Anderson v. Commissioner of Social Security

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF NEW YORK _________________________

ALICIA M. A.,

Plaintiff, v. Civil Action No. 5:21-CV-1154 (DEP)

COMMISSIONER OF SOCIAL SECURITY,

Defendant. __________________________

APPEARANCES: OF COUNSEL:

FOR PLAINTIFF

LAW OFFICES OF JUSTIN M. GOLDSTEIN, ESQ. KENNETH HILLER, PLLC KENNETH R. HILLER, ESQ. 6000 North Bailey Ave, Suite 1A Amherst, NY 14226

FOR DEFENDANT

SOCIAL SECURITY ADMIN. VERNON NORWOOD, 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) and 1383(c)(3), are cross-motions for judgment on the

pleadings.1 Oral argument was heard in connection with those motions on December 13, 2022, 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: December 16, 2022 Syracuse, NY

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK -------------------------------------------------------x ALICIA MARIE A.,

Plaintiff,

vs. 21-CV-1154

COMMISSIONER OF SOCIAL SECURITY,

Defendant. -------------------------------------------------------x TRANSCRIPT OF DECISION held on December 13, 2022 by teleconference the HONORABLE DAVID E. PEEBLES United States Magistrate Judge, Presiding

APPEARANCES (by telephone) For Plaintiff: LAW OFFICE OF KENNETH HILLER, PLLC 600 North Bailey Avenue Amherst, New York 14226 BY: JUSTIN M. GOLDSTEIN, ESQ.

For Defendant: SOCIAL SECURITY ADMINISTRATION 6401 Security Boulevard Baltimore, MD 21235 BY: VERNON NORWOOD, ESQ.

