial 3 fibrillation, or A-fib; post insertion of loop recorder in 4 September 2021; Ebstein anomaly; cardiac dysthymias right; 5 and right lumbosacral radiculopathy. She has had several 6 emergency department visits to the hospital, including in May 7 of 2021 for her stroke. 8 Mentally, plaintiff suffers from depression, 9 sometimes characterized as major depressive disorder, she 10 suffers also from bipolar disorder and post-traumatic stress 11 disorder, or PTSD. Plaintiff has not undergone any 12 psychiatric hospitalization or significant outpatient 13 treatment, although she did present to CPEP in October of 14 2022, that's at page 703 to 709, and was referred to 15 outpatient counseling. She now undergoes weekly 16 psychotherapy and monthly medication management. 17 Procedurally -- I'm sorry. Plaintiff's activities 18 of daily living, which are referenced at various points in 19 the record including at 643, 646, 890, and 895, plaintiff is 20 able to dress, bathe, groom -- once again the evidence is 21 equivocal as to whether she can cook, at 890 there's 22 indication she cannot, at 895 she can -- light cleaning, 23 laundry, no shopping, she drives, she watches television, 24 listens to the radio, she participates in social media, she 25 is engaged in crafting and sewing, and she goes to the gym. 1 Plaintiff is a smoker. She smokes one-and-a-half packs a 2 day, or did until 2021, that's at 890 and at various places 3 in her medical treatment records. 4 Procedurally, plaintiff applied for Title II 5 benefits on May 20, 2022, alleging an onset date of May 1, 6 2021. At page 253 she alleged disability based on blind or 7 low vision, back, Ebstein anomaly of heart, and stroke. 8 There was no mention at that point of her migraine headaches. 9 A hearing was conducted by Administrative Law Judge, or ALJ, 10 Bruce Fein to address plaintiff's application for benefits on 11 November 28, 2023. Judge Fein issued an adverse 12 determination on December 14, 2023, and that decision became 13 a final determination of the Agency on August 13, 2024, when 14 the Social Security Administration Appeals Council denied 15 plaintiff's application for review. This action was 16 commenced on September 23, 2024, and is timely. 17 In his decision, ALJ Fein applied the familiar 18 five-step sequential test for determining disability. 19 At step one, he noted that plaintiff has not 20 engaged in substantial gainful activity since her alleged 21 onset date. He did note that she has performed some work 22 since then but it is below the SGA threshold. 23 At step two, the administrative law judge concluded 24 that plaintiff does suffer from severe impairments that 25 impose more than minimal limitations on her ability to 1 perform basic work functions, and specifically post 2 cerebrovascular accident, migraines, post patent foramen 3 ovale closure, atrial fibrillation, Ebstein anomaly, post 4 placement of loop recorder, and right lumbosacral 5 radiculopathy, as well as mental impairments, including major 6 depressive disorder, generalized anxiety disorder, and 7 post-traumatic stress disorder. 8 At step three, ALJ Fein concluded that plaintiff's 9 conditions do not meet or medically equal any of the listed 10 presumptively disabling conditions set forth in the 11 Commissioner's regulations, specifically considering listings 12 1.15, 1.16, 1.18, 4.05, 11.02, 11.04, 12.04, 12.06, and 13 12.15. 14 The administrative law judge next surveyed the 15 entire record and concluded that notwithstanding her 16 limitations, plaintiff is capable of performing light work as 17 defined in the regulations, except she can perform all 18 postural activities occasionally, except no climbing ropes, 19 ladders, or scaffolds, she should avoid concentrated exposure 20 to unprotected heights, hazardous machinery, operational 21 control of moving machinery, bright and/or flashing lights, 22 and noises at loud or higher level per DOT/SCO. She is 23 limited to occupations requiring only occasional peripheral 24 acuity. Her work is limited to simple, routine, and 25 repetitive tasks with no production-rate or pace work 1 involved. She can have occasional interaction with 2 coworkers, supervisors, and the public, and she should work 3 in a low stress job, defined as only occasional decision 4 making, changes in work setting, and judgment required on the 5 job. 6 At step four, applying that RFC, the administrative 7 law judge concluded that plaintiff is incapable of performing 8 her past relevant work, which was characterized as medical 9 biller, photography, parking lot attendant, and data entry 10 clerk. 11 At step five, with the assistance of testimony from 12 a vocational expert, plaintiff, the ALJ found, is capable of 13 performing available work in the national economy, citing as 14 examples office helper, cafeteria attendant, and mail clerk, 15 and concluded that she was therefore not disabled and 16 eligible for benefits. 17 As the parties are aware, the court's function in 18 this case is limited to determining whether correct legal 19 principles were applied and substantial evidence supports the 20 resulting determination. The deferential nature of the 21 standard to be applied was addressed by the Second Circuit at 22 various times dating back to Brault v. Social Security 23 Administration Commissioner, 683 F.3d 443 from 2012 and later 24 reiterated many times, including in Schillo v. Kijakazi, 31 25 F.4th 64, Second Circuit 2022. As the Second Circuit 1 explained, the substantial evidence standard means that once 2 an ALJ finds a fact, that fact can be rejected only if a 3 reasonable fact finder would have to conclude otherwise. 4 In this case, plaintiff raises two basic 5 contentions. She believes the residual functional capacity 6 finding is not supported, and cites errors in the evaluation 7 of medical opinions from Dr. Long and Nurse Practitioner 8 DeMarche, the focus being specifically on whether plaintiff 9 would be absent and off task to a degree that would be 10 disqualifying from employment, and really focusing on her 11 migraine headaches. 12 The second is a related argument that there is no 13 limitation in the RFC to account for plaintiff's migraine 14 headaches. 15 The first -- the first task of the administrative 16 law judge is to determine a plaintiff's RFC, which represents 17 a finding of the range of tasks the claimant is capable of 18 performing notwithstanding her impairments. 20 C.F.R. 19 Section 404.1545(a), Tankisi v. Commissioner of Social 20 Security, 521 F.App'x 29 from the Second Circuit 2013. An 21 RFC ordinarily represents a claimant's maximum ability to 22 perform sustained work activities in an ordinary setting on a 23 regular and continuing basis, meaning eight hours a day for 24 five days a week or an equivalent schedule, and of course an 25 RFC is informed by consideration of a claimant's physical and 1 mental abilities, symptomology, and other limitations that 2 could interfere with work activities on a regular and 3 continuing basis, as well as all the relevant medical and 4 other evidence. 20 C.F.R. Section 404.1545(a)(3). 5 In this case, the focus is on primarily medical 6 opinions in the record. Those opinions, because this case 7 involves an application that was filed after March 27, 2017, 8 is subject to amended regulations regarding the evaluation of 9 opinion evidence. Under those regulations, the Commissioner 10 does not defer or give any specific evidentiary weight, 11 including controlling weight, to any medical opinions, 12 including those from treating sources. Instead, medical 13 opinions must be determined or examined as to whether they 14 are persuasive by primarily considering whether they are 15 supported by and consistent with the record in the case. 16 20 C.F.R. Section 404.1520c. An ALJ must articulate in his 17 or her determination as to how persuasive he or she finds the 18 medical opinions of record and explain how he or she 19 considered the elements of supportability and consistency. 20 20 C.F.R. Section 404.1520c. There are other factors which 21 may be addressed but need not be stated in the explanation. 22 And of course the explanation must be sufficient to permit 23 meaningful judicial review. Importantly, in the first 24 instance, it is for an ALJ to weigh conflicting medical 25 opinions. Veino v. Barnhart, 312 F.3d 578, Second Circuit, 1 2002. 2 In this case, as a backdrop, I note that there is 3 quite a fulsome discussion of plaintiff's treatment over 4 time, including involving her migraine headaches. That 5 appears at pages 18 through 27 of the Administrative 6 Transcript. 