Eileen McDonough, RPR, CRR Official United States Court Reporter P.O. Box 7367 Syracuse, New York 13261 (315)234-8546 THE COURT: Let me begin by thanking counsel for excellent and, if not, spirited presentations. This is a proceeding brought pursuant to 42, United States Code, Sections 405(g) and 1383(c)(3) by the plaintiff challenging an adverse determination by the Commissioner of Social Security finding that she was not disabled at the relevant times and therefore ineligible for the benefits sought. The background is as follows. Plaintiff was born in January of 1979 and is currently 43 years of age. She was 40 years old at the alleged onset of disability on October 17, 2019. She stands 5-foot 1-inch in height and weighs approximately 120 pounds. Plaintiff lives alone in a mobile home in Mexico, New York. She is married but her husband has been incarcerated, or was at the time of the hearing, since 2018. Plaintiff has five children; in February of 2021 they ranged in age from 14 to 23. And although she shares joint custody with the father, the father is the primary custodian and the plaintiff states that she does not see her children. Plaintiff has a high school diploma and attended regular classes while in school. She also underwent a BOCES office/technical program. Plaintiff had a driver's license but it has been suspended as a result of child support issues. Plaintiff is a weekly user of marijuana and a former alcohol abuser. Plaintiff stopped working in December of 2018. After being in the Army, she worked in various positions, including as a drug tester, in retail, and a medical Medicaid transport driver. Physically, plaintiff suffers from several impediments, including cervical spine issues that have been described as disc protrusion, Type 2 diabetes, asthma, headaches, and bilateral wrist issues. Mentally, plaintiff experiences anxiety, bipolar disorder, depression, and alcohol use disorder. She was hospitalized twice in 2016 based upon suicidal ideations, but has not been hospitalized during the relevant period for psychiatric reasons. The records seem to indicate, as defendant's counsel has argued, that plaintiff's psychological conditions are exacerbated by marital issues surrounding her relationship with her husband, and at one time due to the possibility that she suffered from breast cancer. Plaintiff has obtained treatment through various sources, including Liberty Resources, where she sees Nurse Practitioner Joshua Blodgett one time per month, and Licensed Clinical Social Worker Anthony Fazzino weekly. She also sees Dr. Young Seo at Central New York Spine and Pain Medication. She treats at Prime Care Medical Center and Oswego Health. Plaintiff's activities of daily living include the ability to bathe, dress, groom, cook, clean, do laundry, go to the store occasionally, her friend takes her due to the lack of a driver's license, some socialization. She watches television. She plays video games. She reads. She goes on social media. She is able to sometimes mow her lawn but not always, and shovels some snow, although her neighbor helps in that regard. Procedurally, plaintiff applied for Supplemental Security Income Payments, or Title XVI benefits, on April 30, 2020, alleging an onset date of October 17, 2019. The record suggests that there are multiple prior denials of Title II disability insurance payment applications, possibly in 2014, 2016 and 2019, and those are the dates upon which apparently the Social Security Administration Appeals Council denied review in those cases. A hearing was conducted on February 18, 2021 by Administrative Law Judge Robyn Hoffman who addressed plaintiff's application for benefits. A supplemental hearing with a vocational expert was conducted by ALJ Hoffman on July 21, 2021. On August 4, 2021, ALJ Hoffman issued an unfavorable decision which became a final determination of the Agency on September 15, 2021, when the Social Security Administration Appeals Council denied plaintiff's application for review. This action was commenced on October 21, 2021, and is timely. In her decision ALJ Hoffman applied the familiar five-step sequential test for determining disability. She first found that plaintiff had not engaged in substantial gainful activity since April 30, 2020, the date of her Title XVI application. At step two she concluded that plaintiff does suffer from severe impairments that impose more than minimal limitations on her ability to perform work functions, including cervical spine disc protrusion, bipolar disorder, anxiety disorder, and major depressive disorder. At step three ALJ Hoffman concluded that plaintiff's conditions do not meet or equal any of the listed presumptively disabling conditions set forth in the Commissioner's regulations, specifically considering listings 1.15, 12.04, 12.06 and 12.15. After reviewing the available evidence in the record, ALJ Hoffman next concluded that notwithstanding her impairments, plaintiff is capable of performing light work as defined in the regulations with limitations both physical and mental. I'll address them in more detail during my analysis of plaintiff's arguments. At step four, applying that RFC determination, ALJ Hoffman concluded that plaintiff did not have any past relevant work to compare and proceeded to step five. Thereafter noting that if plaintiff was capable of performing a full range of light work, a finding of no disability would be compelled by the Medical-Vocational Guidelines, or the so-called grids, set forth in the Commissioner's regulations, specifically Rule 202.20, but concluded that because of the existence of additional limitations, exertional and non-exertional, that would erode the job base upon which the grids are predicated, contacted and consulted with a vocational expert. After posing a hypothetical to the vocational expert that tracked the RFC finding, she concluded based upon the vocational expert's testimony that plaintiff is capable of performing work that is available in the national economy, citing as representative positions those of router, an automatic car wash attendant, and small products assembler, and concluded that plaintiff is, therefore, not disabled. As you know, the Court's function is to determine whether correct, legal principles were applied and the resulting determination is supported by substantial evidence, defined as such relevant evidence as a reasonable mind would find sufficient to support a conclusion. As the Second Circuit has noted, this is an extremely deferential standard that was noted in Brault versus Social Security Administration Commissioner, 683 F.3d 443, from June of 2012, and reiterated in Schillo v. Kijakazi, 31 F.4th 64, from April 6, 2022. In the Brault case the Second Circuit noted significantly that under the standard to be applied, if an ALJ finds a fact, that fact can be rejected only if a reasonable fact-finder would have to conclude otherwise. In this case plaintiff raises three basic arguments. She argues that the residual functional capacity was not supported, attacking both the physical and the mental components. Secondly, she argues that the Administrative Law Judge's analysis of the medical opinions and the record is flawed and inconsistent with the governing regulations. And third, she challenges the analysis of her subjective complaints as not being supported by substantial evidence. Of course, the first task for an Administrative Law Judge is to determine a claimant's RFC, which represents a finding of the range of tasks she is capable of performing notwithstanding her impairments. Tankizi versus Commissioner of Social Security, 521 F.App'x 29, at 33, Second Circuit 2013, and is also addressed in 20 CFR Section 416.945(a). An RFC represents the claimant's maximum ability to perform sustained work activities in an ordinary setting on a regular and continuing basis, meaning eight hours a day for five days a week, or an equivalent schedule. An RFC, of course, is informed by consideration of all relevant medical and other elements and to be upheld must be supported by substantial evidence. In this case the RFC finding turns primarily, although not exclusively, on the medical opinions in the record. Plaintiff challenges, as I indicated, both the physical and mental aspects of the RFC. When medical evidence is assessed by an Administrative Law Judge in cases where applications were filed after March of 2017, the so-called new regulations control. Under those regulations an ALJ no longer defers or gives any specific evidentiary weight, including controlling weight, to any medical opinion or prior administrative medical findings, including from a claimant's medical sources. Instead, the ALJ must consider those opinions using the relevant factors and specifically must address and consider the factors of supportability and consistency of those medical opinions. The ALJ must articulate how persuasive he or she finds each medical opinion and must explain how he or she considered the supportability and consistency of those medical opinions. The other factors must be considered, but the ALJ is not required to explain how he or she considered those factors as appropriate in any particular case. In this case the physical components of the RFC were explained by the Administrative Law Judge at pages 16 and 17 of her decision. She based the physical components of the RFC on state prior administrative findings of Dr. Ahmed at 6A and Dr. Saeed at 3A. They are extremely similar. The only difference comes in the ability to climb ladders, ropes, and scaffolds; Dr. Ahmed opined never, Dr. Saeed occasionally, which is consistent with the RFC, and therefore supports it. The ALJ rejected the environmental limitations set forth based upon the fact that she did not find and nor did the doctors find plaintiff's respiratory condition to be severe. The Administrative Law Judge did add greater manipulative limitations to accommodate the carpal tunnel syndrome treatment that plaintiff experienced after the issuance of those prior administrative findings. That error, however, did not harm the plaintiff. The RFC does include manipulative limitations limiting plaintiff to frequently handle, finger, and feel with bilateral hands. The opinions of state agency consultants such as Dr. Ahmed and Dr. Saeed can provide substantial evidence to support an RFC determination. Woytowicz v. Commissioner of Social Security, 2016 WL 6427787, from the Northern District of New York, October 5, 2016; and Angela B. versus Commissioner of Social Security, 2020 WL 17247244, from the Western District of New York, November 28, 2022. The staleness argument that the plaintiff has raised, I find no merit. It depends upon evidence that there would have been significant deterioration in plaintiff's condition since the issuance of those opinions. The only change that I could discern concerned the ability to manipulate with the hands. There doesn't appear to be evidence of significant deterioration of plaintiff's cervical condition and the limitations associated with those. So I find that the plaintiff has failed to carry her burden to prove greater physical restrictions than those set forth in the RFC is warranted. Turning to the mental component, the RFC, it should be noted, is extremely limiting. The residual functional capacity limits plaintiff in terms of mental capability as follows. The claimant should work at simple, routine and repetitive tasks. The claimant should work in a low-stress job defined as occasional decision-making, occasional judgment required, and occasional changes in the work setting. The claimant should work at goal-orientated work rather than production pace work. Claimant should have occasional contact with co-workers, supervisors, and the public, but would be able to interact with others sufficiently in order to complete a brief training period running from one to two days up to thirty days. Again, extremely limiting. The mental component is based upon the medical opinions of