7 The first opinion at issue is from Dr. Sara Long. 8 It is dated May 11, 2023, it appears at page 893 to 896 of 9 the Administrative Transcript. In her medical source 10 statement, Dr. Long states that she does not discern any 11 limitations regarding plaintiff's performance of simple 12 tasks. Regarding complex tasks, there appear to be mild 13 limitations post stroke. There do not appear to be 14 limitations regarding making appropriate decisions and 15 interacting adequately with others. There may be mild to 16 moderate limitations regarding maintaining attention and 17 concentration and maintaining a regular schedule. There 18 appear to be moderate limitations regarding regulating 19 emotions. Do not appear to be any limitations regarding 20 controlling behavior, maintaining personal hygiene, and 21 awareness of appropriate precautions. At the end of the 22 medical source statement, there is the typical catchall 23 statement, results of the present evaluation appear to be 24 consistent with psychiatric and cognitive problems which 25 appear to significantly interfere with her ability to 1 perform -- sorry, function on a regular basis. 2 The administrative law judge, as plaintiff has 3 argued, concluded that that was most persuasive. It was 4 addressed at page 30 of the Administrative Transcript. There 5 was a portion of it rejected. The portion that was rejected 6 was Dr. Long's further determination that the claimant had 7 mild limitations regarding complex tasks and no limitations 8 regarding interacting adequately with others, and of course 9 that inures really to plaintiff's benefit because, number 10 one, there are no complex tasks anyway in the RFC which 11 limits plaintiff to simple work, and secondly, there was a 12 greater limitation in the RFC for interacting with others. 13 The focus really is on the mild to moderate 14 limitations maintaining attention and concentration and a 15 regular schedule. Dr. Long in her examination termed 16 plaintiff's attention and concentration as intact at page 17 894, and recent and remote memory skills as intact, again at 18 page 894, although, as plaintiff has argued, she did note 19 that after five minutes, plaintiff could only recall two of 20 the objects. 21 The opinion of Dr. Long is consistent with other 22 opinion evidence in the record, including Dr. Noia's opinion 23 after his consultative examination. It's also consistent 24 with the treatment history. It is supported by exam findings 25 and plaintiff's treatment records which I have reviewed 1 carefully. As I said, the only portion that was really 2 rejected was because the ALJ found greater limitations, which 3 does not provide a basis to overturn. 4 As the Commissioner has argued, the fact that the 5 plaintiff may have mild to moderate limitations is not 6 inconsistent with the performance of unskilled work as 7 specified in the RFC. Porteus v. O'Malley, 2024 WL 2180203 8 from May of 2024, May 15th, Northern District of New York, 9 and Richard H. v. Saul, 2020 WL 467734 from the Northern 10 District of New York, January 29, 2020. So I don't find any 11 error in the evaluation of Dr. Long's opinion, and I don't 12 believe it is, in the end, inconsistent with the residual 13 functional capacity finding in this case. 14 The other medical opinion that is addressed by 15 plaintiff is from Nurse Practitioner Erika DeMarche. It is 16 dated September 12, 2023, it appears at pages 1264 through 17 1269. It lists at page 1265 several, many symptoms that the 18 plaintiff suffers from. At page 1266 it indicates, there are 19 A through P mental abilities and aptitudes needed to do 20 unskilled work in this check-box form and five categories, 21 unlimited or very good, limited but satisfactory, seriously 22 limited, unable to meet competitive standards, and no useful 23 ability to function. And with three exceptions, there is an 24 indication that plaintiff is either unable to meet 25 competitive standards or has no useful ability to function in 1 those specified domains. At page 1267, under the category 2 mental abilities and aptitudes needed to do semi-skilled and 3 skilled work, there are four categories, and according to the 4 nurse practitioner, plaintiff has no useful ability to 5 function in any of those four. On page 1268 it indicates 6 that plaintiff would likely be off task 25 percent or more of 7 the day and would likely be absent more than four days per 8 month. 9 The administrative law judge addressed that medical 10 source statement at pages 31 and 32 and found the opinion to 11 be unpersuasive. As I indicated, it is a check-box form with 12 really no explanation and although that does not, under the 13 Second Circuit's decision in Colgan, provide alone a basis to 14 discount the evaluation, it certainly limits its usefulness. 