Dr. Shapiro, and I'll outline these in a minute, to some degree Licensed Clinical Social Worker Fazzino and Nurse Practitioner Blodgett, and somewhat on opinions from state agency consultants Dr. Juriga and Dr. Kamin. The first of those, of course, is Dr. Jeanne Shapiro. Her opinion is dated September 23, 2020, and it appears at 356 to 360 of the record. The medical source statement finds basically no limitations in the ability to understand, remember, or apply simple or complex directions or instructions, or using reason and judgment to make work-related decisions. Dr. Shapiro finds a mild to moderate limitation in plaintiff's ability to interact adequately with supervisors, co-workers, and the public. She finds that plaintiff may be mildly to moderately limited in her ability to sustain concentration and perform a task at a consistent pace depending on her level of anxiety. She further finds that plaintiff is moderately limited in her ability to sustain an ordinary routine and regular attendance at work, and moderately limited in her ability to regulate emotions, control behavior, and maintain well-being. This opinion was discussed by the Administrative Law Judge at page 17 and found to be supported by the medical evidence in the record, including exam findings which show improvement with treatment and provides substantial support for the RFC. The second opinion in the record, there are two, one from Dr. M. Juriga dated October 5, 2020, and from Dr. E. Kamin from October 16, 2020. These are found at Exhibits 3A and 6A, respectively. They find that plaintiff's mental condition is not severe. That's at pages 98 and 112. The ALJ found that those determinations were somewhat consistent with benign evaluations of Dr. Shapiro and other exams, but did not find it to be consistent with plaintiff's need for ongoing mental health treatment. That's discussed at page 17. I find no error. Interestingly, in assessing the so-called B criteria under the step three determination in the regulations, Dr. Kamin found no limitations in plaintiff's ability to understand, remember or apply information, mild limitation in the ability to interact with others, mild limitation in concentration, persistence and pace, and mild limitations on the adapting and managing oneself. Similarly, Dr. Juriga found no limitation in the understanding, remembering, and application of information, mild in interacting with others, mild in concentration, persistence and maintaining pace, and mild in the ability to adapt or manage oneself. And although the findings at step three, the B findings, do not necessarily represent the residual functional capacity or translate in that regard, they do provide support for the ALJ's determination. The other opinions in the record that speak to plaintiff's mental condition, there were two; one is from Nurse Practitioner Joshua Blodgett from January 11, 2021, that appears at 740 and 742 of the Administrative Transcript, and Therapist Anthony Fazzino from December 21, 2020, appearing at 737 to 739 of the Administrative Transcript. They're nearly identical. They're extremely restricting. Nurse Practitioner Blodgett, after reciting the symptoms that plaintiff experiences, found that plaintiff is unable to meet competitive standards in four areas under the category mental abilities and aptitude needed to do unskilled work, and no useful ability to function under that category in eight subcategories. He also found under mental abilities and aptitude needed to do particular types of jobs, that plaintiff is unable to meet competitive standards in three areas, and for explanation stated the following, under the first subcategory: Alicia has limitations in her ability to remember, maintain periods of work function if any at all, trouble with follow through and struggles to manage symptoms consistently. And under the second: Alicia's mental health symptoms interfere with her ability to do or achieve any work-related functions. Therapist Fazzino in his medical source statement found that plaintiff is unable to meet competitive standards in four areas under mental abilities and aptitude needed to do unskilled work and no useful ability to function in eight, stating that plaintiff has attempted in the past but is limited by ability to remember, stay on task, follow through, and manage symptoms effectively. He also found that plaintiff is unable to meet competitive standards in three areas, and seriously limited, but not precluded, in two under mental abilities and aptitude needed to do particular types of jobs. The Administrative Law Judge considered these opinions, found them somewhat persuasive, page 17, but found them to be inconsistent with medical exams. She noted that there are no treatment notes from Therapist Fazzino. Plaintiff argues that this creates an obvious gap in the record that required the Administrative Law Judge to fill. It was noted, however, that there were periodic reviews in the record which show some of Therapist Fazzino's treatment. And I note at page 36 and again at 55, plaintiff's counsel during the two hearings stated that the record was complete. I conclude that there was no obvious gap. And in any event, the argument was waived when counsel stated that the record was complete. Gilbert H. v. Saul, 2020 WL 6146596, from the Northern District of New York, October 20, 2020. The record in my view is adequate for the decision, for the Administration Law Judge's decision. There are mental health findings of not only Nurse Practitioner Blodgett, but several other treatment providers of the plaintiff. And plaintiff has failed to show how obtaining Therapist Fazzino's notes would have changed the result. Reices-Colon versus Astrue, 523 F.App'x 796, from the Second Circuit, May 2nd, 2013. I have reviewed carefully plaintiff's treatment records in the Administrative Transcript. There are treatment records from several providers, including Prime Care Medical Center where she saw Nurse Practitioner Cassandra Hunsberger; Central New York Spine and Pain Medicine, LLC, Dr. Young Seo primarily; Oswego Health where plaintiff saw several nurse practitioners and appears to be perhaps her primary health provider; Oswego Hospital; Liberty Resources, including Therapist Fazzino and Nurse Practitioner Blodgett, and Crouse Medical Practice Neurology. A careful review of those records reveals that they consistently show primarily a lack of significant psychological issues. Typical of many entries is one from Central New York Spine and Pain, at 346: Plaintiff awake and oriented, normal ST, short term, and LT, long term, memory, normal mood and affect. That's from May of 2020. Oswego Hospital note, normal affect at 598, 630 and 460. From Liberty, Nurse Practitioner Blodgett, at 659, affect full and congruent, judgment, insight unremarkable. And that's typical of several other notations from CNY Spine. Typical is denies anxiety, depression and suicidal ideation. That's at 730 from November 16, 2020. From Oswego, at 772 and 791, grossly oriented to person, time and place, judgment, insight and memory intact, normal mood, appropriate affect. And these are typical of many, many, many entries in the plaintiff's treatment records. I recognize that some of these are from providers that were of plaintiff's physical condition, but nonetheless, they are observations that the Administrative Law Judge is entitled to take into consideration. The medical evidence, including especially Dr. Shapiro, provides adequate support for the RFC, including the limitations in concentration, persistence and pace, which are entirely consistent with simple work, goal-oriented. Dr. Shapiro's opinion is consistent with the limited mental aspect of the RFC. Diakogiannis v. Astrue, 975 F.Supp. 2d, 299, from the Western District of New York, September 30, 2013. Tamara M. versus Saul, 2021 WL 1198359 from the Northern District of New York, March 30, 2021. And see also Lander v. Colvin, 2016 WL 1211283, from the Western District of New York, and that is from March 29, 2016. The issue of contact, the probationary period contact is included in the RFC. It is supported for the most part by Dr. Shapiro who found moderate, mild to moderate limitation. Moderate limitation is consistent with frequent in terms of the meaning of the term in Dr. Shapiro's report, and this is consistent with Sharon R. v. Kijakazi, 2021 WL 3884257, from the Northern District of New York, August 31, 2021. It is also supported in -- Sharon R. cites also to another case that is supportive, Jodi B. v. Commissioner of Social Security, 2021 WL 3682736, from the Western District of New York, August 19, 2021. In my view, Dr. Shapiro and the vocational expert together support the additional interaction with supervisors and co-workers during the probationary period. So, in sum, I find that the residual functional capacity is supported by substantial evidence and the Administrative Law Judge correctly assessed the medical opinions in the record. The last argument surrounds evaluation of the plaintiff's symptoms, what we used to call credibility. An ALJ obviously must take into account subjective complaints of a plaintiff in making his or her step five disability analysis, but is not required to unquestionably accept any subjective testimony by a claimant. Rather, the RFC, the ALJ retains the discretion to evaluate the claimant's subjective testimony, including testimony concerning pain or otherwise; Mimms v. Heckler, 750 F.3d 180, at 185 to 186, Second Circuit, 1984. In deciding how to exercise that discretion, the ALJ must consider a variety of factors which would ordinarily inform the question of credibility in any context, including the plaintiff's believability, his or her motivation, and the medical evidence in the record. In doing so, an ALJ must reach an independent judgment concerning the actual extent of limitations suffered by the plaintiff and its impact on her ability to perform work functions. Notably, an ALJ's determination as to a claimant's subjective complaint is entitled to considerable deference. Edward J. v. Kijakazi, 2022 WL 4536257, Northern District of New York, September 28, 2022. See you also Virginia D.F. versus Commissioner of Social Security, 2022 WL 4652361, Northern District of New York, August 19, 2022. The plaintiff testified that she is unable to work due to her mental condition. That's at page 57. The Administrative Law Judge considered in addressing the issue of credibility plaintiff's treatment notes; relatively robust activities of daily living, her ability to cook, clean, do laundry, socialize; the fact that as treatment notes reflect often denied psychiatric or psychological problems; the fact that treatment notes showed improvement with treatment; and plaintiff's desire to reduce her medications. In dealing with her neck pain, the objective evidence was relatively modest. An MRI showed modest findings of a bulging disc. The EMG studies showed no radiculopathy. The carpal tunnel syndrome claim is not supported by testing, with findings of normal grip, strength and so forth. In sum, I find that the Administrative Law Judge's determination and how she exercised her discretion is supported by substantial evidence. The bottom line is that this is a deferential standard of review. I find that the determination is supported by substantial evidence and that the plaintiff has failed to demonstrate to the Court that no reasonable fact-finder could find the facts as the Administrative Law Judge in this case. So I will grant judgment on the pleadings to the defendant and order dismissal of plaintiff's complaint. Thank you both for excellent presentations. I hope you have happy holidays. * * * Decision - 21-cv-1154 20

I, EILEEN MCDONOUGH, RPR, CRR, Federal Official Realtime Court Reporter, in and for the United States 6 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 9 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. Leen MeDoneugh EILEEN MCDONOUGH, RPR, CRR Federal Official Court Reporter