15 The administrative law judge cited several reasons for 16 discounting it. 17 One, treatment notes of the nurse practitioner 18 failed to support the disabling assessments, recognizing of 19 course that there were some adverse findings, especially 20 early on in 2023 when the nurse practitioner began treating 21 the plaintiff. 22 But the second reason is that over time, it appears 23 from the treatment notes that, and I've confirmed this by my 24 review of the notes, that gradually plaintiff's symptomology, 25 psychiatric symptomology, was reduced with treatment and 1 medication. 2 The third reason is there's no suggestion that the 3 nurse practitioner ever performed any formal testing of the 4 claimant's attention and concentration that would support the 5 opinion of plaintiff being off task and absent to a degree 6 that would preclude employment. 7 Four, the estimation that the nurse practitioner -- 8 of the nurse practitioner that claimant would be absent from 9 work more than four days per month is conjectural and not 10 supported. 11 And five, the assessment of the claimant by Nurse 12 Practitioner DeMarche is inconsistent with opinions from 13 Dr. Long and Dr. Noia. I find that that was -- constituted 14 an adequate explanation and is supported by substantial 15 evidence. 16 I did review plaintiff's treatment records and 17 included among those is Exhibit 3F from Crouse Medical and 18 there are indications there that are inconsistent with 19 plaintiff's argument concerning the intensity. 20 On August 13, 2021, at page 468 to 471, although it 21 does indicate no improvement in migraines but some reduction 22 in symptomology with medication, the statement is there's no 23 significant disability, plaintiff is able to carry out usual 24 duties and activities. That's a statement from Physician 25 Assistant Alyssa Seldes. 1 On December 1, 2021, at pages 472 to 475, there's 2 an indication no migraines recently, no symptoms at all, no 3 headaches in the past couple weeks, again from the same 4 physician's assistant. 5 On July 14, 2022, although I think that should be 6 July 2021, I think there's an error, at 476 to 478, plaintiff 7 is doing -- reportedly doing well, headaches better since 8 starting medication, no new complaints. 9 On June 21, 2021, at page 479 to 483, headaches 10 more constant since stroke but no significant disability, 11 able to carry out duties and activities. 12 So I agree with the Commissioner that the treatment 13 records do not support Nurse Practitioner DeMarche's 14 assertion or the assertion that plaintiff would be off task 15 and/or absent to a degree that would preclude employment. 16 I also note that in the prior administrative 17 medical findings which can provide substantial evidence, 18 although there is no specific statement that plaintiff can 19 maintain a regular schedule, I believe it's implicit in those 20 because those are essentially under the Regulations supposed 21 to be opinions as to whether plaintiff can perform, and if 22 so, with what limitations on a regular basis, meaning eight 23 hours a day, five days a week. 24 So in short, I believe that the result in this case 25 is supported by substantial evidence. And I don't believe 1 that plaintiff has shown that no reasonable fact finder could 2 conclude as the administrative law judge did, so I will grant 3 judgment on the pleadings to the defendant and order 4 dismissal of plaintiff's complaint. I appreciate, again, 5 your oral arguments, and I hope you both have a good 6 afternoon. 7 MS. BROWN CASEY: Thank you. 8 (Proceedings Adjourned, 11:40 a.m.) 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 1 CERTIFICATE OF OFFICIAL REPORTER 2 3 4 I, JODI L. HIBBARD, RMR, CRR, CSR, Federal 5 Official Realtime Court Reporter, in and for the 6 United States District Court for the Northern 7 District of New York, DO HEREBY CERTIFY that 8 pursuant to Section 753, Title 28, United States 9 Code, that the foregoing is a true and correct 10 transcript of the stenographically reported 11 proceedings held in the above-entitled matter and 12 that the transcript page format is in conformance 13 with the regulations of the Judicial Conference of 14 the United States. 15 16 Dated this 24th day of September, 2025. 17 18 19 /S/ JODI L. HIBBARD 20 JODI L. HIBBARD, RMR, CRR, CSR Official U.S. Court Reporter 21 22 23 24 25